Page:United States Statutes at Large Volume 5.djvu/145

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TWENTY-FOURTH CONGRESS. Sess.1. Ch. 352. 1836. I09 Sec. 2. And be zt further enacted, That there shall be appointed A{>1‘i¤¢iP¤l _ in sand office, by the Presxdent, by and with the adqicc and consent of Ugnguggg the SGl1Z1C€,·t\VO subordmzuc officers, one of whom shall be called Prin- on mfgvaw land mpal Clerk of the Public Lands, and the other Principal Clerk on Pri- <>¥¤?¤1¤»¢<> b¤ vatc Lund Clmms, who shall perform such duties as may be assigned “Pp°‘""’d‘ to them by the Ccmmxsmoncr of the General Land Officc; and in case duais, who acknowledge nu connection with, and owe no allegiance to any goéernmeut whatever, the country becomes the property of the discovcrers in common, su far as they can usc it. Ibid. If the discovery be made and possession taken under the nuthoniay of an existing government, which is acknowledged by the emigrants, the discovery is made for the whole nation; the country becomes a. part of xhe nuucn ; and lhc vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains. Ibid. According to the mheori of the British constitution, all vacant lands are vested in the crown as represcming the muion ; and t c exclusive power to grant them is udmiued to reside in the crown as a brunch of the royal prerogative. Ibid. Congress, in order to guard against imposition, declared by the law of 1804 that all rants of land made by the Spanish authorities in the territory west of the Perduio, after the treaty of Ildefonso, should g gall and v§>id, excepting those to actual settlers, acquired before December 20, 1803. Garcia v. Lec, exers, 51 . The controversy relative to the country lying between the Mississippi and the Pcrdido rivers, and the validity of the grants mudc by Spain in the disputed territory after the cession of Louisiana to the United Sums, were carefully examined in the case of Foster Gr. Elam v. Neilson. The Supreme Court in that case decided that the question of boundary bctwecn the United States and Spain was a question for the political departments of theégovernment: that the legislative and executive branches having decided the question, the courts of the nited States are bound to regard the boundary determined by them as the true one; that grams made by the Spanish authorities of lands, which, accordin to this boundary line, balonied no the United States, gave no title to the grantees in opposition to viose claiming under the Unite States, unless the Spanish grams were protected by the subsequent arrangements made between the two governments ; and that no such arrangements were to be found in the treaty of 1819, by which Spain ceded the Flondas to the United States, according to the fair import of ics.wux·ds, and its true construction. Ibid. In the case of Foster & Elam ·v. Neilson. the Supreme Court said that the Florida treaty of 1819 declares that all grants made before the 24th of Januar 1818, by the Spanish authorities, "shall be ratified and contirmcd to the persons in possession of the langs, to the same extent that Lhe same grants would be valid, if the territories had remained under the dominion of his catholic majesr :" and in deciding the case of Fosncr Sz, Elnm, the court held, that even if this stipulation applied to lands in the territory in question, yet the words uscd did not import a present confirmation by virtue of the treaty itself, but that they were words of contract: " that the ratification and confirmation which were promised must be the act of the Legislature; and until sucbshall be passed, the court is not smirked to disregard the existing laws on the subject," Afterwards, in the case of the United States v. Perchcmau, 7 Peters, 86, in revicwing the words of the eighth article of the treaty, the court, for the reasons there assigned, came to u diH`eren: conclusion, and held mat the words were words of present eonfirmmion, by the areary, where the land had been rightfully grunted bezfbrc rho cession, and that it did not need the aid of an act of Congress no mcify and confirm the gram. This language was, however. applied hy the court, and was intended to apply, to grants made in a territory which belonged to Spain at the time of the grant. The case then befbre the court was one of that description. It was in relation to a rum of land in Florida, which unquestionably belonged to Spain at the time the grunt was made. and wiere the Spanish aurhorities had an undoubted rivht to grunt, until the treaty of cession in 1819. It is of such grams that the 'court speak, when they efeclare them to be confirmed and protected by the true construction of the treaty, and that they do 1101 need the aid of an act of Congress to ratify and confirm the zialc of the purchaser. The court do nor. apply this principle no grants made within the térrimrv of Louisiana. The case of Foster & Elnm v. Neilson must, in all other respects, be considered as ufHrmed by the case of Pcrchemun; as it underwent a careful examination in that case, and as none of its principles were questioned except that referred t0. Ibid. _ _ '1`hc power over the public lands is vested in Congress by the constitution without limxmurm, and has been considered as the foundation on which the territorial government rests. The United States v. Gratiot ct al., 14 Peters, 529. The words " dispose of" the public lands, used in the constitution of the United States, cannot, under the decisions of the Supreme Court, receive any other construction than that Congress has the pcwey in its dnscrs-ation to authorize the kes ing of the lead-mines on the public lands in xhe territories of the United States. There can be no appregensions of cncroaching on State rights by the creation of a numerous tenantry within thé borders ofa State, from such reu$0ns. Ibid. _ _ _ _ The authority as given to the President of the United States to lease the lend-mma , IB hmjrgq to a term nor exceeding five years. This limitation, however, is not to be construed to be q prohxbmon to renew the leases Hom time to time, if he thinks proper so to do. The authority as limnteci to n short period, so as not to interfere with the power of Congress to make other dispositions of the mmcs, should they think the snmc necessary. Ibid. _ _ _ _ The law of 1807. nuvhonzing the leasing of the la:xd·m1nes, wzgs passed before [llmms wg; crgamzed as ll Stare. She cannot new complain of any disposition or regulnuon ofjhp lead-muyes prevjnusly made by Congress. She-, secondly, cannot claim a right to the public lands wurhm her hmusl Ibul. _ Under the acts of 1805, chap. 26, 1806. chap. 39, 1807, chag. 36, ix was nccessgry m filo the cwdenco of xm incomplete claim under French or Spanish authority, winch born; dats ants-mor to the lst of October 1300, us well as those which were dfrad subsequent to that day ; und m cases of neglect, the bar provxded. in the act xx lied to both classes. bid. _ A title re;Yingo11 u permit ro sczcle and warrant of survey, dated before pbe ls; of October 1800,_with0ut settlement or survey of any kind having been made, was an xncoxngéetc mls withm that act. I61d.