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the prize be taken by a ship or vessel acting under his command, and the commander of single ships two-twentieths; but where a prize is taken by a ship acting independently of such officer, the three-twentieths shall belong to the commander.”
To my inind, these provisions of law are plain, and admit of no doubt in their application to this case. The conımander of the squadron to which the two gan boats above referred to were attached, is, under this law, clearly entitled io one-twentieth of the money appropriated by Congress ; and he is the only individual in reference to whose claims in the premises you have expressed a doubt.
It is also to be observed, that the last clause of this same section of the act of April 23, 1800, (which is added to the section by way of modification or exception to the foregoing rule for distributing prize-money,) throws additional light upon its true meaning. This clause provides that "no commander of a fleet or squadron shall be entitled to receive any share of prizes taken by vessels not under his immediate command, nor of such prizes as may have been taken by ships or vessels intended to be placed under his command, before they have acted under his immediate orders; nor shall a commander of a fleet or squadron, leaving the station where be had the command, have any share in the prizes taken by ships left on such station, after he has gone out of the limits of his said command."
I repeat, therefore, that these provisions of law appear to me to be plain, and indicate very clearly the intention of Congress in relation to the commander of the squadron to which the two gun-boats referred to belonged, was, that he shall receive his due proportion of the money specially appro priated in this law, as in ordinary cases of prizes.
I am, sir, &c., &c.,
FELIX GRUNDY. To the SECRETARY OF THE Navy.
ATTORNEY GENERAL'S OFFICE,
April 15, 1839 SIR: I have had the honor to receive your communication relative to the claim of Joseph Jackson, for the value of a horse owned by him, and impressed by James Edwards, a quartermaster of militia or volunteers, inte the service of the United States. If the claimant's horse was actually im pressed into the service of the United States, by an officer duly authorized to make the impressment, and was thereby lost to him, there can be no doubt that he is entitled to a fair remuneration for such loss. The universal priociples of justice, and the constitution of the United States, equally require that private property shall not be taken for public use without just compensation. If, therefore, the impressment was made in the present case by an officer or person duly authorized to make it, the only farther question that can arise, is, by whom and in what manner shall the compensation be made ? Il appears, from the report of the Third Auditor (Mr. Hagner) to you, on the subject of this claim that the late Attorney General, while acting as Secretary of War ad interim, decided, substantially, in an apalagous case, that the War Department had no general authority to make the compensation ; and that it had been usual for Congress to provide by a special law for these cases. And I can discover no reasons or principles which will authorize me to recommend a different doctrine os
the subject. It is undoubtedly the duty of Congress to provide by law for a prompt and just compensation to individuals whose property is thus seized; but, until Congress has provided by law for such cases, and appropri. ated money out of the national Treasury for such objects, the War Departnent can have no authority over the subject.
I have purposely avoided inquiring into the authority of the quarternaster to make the impressment in this case, or into the sufficiency of the sroof offered by the claimant iu support of his claim to compensation. And ny previous remarks have been founded entirely upon the presumption hat Mr. Edwards, the quartermaster, had authority to impress in the manjer he did ; that the evidence offered by the claimant is sufficient to estabish the fact of the impressment; and that the property was applied to the se of the United States. If either of these presumptions is, however, egatived by the facts of the case, (as seems to be the opinion of the Third uditor,) then the claimant could not have the relief asked for, even if the Var Department were clothed with the authority to grant relief in such ises, and money had been appropriated from the Treasury for that puruse. If a person makes an impressment who has no authority to do so, e individual, and not the United States, is responsible in damages for e act. Having come to the conclusion that Congress alone can grant e relief asked for, any further remarks from me on the subject are uncessary.
I am, sir, &c., &c.,
FELIX GRUNDY. To the SECRETARY OF War.
ATTORNEY GENERAL'S OFFICE,
April 16, 1839. IR: I have had the honor to receive your communication relative to claim of John Compton, assignee of Garrigues Flaujac. his claim is set up under the act of Congress approved June 15, 1832, led “ An act to authorize the inhabitants of the State of Louisiana to r the back lands;" and the act of Congress supplementary thereto, ap. ed February 24, 1835. he first clause of the first section of the act of June 15, 1832, is in the ving words : “ That every person who, either by virtue of a French panish grant recognised by the laws of the United States, or under a
confirmed by the commissioners appointed for the purpose of ascer. g the rights of persons claiming lands in the State of Louisiana, or rtue of any title derived from the United States, owns a tract of land ring on any river, creek, bayou, or watercourse, in the said Territory, ot exceeding in depth forty arpens, (French measure,) shall be entitled reference in becoming the purchaser of any vacant tract of land ad
to and back of his own tract, not exceeding forty arpens (French re) in depth, nor in quantity of land that which is contained in his ract, at the same price, and on the same terms and conditions, as are 7 be provided by law for the other public lands in the said State." s provision of law clearly gave to those inhabitants of Louisiana who It the time of the approval of the act, owners of a tract of land situ1 any river, creek, bayou, or watercourse, and to those only, the right
to enter an additional quantity in the rear thereof. The act does not apply to those who may become owners thereafter, nor 10 those who may have been owners of land before ; but to those only who were owners of any tract of land, in the manner described by the act, at the time of its approval
. Those persons who were entitled to the benefits of this act, were also required to make the entry within three years from the date thereof; which time was, however, by the supplemental act of February 24, 1835, extended to the 15th of June, 1836. This supplemental act was not intended to enlarge the benefits conferred by it, in any other respect than in point of time. The only remaining inquiry, therefore, is, was Compton or his assignee (Flaujac) the owner of a tract of land, as described in the act of June 15, 1932, at the date of its approval? I will proceed to answer this inquiry
On the 20th of May, 1826, an act of Congress was approved, entitled "An act for the relief of Garrigues Flaujac, of Louisiana ; and the following is the whole of the act:
* Be it enacted, foc., That Garrigues Flaujac, of the county of Opelonsas, in the State of Louisiana, or his legal representatives, are hereby authorized and empowered to locate a certain tract of land, derived from an order of survey in favor of Louis Berton de Antilly, for three thousand two hundred (3,200) superficial arpeus of land, being forty arpens in frout by forty arpens in depth, on both sides of bayou Grosse Téte, in Louisiana and which said tract of land was confirmed by an act of Congress dated the 28th day of February, 1823, in conformity with the report of the regis, ter and receiver of the eastern land district of Louisiana ; the said tract of land thus confirmed having been surveyed and sold by the C'nited States which location shall be made upon any of the unappropriated public lands in the southwestern district of Louisiana, south of the Red river: Provided That the said location shall
, as far as possible, be made in one body, and conform as nearly as practicable to the lines of the public surveys: And provided, also, That the said Garrigues Flaujac, or his legal representatives
, before such location, shall release to the United States, in such manner as the Commissioner of the General Land Office shall direct, all his right, title, claim, and interest, in the land heretofore confirmed to him on the said bayou Grosse Tête; and the said release and location shall be made in one year from and after the passage of this act.”
In this act is comprised a history of this claim, from its inception up that date; and the supplemental act of May 1, 1934, still further extends the history. It is in the following words: « That Garrigues Flaujac, of Louisiana, or his legal representatives, be
, and they are hereby, authorized to locate the tract of land of three thousand two hundred arpens, described in the act to which this is supplementary, upon any of the unappropriated public lands in the southwestern district of lands south of Red river, in portions of not less than eight hundred superficial arpens, conforıning, as nearly as practicable, to the lines of the public surveys: Provided, That, in addition to the release heretofore ese cuted, the said Flanjac shall further, within one year from the passage this act, release to the United States, in such form as the Commissioner a the General Land Office may direct, all right, title, and claim to or iu any lands heretofore located pursuant to the act of which this is a supplement : And provided, further, That the new location herein authorized shall be made in one year from and after the passage of this act."
Pursuant to the provisions of this act, an entry was made of the tract in front of the one now claimed, and situated on Red river. This being done, the tract of land now claimed, and lying in the rear of that thus entered, was claimed as a back pre-emption, under the law of June 15, 1832, already referred to ; and on the 24th of May, 1836, the land officers at Opelousas allowed this additional entry to be made under the law. This entry, however, the Commissioner of the General Land Office considered not warranted by the law, and refused to sanction it by any official act of his; and he asked your instruction on the point whether the said tract of land was subject to entry as a back pre emption : which question is referred by you to me. · Upon a view of the foregoing facts, it appears clearly that, at the date of the act of June 15, 1832, the legislative grant made by Congress to Flaujac was unlocated ; and could not, therefore, be considered as complete, in respect to this or any other particular tract or parcel of land. Flaujac was Lot, therefore, the owner of this particular tract, under the law of 1826 for his relief, at the date of the law of 1932; and could not be entitled to its benefits. Nor was he entitled to the benefits of this law under the supple. nental act of 1935; which, as before stated, merely extended the time withn which an entry might be made by a person entitled under the provision f the former act. Nor can I discover that the claimant has any right to he land in controversy, as an incident to an original Spanish title of which e is the assignce; for, if he might otherwise have had such a right, the ws referred to afford positive proof of its having been expressly relinnished by his assignor. My opivion, therefore, is, that the land in controversy was not subject to e-emption under the act of June 15, 1832, entitled "An act to authorize e inhabitants of the State of Louisiana to enter the back lands," nor unr the provisions of the act supplemental thereto. I am, sir, &c., &c.,
FELIX GRUNDY. l'o the SECRETARY OF THE TREASURY.
ATTORNEY GENERAL'S OFFICE,
April 18, 1839. IR: I have had the honor to receive your cominunication of the 13th aut, relative to the claims of Doctor Glenn and others to enter lands er the pre emption laws, in which my opinion is asked upon the legal itions involved in the said claims. he main question involved, is, whether the land claimed is subject to y under the pre-emption laws; or, on the contrary, has been reserved taken out of the class of public lands, and consequently withdrawn the operation of those laws? In accordance with the request cond in your letter, I shall proceed to answer this inquiry. i the 3d of March, 1817, an act of Congress was approved, entitled act to set apart and dispose of certain public lands for the encourage
of the cultivation of ihe vine and olive." The title of this act very y explains its general nature and design. It was to appropriate a ceriortion of the public domain for the encouragement of the cultivation > vine and olive. In accordance with this general design of Congress, dy of the act provided that four contiguous townships of land, in a n land district within the then Territory of Mississippi, (now the State
of Alabama,) should be set apart from the class of public lands, and reserved from public and private sale, and devoted to the objects and purposes specified in the law. Pursuant to this law, four townships of land, including the land now claimed by Doctor Glenn and others under the pre-emption laws, were actually reserved ; and that portion of the language of the law which makes the reservation, makes it without modification or limitation and the reservation, being thus made indefinite and unlimited by the law, must necessarily have so continued ever since, unless some subsequent legislation of Congress has altered its nature and extent. The next in. quiry, therefore, is, has any such legislation taken place?
I have carefully examined the various acts and supplements of acts of Congress, &c., professing to alter or amend the act of March 3, 1817, under which the original reservation was made, (namely, the acts approved April 26, 1822; February 19, 1831 ; February 19, 1833; and March 2, 1837;) and can discover in them no intention on the part of Congress to throw back into the class of public lands the four townships above referred 10. Nor can I discover in either of the pre-emption laws any evidence warranting the conclusion that the National Legislature designed that these lands should be subject to the operation of ihose laws. On the contrary, their provisions appear to me plainly to manifest an opposite intention on the part of the Legislature; for all of these expressly provide that lands reserved by law shall not be subject to entry under their provisions. It is also a very strong, if not conclusive, consideration in favor of the same opinion, that it was no part of the general motive and intention of the Le gislature, in making the pre-emption laws, to throw back into the class of public lands, and subject to the operation of the general land system of the nation, those tracts which had been excepted and taken out of them bp some special law, and for some special purpose. But the true design of those pre emption laws was to give pre emption rights to settlers upon these lands which undeniably belonged io the class of public lands, and were subject to the operation of the general land laws of the United States.
My opinion, iherefore, is, thai as those lands only are subject to the right of pre-emption which belong to the class of public lands, and which, but for the pre-emption laws, would be subject to the operation of the general land system of the country; and that, as Congress has excepted and taken the land in controversy out of the class of public lands, and has never man ifested any intention on its part to replace them, or subject them to pita emption entries,--the original reservation must be considered as still in forte, and the four sections of land now in controversy as not subject to entry in the manner claimed by Doctor Glenn and others. Were any thing furiter necessary on this subject, a conclusive argument as to the intention of Congress is furnished by the act of 2d of March, 1837; by the 2d sectad. of which, it is expressly provided that any remainder of said four sections not disposed of by the Ist section of this act, shall be subject to entral one dollar and twenty five cents per acre, by the trustees of the Demopolis Female Academy, in irust for the use and benefit of said institution,
The first section of this act had made provision for those who held elejti to portions of said four sections of land under the Tombigbee Association and by the 2d section, a right to enter the whole residuum is vested in the Demopolis Female Academy, thereby excluding all other purchasers. I am, sir, &c., &c.,
FELIX GRUNDY To the SECRETARY OF THE TREASURY.