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private entry, except such as are claimed by pre-emption,” &c., and can be applied, at the rate of $1 25 per acre, in the same manner as money.
By reference to vol. 2, Laws, Instructions and Opinions, page 436, you will see instructions dated November 16, 1830, applicable to scrip of a like character; and you are required, in the surrender of scrip, under Act of August 31, 1852, and in the returns thereof to this Office, to conform your action according to the rules set down in the said instructions of November 16, 1830. Clause marked “ First, as to location," is not applicable to the present scrip.
You are also advised, that, as this scrip is receivable only for lands“ subject to private entry,” pre-emptors cannot use it in payment for unoffered land which may be claimed by them.
No charge can be made for the location of said scrip; and after its surrender and before being returned to this Office, it should be properly cancelled. Respectfully, your obedient servant,
John Wilson, Commissioner. Register Land Office.
ATTORNEY GENERAL'S OFFICE,
May 30, 1858. Sir :-In 1784, Virginia ceded to the United States the largest and most valuable body of land that ever belonged to the public domain of any State State of Virginia, has, in some respects, the qualities of real, and in some of personal estate; but the determination of who is entitled is independent of that question, being specially defined by acts of Virginia or of the United States.-(Opinion, November 11, 1854, vol. 7, p. 32.)
The decisions of the courts of Virginia in regard to conflicting claims to bounty land warrants, under the laws of that State, are to be considered as determining their relative rights, and to be respected by the United States.--(Opinion, March 10, 1856, vol. 7, p. 652.)
But where it has not been satisfactorily determined, by the courts of Virginia, which of two persons “presenting' themselves is the true party entitled, the Secretary of the Interior may well refuse to issue scrip to either.--Ib.
As to error as to date, referred to in Act of Congress of 29th April, 1816, by which a report of 14th December, 1812, was mentioned in the act, as dated 4th December, 1812, the enquiry was made of the Attorney-General, whether such error is fatal to the confirmation of any claim embraced by the said report of the 14th December, 1812.
The reply of Attorney-General Legaré was: “ The construction of a statute is placed by the law in very much the same category as that of wills, (Butler and Baker's case, 3 Reps. 27,) and such an erroneous recital in a will would clearly be susceptible of correction by parol evidence. In addition to this, I have the honor to refer you to the case of Ross v. Borland's Lessee, 1 Peters, 655, in which the court ruled almost the very point in question here."
The case referred to is under an act which conferred pre-emption rights on persons who,“ on that day, in the year 1797, when the country was evacuated by Spanish troops,” &c. Such evacuation did not take place until 1798, in March or April. The court held that the act intended to confer a bounty, and it was entitled to a liberal construction in favor of the beneficiaries; that the error in date was immaterial, as the time of the evacuation, and not a particular date, was the essential object of the statute.
The owner can relinquish his scrip in payment for lands purchased in the name of another party, thus obviating the necessity of assignments in such cases.--(See Letter of Commissioner to Register and Receiver at Jackson, Mo., Dec. 13, 1858.)
in the world. But previous to the cession she had promised to give certain portions of it to the officers, soldiers, sailors, and marines, who had served during the revolutionary war in her army and navy. She did not strip herself of the power to fulfil this promise without exacting a pledge that it should be fully redeemed by the Government of the Union. She was generous to her sister States, but she was at the same time true to her own defenders.
The obligation of the United States to satisfy the claims of the Virginia officers and soldiers has never yet been denied by any Department of their Government.
Nor has it ever been doubted, as a general principle, that the claims ought to be settled and adjusted according to the laws of Virginia, and by such tribunals as she, in her own wisdom, might see proper to charge with that duty. What a soldier may be entitled to, is a question of State law; and it is not consistent with the spirit or genius of this Government to interfere with the administration of State laws, or to expound their meaning. When a question is incidentally raised upon them before an officer, or in the courts of the United States, the interpretation they have received in the State is of binding obligation.
At every step which Virginia took in this business, she asserted in words or by clear implication, her right to decide, through her own authorities, upon the validity and amount of the claims made for military bounty land under her laws. She conferred the power successively on her register of the land office, commissioner of war, governor and council, without providing in any case for an appeal.
You ask me if these decisions are in the nature of judicial expositions of the law, and therefore binding. Undoubtedly they are in their character so far like a judicial sentence that they are conclusive upon the parties and their privies. When the constitution or law of any State authorizes a person to decide a given question, the judgment of such person is always conclusive. It makes no difference whether it be a court, a legislative body, an executive officer, or a special tribunal appointed for the purpose. The authority to hear, examine, and decide without appeal, carries with it the power to determine it forever; to make an end of all controversy about it, and to close it against all future inquiry upon either the facts or the law. When, therefore, the State of Virginia authorized the governor and council to settle these claims, a decision regularly made by those officers was as conclusive as if the same jurisdiction had been given to and exercised by the Supreme Court.
But while these decisions are in their own nature conclusive, and by the laws of Virginia must be so regarded, I am not ready to assert that Congress cannot require you to disregard them. It might be an offence against the principles of public morality, an act of perfidy, and a grievous wrong upon the State, to command that all the cases should be overhauled in your Department: but you would still be bound to obey. When Congress was
right to couple the authority with what conditions it pleased; and if a harsh and unfair condition was imposed, the law is not void for that reason. The doctrine of estoppel has no application whatever to legislative acts. The laws passed by Congress are therefore to be the lamp for your feet and the guide to your path.
There is no act of Congress which impugns the right of Virginia to expound her own laws on the subject of bounty lands, or which makes any federal officer a judge of the facts on which a soldier's claim to such lands
may be based, unless the Act of 31st August, 1852, be an exception. Let us see whether it is or not.
That act provided that outstanding bounty land warrants of this kind, which had been issued previously to the 4th of March, 1852, by the proper authorities of Virginia, might be surrendered to the Secretary of the Interior, and scrip given in place of them. Thus far there is no denial of the State jurisdiction. On the contrary, the action of the State authorities is made the basis of your whole conduct. Under this provision, if any man should come to your Department demanding scrip for revolutionary services in the Virginia line without a warrant from the proper authorities' of that State, you would tell him that he had no shadow of right. The want of an adjudication in his favor at home would be so fatal that no proof, however overwhelming, of his right on original grounds, would supply the defect. It is clear, therefore, that a decision by the Virginia authorities is final and conclusive against the claimant.
But it is contended, in some quarters, that a decision in favor of the claimant is no protection of his right, that it adds no strength to his claim, and that you are bound to look upon it as a mere nullity. If this be true, you must re-examine every case, and if there should be any defect in the proof, or if you differ from the State authorities about their law, you must be governed by your own opinion, without any respect whatever for theirs. A claimant who thinks he has proved his right and got a judgment upon it from a tribunal of competent jurisdiction, must now be taught to understand that the whole proceeding was mere vanity and vexation of spirit, which might have barred him forever, but could not help him forward one step. The adjudication in his favor may have been forty years old; it may have been founded on documentary evidence now lost; on oral evidence never recorded; or, perchance, on the personal knowledge of the governor or council. It is impossible for you to rejudge these cases now with the slightest hope of doing justice, since you cannot read the ashes of burnt papers, nor call dead witnesses from their graves to testify. History has given us no more than an outline of the great public events which occurred in the war of the revolution, and even that outline is dimly traced. But who shall now, after three generations have lived and died, be able to tell you minute circumstances in the life of an obscure man, holding a subal. tern office or serving in the ranks ? A law which refuses to pay a public debt already established by competent authority, unless it is fully proved again by such evidence as the creditor may be able to fish up from the oblivion of eighty years, is the same thing to all practical intents and purposes as a repudiation of that debt. But if Congress has done this thing it is not your fault nor mine.
Those who maintain this to be the true construction of the Act of 1852, derive their notion from that provision which requires you to be satisfied that each warrant was “fairly and justly issued according to the laws of Virginia.” But I think it is a manifest and most palpable error.
Your examination is confined to the fairness and justness which gave character to the act of issuing the warrant. The law does not direct you to investigate any thing else ; and it gives you the laws of Virginia as the standard by which you are to measure its fairness and justness. What then is an issuing fairly and justly according to those laws? Fairly means honestly in this connection, if it means any thing at all. A warrant frauduently issued is not fairly issued. For instance, if the Register should issue one for a claim which had been rejected by the governor and council, you would regard it as void because not fairly issued according to the laws of Virginia. Philologists differ about the origin of just ; but the question is not important whether it comes from jus a law, or jubere to command, since all agree that in its primary and proper signification, justly means regularly, duly, in the way prescribed by law. If you find one of these warrants to have been honestly and regularly issued, it was fairly and justly issued; for the two phrases are synonymous. I know not how it came to pass that your duty to satisfy yourself of the legal regularity and honesty with which a warrant was issued included the power to try over again the questions of fact and law which were settled by the governor and council. It would be difficult to believe that Congress meant anything so inconsistent with the national honor, even if they had said it; but here, the contrary is expressed in words of which the sense can hardly be mistaken.
It is true that you are authorized to revise the proofs and take additional testimony. But to what end, and for what purpose ? Not that you may pick flaws or find defects in the opinions given by the governor and council, but solely to convince yourself that there was no dishonesty, no irregularity, nor no violation of law in the issuing of the warrant. The authority to take testimony for a particular purpose, clearly defined, certainly does not require you to perform a totally different function already performed by others in the regular discharge of their legal duty. A sheriff is bound to see that an execution is regularly issued in due form and by the proper officer, but it does not follow that he may therefore review the proceedings of the court and set aside the judgment.
Fairly, justly, according to the laws of Virginia,—these words taken separately, or all together, amount to no more than what might have been said in a single word-regularly or legally. The only difficulty arises out of that overflowing redundancy of expression for which the framers of statutes have such a fondness, that they often obscure their meaning by it.
Believing, as I do, that you cannot go behind the adjudications of the governor and council, and taking it for granted that such will be your own view, I need not answer your other questions. But I may as well say, in closing, that if it were my duty to give an opinion on the rights of the staff officers, it would be in full concurrence with the Executive of Virginia. The judgments they have obtained in their favor were not only pronounced by competent authority, but were, in themselves, entirely proper and legal. I am, very respectfully, yours, &c.,
J. S. BLACK. Hon. Jacob Thompson, Secretary of the Interior.
June 28, 1859. Sir:-In the opinion which I gave you, on the 30th May, 1858, upon the Act of August 31, 1852, concerning Virginia Bounty Lands, I said that a decision by the proper authorities of Virginia, in pursuance of which a warrant was justly and fairly (that is, legally and honestly) issued, was binding and conclusive upon you. I have no reason to change that opinion. On the contrary, a reconsideration of it, after the lapse of a year, has deepened the conviction that I was right.
The three questions, therefore, which you now propound to me, I am compelled to answer as follows:
1. In order to entitle the holder of a warrant to scrip in place of it, it
is not necessary for him to satisfy you that the warrant was issued for military services so rendered." The decision of the proper State authorities is conclusive upon that point, provided the warrant was issued without fraud and according to the forms of law.
2. The discovery, after the date of the warrant, of evidence showing or tending to show that the military services for which it was issued were never rendered, would not authorize you to set aside the sentence of the governor and council. You have no more power to grant a new trial than you have to reverse the judgment of the State authorities on appeal; but if you discover that the Governor of Virginia and the executive council have been imposed upon by perjury or fraud, it might be well to send the case back with an exposure of it; and, if that be done, I can hardly doubt that the responsibility would be there very quickly assumed of cancelling the warrant.
3. It can scarcely be necessary to add, in reply to your third question, that proof from the “ Washington papers" will not overturn the conclusive presumption arising out of the warrant itself. I am, very respectfully, yours, &c.,
Í. S. BLACK. Hon. Jacob Thompson, Secretary of the Interior.
ATTORNEY GENERAL'S OFFICE,
June 28, 1859. Sir :-I have received your letter asking for my opinion upon the claim made, by the heirs of Commodore Barron, for land scrip under the Act of August 31, 1852. It appears that the ancestor of the claimants was duly commissioned as the “ Commodore of the armed vessels of the State," and served as such until the close of the Revolutionary war. Proof of this service was made in 1783. In 1831, the quantity of land to which a brigadier general would be entitled, for the same length of service, was allowed by the governor and executive council of the State. In 1857 the executor of Commodore Barron, being of opinion that his rank should be assimilated to that of a major general in the army, memorialized the governor for such an allowance of land as a major general would have received. The governor, concurring in that opinion, made the allowance prayed for, and thereupon a warrant was issued to the heirs-at-law of James Barron, Sr., on the 4th of November, 1857.
Can you issue scrip on this warrant? I feel no hesitation about answering that question in the negative. The Act of 1852 provides for the case of " unsatisfied and outstanding military land warrants, or parts of warrants, issued or allowed prior to the 1st of March, 1852. This warrant was not outstanding nor unsatisfied, for it did not exist until after the day mentioned; nor was it issued before that time, its date, as above mentioned, being nearly six years later. But the argument seems to turn upon the disjunctive form of expression, “issued or allowed;" and it is contended that, if the claim was allowed before the first of March, 1852, it makes no difference that the warrant was issued afterwards. This I dissent from for several reasons.
1. I think that the word “allowed” is a mere repetition of the same idea, which was expressed by the other word “issued;" that they are