(Respecting Military Bounty Land Claims.)

III. Some of the fundamental Rules and Regulations established by Instructions, Decisions, &c., respecting Military Bounty Land Claims, viz :

(Of title to, and location of Bounty Land Warrants.)

1. A minor, who brings himself within the other requisites, (that entitle a soldier of the war to a bounty land warrant,) is entitled in like manner with persons of full age. General, 1st August, 1815.

Revolution or the late
Opinion of Attorney

2. Under the act of the 16th of April, 1816, a soldier enlisting to serve during the war, is entitled to bounty land, if he was promoted to the rank of a commissioned officer during his service, though he resigned before the conclusion of the war. Opinion Attorney General, 29th July, 1819.

3. Land warrants are not chattels, but inchoate rights or titles to fee simple in lands, and descend to heirs as real estate. Opinion Attorney General, 8th October, 1819, and 29th March, 1832.

4. Land warrants may be located in separate parcels, and separate patents issued. Opinion Attorney General, 19th April, 1826.

5. Bounty land warrants to Canadian volunteers under the act of the 5th of March, 1816, are not assignable. Opinion Attorney General, 26th December, 1819.

6. Canadian volunteers or warrantees only shall locate their land warrants. Secretary's Instructions, 22d February, 1820.

7. Canadian volunteers may act by attorney in locating their land warrants. Opinion Attorney General, 29th December, 1820.

(Of Bounty Land Scrip.)

on

8. Scrip should issue to parties nominatim on warrant issued to "A. B. and the other heirs of C. D." due proof of heirship: and when issued in terms of warrant, must be assigned by all the heirs by name, and accompanied with proof of identity, heirship, and assignment. Opinion Attorney General, 1st October,

1830.

9. Scrip being considered as realty, must not be issued to executors or administrators. Opinion Attorney General, 1st October, 1830.

10. Scrip is, by act of Congress, made a sort of representative of money. Opinion Attorney General, 9th February, 1836.

11. By the act of May 30th, 1830, scrip for Virginia military land warrants should be issued in the name of the party originally entitled, his heirs, or his devisees. Opinion Attorney General, 23d April, 1836.

12. The department may suspend issuing the scrip when a warrant appears to have issued for more land than is due. Opinion Attorney General, 28th April, 1836.

13. The 1st section of the act of the 30th May, 1830, authorizing the issue of scrip, is still in force. Opinion Attorney General, 1st June, 1837.

(Of Assignments of Warrants or Scrip.)

14. The assignee of a military land warrant may, upon the authority of his assignment, make one or more entries in his own name, and take out grants therefor to himself. Also one of several heirs can assign his individual right in an unlocated warrant, and the assignee may make an entry, and receive a patent in his own name for such portion, and will hold the interest in severalty. Opinion Attorney General, 19th April, 1826.

15. If a receipt acknowledge part payment only for a Virginia military warrant, the assignment will not be sufficient title to a patent, the contract being incomplete. Opinion Attorney General, 31st August, 1827. 16. The Commissioner of the General Land Office is bound to issue the patent for a bounty land warrant to the original holder, his heirs, or assigns, and must therefore have satisfactory evidence in cases of assignment, &c. Opinion Attorney General, 13th October, 1829.

17. Although, under the act of the 30th of May, 1830, an assignment of a Virginia military warrant, or of the scrip issued thereon, cannot pass a legal title, yet it may convey therein an equitable interest. Opinion Attorney General, 23d April, 1836.

18. A power of attorney authorizing an agent to procure the scrip, and retain a share as compensation, is lawful, and cannot be revoked after rights are acquired under it, without good cause. When there is no dispute in such case about the contract, the scrip may be delivered to the equitable assignee; but when the

original party is represented only by his assignee, the Department may look into the contract or claim, for the purpose of ascertaining that it is characterized by such fairness as to render the delivery a discreet act, but not for the purpose of adjudication-for the scrip must be delivered to the original party where he contends for it against his assignee; but, if circumstances justify, it may be suspended until the claimant can apply for an injunction whereby it may be delivered as directed by the court. Opinion of Attorney General, 23d April, 1836.

(Respecting Pre-emption Claims.)

IV. Some of the fundamental Rules and Regulations established by Instructions, Decisions, &c., respecting Pre-emption Claims, viz:

(Various kinds, and accidents, of pre-emption rights.)

1. Registers and receivers are the exclusive judges of the facts offered to establish pre-emption rights to land in their respective districts, according to the acts of the 5th February, 1813, and 29th May, 1830. Opinion Attorney General, 21st April, 1836.

2. The rights of pre-emption given to settlers on public land by the act of the 12th April, 1814, though such lands be within the range of country designated for military bounties, are good and valid to those who settled prior to the survey, but not to settlers after the survey, by which those lands designated as bounty lands become appropriated lands, and not longer vacant. Õpinion, 28th August, 1819.

3. Pre-emptions granted for seats of justice in counties, parishes, &c., are to be restricted to the quarter section only on which the authorities of the State or territory shall have fixed or established, prior to the public sales of the adjacent public lands. Commissioner's instructions, 7th June, 1824; 18th March, 1834; and 11th October, 1837.

4. Under the pre-emption privileges conferred by the acts of April 12th, 1814, and May 29th, 1830, entry cannot be made for more than a quarter section of land in a body (at $1 25 per acre;) but if the improvements and cultivation be on adjoining quarter sections, these contiguous quarter sections may be so divided as to embrace both improvements in the entry, not to exceed a quarter section of one hundred and sixty acres. Commissioner's instructions, 30th May, 1830, and 10th June, 1830.

5. Where a first settler rents his improvement to another, the landlord, and not the tenant, is entitled to preemption. Opinion Attorney General, 23d August, 1830.

6. Proof of cultivation and possession must be produced to the register and receiver, to secure the right to enter a pre-emption claim, before the sale of the contiguous land commences, or it is forfeited; and likewise, in cases under special relief acts which extend the time for the entry of certain pre-emptions, the right to enter is forfeited by a failure to make proof and entry during the period designated. Opinion Attorney General, 23d August, 1830; and Commissioner's instructions, 23d May, 1831.

7. Relinquished and revested lands are not subject to pre-emption, under the act of the 29th May, 1830. Secretary's instructions, 26th August, 1830.

8. The terms of the law are, "settler or occupant:" any act of an individual, by which he appropriates the land to his own use, is occupation; and cultivation of any kind, constitutes such occupancy. Commissioner's instructions, 19th March, 1831.

9. A corporation, with the proper evidence thereof, is entitled to pre-emption, under the act of the 5th of April, 1832. Commissioner's instructions, 29th May, 1833.

10. All claims or reservations under Indian treaties are to be fully satisfied before the ceded lands can be subject to pre-emption rights. Opinion Attorney General, 11th May, 1836.

11. Pre-emption accrues to aliens under the acts of 29th May, 1830, and 19th June, 1834, and especially where the local or State laws authorize them to hold and convey real estate. Opinion Attorney General, 18th April, 1836.

12. A settler or occupant is one who actually and personally resides on the public land, or, one who personally occupies and uses it; there can be no such thing as a settler or occupant by proxy. Opinion Attorney General, 21st June, 1836. (This is inconsistent with the axiom quoted in the following opinion, dated the 27th April, 1837.)

13. Settlers and occupants are those who personally cultivate and reside on the public land, or, who personally cultivate, use and manage a portion of the public lands, or who do the same by the application of the personal labor of their hired men, domestic servants, family, or slaves, [not being considered as "proxies"] ; and they are, for the purposes of the pre-emption laws, entitled to the benefit thereof; "qui facit per alia, facit per se." Opinion Attorney General, 27th April, 1837.

14. The failure to pay for the original pre-emption before a public sale of the lands in which it is situated, forfeits the right. Opinion Attorney General, 27th April, 1837.

(Of Pre-emption Floats.)

15. Pre-emption floats accrue in all cases where two separate improvements exist on the same quarter section or less sub-division, and only in such cases. Secretary's instructions, 13th February, 1835.

16. Pre-emption floats mislaid or located on lands subject to another right of preference, may be raised and properly located at any time prior to the public sale of the lands including the tract on which the original right accrued. Opinion Attorney General, 24th June, 1836.

17. A pre-emptor may float a tract returned as a regular half-quarter section, whether containing a few acres more or less than eighty acres. Opinion Attorney General, 27th April, 1837.

18. A pre-emption floating right cannot accrue where the cultivation was made jointly by the two first actual settlers whose interests were joint and undivided; but if their interests were separate and distinct, a floating right may accrue. Commissioner's instructions, 9th June, 1837.

19. When two tracts sought to be floated upon by joint pre-emptors do not contain more than one hundred and sixty acres, the parties may enter them. Commissioner's instructions, 13th June, 1837, and opinion Attorney General, 15th June, 1837.-(See Birchard's land laws and instructions, part II, p. 131.) 20. Pre-emption floats are not to be located on ground formed by the gradual filling up of a river; such ground does not appear in the official PLOT, which is to govern the land office. Commissioner's instructions, 15th July, 1835, and 11th October, 1837.

(Assignments of Pre-emption Rights.)

21. "The 11th article of the circular letter from this office, dated 22d July, 1834, in the words following, viz: 'transfers of pre-emption rights prior to the issuing of patents will not be recognized,' is rescinded, in conformity with instructions from the Secretary of the Treasury of this date," &c. Assignments of preemption rights granted under the act of the 19th June, 1834, will henceforward be recognized, and patents will be issued accordingly to assignees, &c.: the designation of the tract must invariably be given in writing, without abbreviation: if the assignment is not acknowledged before either the register or receiver, it should be attested by two witnesses, and acknowledged before a notary, or a justice of the peace. Commissioner's instructions, 9th March, 1835.

22. The assignee of a pre-emption certificate of purchase takes it subject to the equities subsisting between the settler and the United States: the rule of caveat emptor is peculiarly applicable to the purchaser of a pre-emption certificate; and until a patent issues, the legal title is in the United States; and when the equities are equal, the legal title of the United States will prevail. Opinion Attorney General, 18th April, 1836.—(Birchard's compilation land laws, part II, p. 83.)

(Respecting the Sales of Public Lands.)

V. Some of the fundamental Rules and Regulations established by Instructions, Decisions, &c., respecting the Sales of Public Lands, viz:

(Of Intruders on Public Lands.)

1. The act of the 3d March, 1807, "to prevent settlements being made on lands ceded to the United States, until authorized by law," authorizes the President to remove all those who may settle on public lands after the passage of said act, or who, being settled prior thereto, shall not, before the 1st January, 1808, have obtained permission to remain, in the manner prescribed by the said act. Secretary's instructions, 28th March, 1807.

2. Settlers on public lands without title or authority, subsequent to the act of 3d March, 1807, may be removed as intruders, by adequate force, without notice. Opinion Attorney General, 4th April, 1815. 3. According to the act of the 3d March, 1807, persons convicted of destroying valuable timber, or working lead or other mines on public lands, are subject to be punished by fine and imprisonment. Opinion Attorney General, 27th May, 1821, and Commissioner's instructions, 13th July, 1821.

(Entries and Locations for Purchase of Lands.)

4. The 10th section of the act of the 10th May, 1800, provides that when registers of land offices shall wish to purchase lands, (79) they shall make entry thereof in books to be kept by the Surveyor General for (79) This privilege, granted by the 10th section of the act of the 10th May, 1800, to registers of land offices to purchase public lands, is one of the most palpable contradictions or contraventions of that policy of our legislation which restricts and interdicts officers of the government generally from availing themselves of the facilities afforded by their official position (analogous to gambling with loaded

that purpose, who is directed to proceed in the same manner with respect to such "applications" as the registers do in respect to "applications" made by other persons. Secretary's instructions, 8th Oct. 1800. 5. Lands set apart for a town, [as likewise all appropriated lands,] are not subject to entry. Opinion of Attorney General, 21st February, 1823.

6. Tracts containing lead mines or salt springs are not subject to entry to satisfy private land claims, pre-emption, &c., except by judicial decision, or special act of Congress. Opinion Attorney General, 4th May, 1828.

6. (2d.) Lands producing navy timber, such as "live oak," &c., are reserved to the United States. Commissioner's instructions, 8th August, 1831.

7. Locations of certificates of sales must be made so as to preserve the rectangular system of public surveys; but if made before survey they are void. Opinion Attorney General, 10th July, 1816, and 19th March, 1820.

8. Until a patent shall issue for land entered under the credit system, the title is with the United States, as the land is unsold until full payment is made, [as it is with the cash system]; and it is not liable to be taxed by the State authorities until five years thereafter. Opinion Attorney General, 4th Nov., 1820.

9. The act of the 8th May, 1820, authorized the entry of vacant, rural, or unimproved lands only, and did not contemplate the entry of town lots. Opinion Attorney General, 21st February, 1823.

10. Authority to locate a "quarter section" does not authorize the substitution of other parcels of land equivalent in value. Opinion Attorney General, 15th May, 1833.

11. Locations (or entries) cannot disturb the legal lines of sub-divisions, fractional or otherwise. Opinion Attorney General, 8th August, 1836.

12. When the purchase money is paid direct to the Treasurer, the specific tract of land must be stated, just as if applied for at the register's office of the land district in which it lies, and on the same principle. Opinion Attorney General, 24th October, 1836.

13. The Treasurer (80) cannot refuse to receive payment for a specific tract of land, unless he has official evidence that it is not subject to sale. Opinion Attorney General, 14th July, 1837.

14. A register and receiver have no right to withhold lands from entry until a [prior] party perfects his "application;" and when they have done so, the General Land Office can correct the error before a patent Opinion Attorney General, 5th June, 1837.

issues.

15. It is the duty of the Executive to secure to all persons a fair and equal opportunity of entering and purchasing the public lands. Opinion Attorney General, 14th July, 1837.

16. Lands temporarily withheld from private sale should not be allowed to be entered until suitable notice of removal of the suspension, except in such cases where the application to enter was anterior to the suspension. Opinion Attorney General, 14th July, 1837.

17. Lands offered at public sale, and withheld for a time after its close, cannot be entered without notice [thirty days] of the removal of the suspension, and of their liability to be entered at a future day. Opinion Attorney General, 21st July, 1837.

18. Scrip purporting to be good at any land office is receivable for any lands subject to private entry at the minimum price. Commissioner's instructions, 4th January, 1838.

dice) to become the favored competitors of private citizens, in the trades, callings, or speculations, connected in any manner with their official duties. The 8th sec. of the act of 2d September, 1789, establishing the Treasury Department, says, "no person appointed to any office instituted by this act, shall, directly or indirectly, be concerned or interested in carrying on the business of trade or commerce; or be owner, in whole or in part, of any sea vessel; or purchase, by himself, or another in trust for him, any public lands or other public property; or be concerned in the purchase or disposal of any public securities of any State, or of the United States; or take or apply to his own use any emolument or gain for negotiating or transacting any business in the said Department, other than what shall be allowed by law," &c. These restrictions, and the penalties denounced for their violation, have, with slight modifications, and some extensions of them, been continued by sundry supplementary acts, against the policy of which the privilege above noted, is a most extraordinary infraction, done no doubt by inadvertence. (See the note (81) on register's scrip or forfeited land stock.)

(80) The practice authorized under the credit system, of making payment of the subsequent instalments to the Treasurer of the United States, at the option of the purchaser for his convenience alone, after having made the purchase and the FIRST payment at the district land office, was the ground on which it was afterwards assumed that purchasers under the cash system should be entitled to make payment to the Treasurer, as here decided by the Attorney General. But this erroneous assumption, by no means analogous to the instalments under the credit system, was soon found to be impracticable, without subverting the fundamental requirements of the law, of making application, entry, and payment, at the respective land offices, and therefore was as soon abandoned,

(Of Assignments of Certificates of Purchase.)

19. It is always desirable under the cash system, as was practised under the credit system, that an assignment of a certificate of purchase should be endorsed on the back of the certificate; but if it be made on a separate paper, it must describe the land purchased, and the quantity assigned, and should be attached to the certificate in a permanent or secure manner by wafers or sealing wax; and in all cases the assignment must be acknowledged before a justice of the peace or a notary, or before the register of the land office of the district, and certified by him. Commissioner's instructions, 5th May, 1821.

20. Certificate of purchase of public lands may be transferred or assigned by the original purchaser, of which assignment proof must be made to entitle the assignee to a patent; and the assignment may be made by the original purchaser on the back of the certificate, and witnessed by the register; but, in all other modes of assignment of certificates of purchase, the party claiming it must deposite with the register the evidence of his title, which must be in conformity to the law of the State or territory in which the land lies, to entitle him to a patent; otherwise the issuing of the patent is suspended. Commissioner's instructions, 15th October, 1829. (Of Cancelled and Forfeited Sales.)

21. Purchasers of public lands, if evicted by virtue of superior titles, are entitled to a return of the purchase money, with interest. Opinion Attorney General, 17th January, 1821.

22. Erroneous entries and sales of lands at private sale to actual purchasers are to be reported to the Secretary of the Treasury, who, on being satisfied with the evidence, may direct and authorize the withdrawal of the entry, and that the money be applied to their credit in the purchase of other lands. Commissioner's instructions, 1st January, 1822, and opinion of Attorney General, 2d June, 1830.

23. A “register's scrip," (81) in any case where land entered by a register is forfeited, is to be issued by the register, and the Surveyor General is to certify that it is correctly done; but the Surveyor General is not authorized to issue the register's scrip. Commissioner's instructions, 7th October, 1830.

(Respecting the Issuing of Patents.)

VI. Some of the fundamental Rules and Regulations established by Instructions, Decisions, &c., respecting the Issuing, the Suspension, and the Rescinding of Patents, viz :

1. Patents for military bounty lands [as of all others] are required by the act of the 1st March, 1800, to express the range, township, quarter township or fraction, and the number of the lot located, without any one of which requisitions of the law no patent can issue, as no form of description varying from that prescribed by the law will pass the title of the United States. Opinion of the Attorney General, 15th December,

1819.

2. The issue of a patent is to be suspended in a case of doubt, such issue not being so purely a ministerial act as to follow a certificate of purchase as a matter of course. The President is bound to see the laws properly executed, and is not to be instrumental in a conscious breach of them, by consummating the error of inferior officers. Opinion Attorney General, 10th October, 1825.

3. No patent should issue for land inadvertently sold without legal authority, nor for lands excepted from sale by act of Congress, as such sales are void. Opinion Attorney General, 22d October, 1828.

4. When legal authority applies to part only of a tract of land sold, the purchaser may avoid the whole, or receive a patent for the part legally sold. Opinion Attorney General, 22d October, 1828.

5. When a title to land is inchoate, a patent must issue in pursuance of the confirmatory law. Opinion Attorney General, 16th June, 1829.

6. The Treasury Department, though it has no power to reverse a decision of a register as to the validity of

(81) This scrip or certificate, otherwise called "forfeited land stock," (see form No. 7, in "Addenda," at the end of this chapter,) when issued by a register in favor of himself, (or a former register,) authorizing him to enter at private sale, in the same district, the quantity of land equivalent to the payment he may have made for the land he had entered or purchased, and forfeited for incomplete payment under the credit system, it is perceived, must be transmitted by him to the Surveyor General to obtain his certificate (to be forwarded to the General Land Office as a voucher) that it is correctly done. This issue of "forfeited land stock," by a register to himself, (as well as to others who may have forfeited their purchase under the old credit system,) is a further feature of the contravention of the established policy of our legislation, to prohibit officers of the government from interfering with citizens at large in the purchase of public property, or government securities, &c., adverted to in a former note. A "register's scrip" may be defined as not only the "forfeited land stock" which he issues in favor of himself or a former register, but as the correlative or convertible term with all "forfeited land stock," inasmuch as all forfeited land stock is issued by registers of land offices, in the districts where the former purchases were forfeited. Another feature in this business, perhaps more obnoxious to the principle of non-interference of public officers in matters of this kind, is, that registers and receivers may, at public sales, bid against a citizen, and purchase public lands of themselves, in the same manner that citizens may, and that, without reporting the proceedings to the Surveyor General for his supervision and certificate of approval; only accounting for these purchases in the same manner as for those of citizens generally-the transaction being at a publie sale, is taken on trust to be, in every way, what it should be!!