REMOVAL OF INTRUDERS FROM LANDS CEDED BY THE CREEKS. The treaty of the 24th March, 1832, with the Creek Indians, provides that, after the survey ATTORNEY GENERAL'S OFFICE, SIR: In answer to the inquiry contained in your letter of August 19, I have the honor to state that, in my opinion, the President may lawfully direct the marshal of the district, and employ such military force as he may judge necessary and proper, to remove intruders from the lands in Alabama ceded by the Creek Indians to the United States by the treaty of the 24th of March, 1832. The treaty with the Creek Indians provides that a survey shall be made of the lands ceded to the United States; and, after the survey is completed, certain rights of section are reserved to ninety of the principal chiefs and to heads of families. The survey is not yet completed, and, consequently, no sections have been made. The fifth article of the treaty provides that all intruders upon the country thereby ceded shall be removed therefrom in the same manner as intruders may be removed by law from other public land, until the country is surveyed and the selections made." The white men who have entered upon this land are unquestionably intruders within the meaning of this law. The lands belong to the United States; and the chiefs of the Creek nation could not give permission to any white men to settle on them, without the consent of the United States. But the chiefs, it appears, have given to them no such permission, and desire their removal; and the only excuse alleged for their intrusion is the license of individual Indians, in opposition to the wishes of the chiefs. It can scarcely be contended that a permission from such persons can give a color of justification. As the title now stands, any permission from the Indian chiefs, or from individua! Indians, to white men, to settle on the land of the United States, must be utterly nugatory and void; and the men who have entered and taken possession, under pretence of such permission, are intruders on the land of the United States. 66 The question is, Can the United States use the military force to remove them? The language of the act of March 3, 1807, is too plain to be mistaken. It gives to the President, by express words, the power "to employ such military force as he may judge necessary and proper" to remove persons who may intrude upon any lands ceded or secured to the United States by any treaty made with a foreign nation, and by a cession from any State to the United States." The reason for confining the act of Congress to cessions of this description is sufficiently obvious. All the large and unsettled tracts of country which belong to the United States were acquired either by treaty with foreign nations, or by cession from one of the States; and it was only on lands of that description that any evil could arise from intrusion and settlements, sufficiently important to the public to make it advisable to use the summary and forcible remedy authorized by the act of Congress. The land on which these intrusions have been made is certainly embraced both by the words and the spirit and object of the law; for it was ceded to the United States by the State of Georgia, and is a portion of the unsettled country which the act of 1807 was designed to protect. The words of the law being plain, and clearly embracing in its provisions the lands in question, what legal objection can there be to its prompt and faithful execution? Had not Congress the power to pass such a law? It is true that these lands lie in the State of Alabama, and that that State has extended its laws and the jurisdiction of its tribunals over the whole territory included by its limits. But that circumstance cannot render this act of Congress unconstitutional and inoperative in that State; for the act of Congress produces no conflict of jurisdiction or of sovereignty with the State of Alabama. It proposes to defend the possessions of the United States against wrong doers, who, without any pretence of title, and in open violation of the rights of the United States, intrude upon the public property, and appropriate it to their own use. And if there is any conflict, it is only with persons of this descripton, and not with the State of Alabama, or the proper authority of that State. The power of Congress to pass this law has, I believe, long been regarded as a settled point, and the government have acted upon it accordingly. I have now before ine two opinions given in the year 1821, by one of my predecessors in this office; one of the opinions being in relation to the public lands in the State of Illinois, and the other in Mississippi; and in both of these cases, the right of the United States to execute the law is treated as undeniable. And in this very case, the treaty with the Creek Indians pledges the United States. to act upon this law in the removal of intruders; and the Senate, by ratifying the treaty, have shown that, in the judgment of that body, there was no constitutional objection to the exercise of the power. Indeed, it can hardly be supposed by any one that the United States have not the same right that an individual possesses to defend their lawful possessions, by force, against a trespasser. Must they surrender up the possession of the public property whenever lawless violence attempts to seize upon it? Some of the forts and arsenals and light-houses are, I understand, upon lands which have been purchased from individuals, without any cession of jurisdiction from the States in which they lie. It cannot be imagined that the United States are bound to stand idle and see their possessions wrested from them, and then be put to their action of ejectment to regain possession of their forts, arsenals, and light-houses, or bound to resort to a replevin to recover the public arms and accoutrements, or an action of trover to obtain compensation in damages for their loss. Such a proposition would strike every one as utterly untenable. Yet it would be quite as unreasonable to require them to suffer, without resistance, the best bodies of vacant land which they had in different States to be overrun and seized on by lawless intruders, and put the United States to the necessity of resorting to actions of ejectment or other legal proceedings against each separate individual, in order to regain their possessions. The public domain would be of no value, or worse than of no value, if such a doctrine could be maintained. It is clear that a private individual may defend the possession of his property against a wrong-doer who attempts to deprive him of it, and may lawfully use any force necessary for that purpose. There can be no reason why a government holding property should be denied the same right; and the act of March 3, 1807, does no more than provide the means necessary to defend the possession of the public property, and authorize the President to use them. The fact that these intruders are now on the lands, and have been there for some time, cannot alter the question; the United States have never abandoned their possession, and the intruders have never acquired a lawful possession against them; they were mere trespassers from the beginning, and continue so to the present time, and have no better right now than they had at the moment they first entered. The lawful possession is still in the United States, and it may, in my opinion, be defended against such trespassers, according to the directions of the act of 1807, by the removal of the intruders by military force. I am, sir, very respectfully, your obedient servant, To the SECRETARY OF WAR. R. B. TANEY. LOCATION OF LANDS GRANTED TO ARKANSAS. The selection of parcels of land less in quantity than quarter sections, by the Governor of Arkansas Territory, is unauthorized by the acts of Congress touching the grant. "A quarter section" means a parcel of 160 acres which has been set apart and designated by the proper officer as such, according to the act of Congress prescribing the mode of survey. ing and dividing the public lands. ATTORNEY GENERAL'S OFFICE, August 30, 1833. SIR: I have examined the acts of Congress of March 2d, 1831, granting a quantity of land to the Territory of Arkansas for the erection of a public building at the seat of government, and the supplemental act of July 4th, 1832; and also the documents and papers showing the manner in which the land has been located by the governor, and the reasons assigned by him in support of his location. It appears that, in making the location, he has divided three different quarter sections each into two equal parts, and taken the one half of each of them, and excluded the other from his location. In my opinion, the location made by the governor was not authorized by the act of Congress. The words "a quarter section of land” are, I believe, never used in any of the acts of Congress to denote merely the quantity of 160 acres of land, but are always intended to describe a parcel of land, containing 160 acres, which has been set apart and designated by the proper officer of the government as a quarter section, according to the act of Congress prescribing the mode of surveying and dividing the public lands. And when the act of March 2d, 1831, declares that the land granted the Territory of Arkansas shall be selected "in portions not less than one quarter section," it means that the parcel of land specified and laid off as a quarter section shall not be divided and broken by select ing a portion of it. The reason of this restriction appears to me to be sufficiently obvious. It was designed to prevent such a location as would disturb the divisions made by the government, and thereby render the public lands adjacent to the selection of less value, and more difficult to sell, on account of their inconvenient and irregular outlines. For if the construction put upon the law by Governor Pope be the true one, then he might altogether have disregarded the division made by the United States, and given to his selection any shape he thought proper, so as to render of little or no value the fragments of sections left to the United States. I think that neither the words used nor the object and spirit of the law will justify this construction; and that, therefore, the location made by the governor is not a valid one, and a patent cannot be lawfully issued to the purchaser. I am, sir, with the highest respect, your obedient servant, To the PRESIDENT. LAW OF DESCENTS IN MARYLAND. Where an individual entitled to bounty land died intestate, leaving him surviving a widow and several children, and where, after the demise of the widow and children, the widow surviving the children, the heirs of the widow claimed the land-HELD, that the mother was not the heir of the surviving child, except there were none in the paternal line. ATTORNEY GENERAL'S OFFICE, September 5, 1833. SIR: In reply to your letter of to-day, I have the honor to state that it appears, from the papers before me, that Jacob Brice, of Maryland, who was entitled to the bounty land in question, died many years ago, intestate, leaving a widow and three children; that the children all died intestate and without issue, in the life of the widow; and she died about the year 1817, intestate, without leaving issue, she not having married again. The present applicants for the land make claim to it as her heirs-at-law. Upon the facts as set forth in the papers before me, the present applicants do not show themselves entitled to the land. It descended, on the death of Jacob Brice, to his children, and vested by descent in the sur viving child. The mother was not the heir of that child, unless there was no representative to be found in the paternal line. And there is no evidence to show that there were not brothers and sisters of Jacob Brice, or some one of kin to him in the paternal line, who was competent to take, upon the death of the surviving child. The claim of the present applicants cannot, therefore, be allowed. I am, sir, very respectfully, your obedient servant, To the SECRETARY OF WAR. R. B. TANEY. SALES OF ORDNANCE, &c., UNFIT FOR SERVICE. An agreement, sanctioned by the head of the Ordnance Office, for the exchange of old ordnance for gun-skidding, is not warranted by law. Under the act of 3d March, 1825, the President only has the power to cause ordnance, arms, ammunition, &c., unfit for public service, upon proper inspection and survey, to be sold; and to that end, a method of effecting the sale has been prescribed by the Secretary of War, by which the property must be offered first at a public auction. ATTORNEY GENERAL'S OFFICE, SIR: In pursuance of your directions, I have carefully examined the question arising on the agreement made by Lieutenant Symington, and afterwards sanctioned by the head of the Ordnance Office, with Hanson Gassaway, for a quantity of gun skidding, to be delivered at the arsenal at Washington, to be paid for in old castings, at $20 per ton. The facts in the case are fully set forth in the report of Messrs. Van Ness and Kendall, and in the statement presented by Colonel Bomford; and it is, therefore, unnecessary to recapitulate them here. It is sufficient to say that the contract to pay in old iron was executed by breaking up and delivering sundry cannon reported to be unfit for service. And the question is, whether the head of the Ordnance Bureau was lawfully authorized to cause any cannon belonging to the United States, which, upon his own inspection or the report of Lieutenant Symington, he might deem unfit for service, to be broken up or defaced, and delivered to Mr. Gassaway as old iron, in execution of his contract. The transaction was in its nature a barter of the guns for the skidding. There is no power under any law of Congress to make contracts of barter. but all articles directed to be purchased are intended to be paid for in money; and if the contract in question can be legally justified, it must be on the ground that it was a sale of the iron to Mr. Gassaway, at the price specified in the contract; and, in order to support it as a sale, it must appear that the head of the Ordnance Department had lawful authority to break up and sell any cannon which he supposed to be unfit for service, and sell it at private sale for such sum as he thought it was worth. The head of the Ordnance Bureau has, I think, been mistaken in supposing he possessed such a power. And the duty of inspecting and proving pieces of ordnance, and of discarding from service the old-pattern guns, can by no just rule of interpretation be held to give the power of breaking up and selling them as old iron; and if the question depended on the law of 1815 alone, I should think that it would not warrant a contract like the one before me. But, by the act of Congress of March 3d, 1825, (vol. 7, p. 415,) the President is authorized to cause to be sold any ordnance, arms, ammunition, or other military stores, which, upon proper inspection and survey, shall ap pear to be unfit for the public service, whenever, in his opinion, the sale will be advantageous to the public service. The 2d section of this law directs that the inspection or survey shall be made by the inspector general, or such other officer or officers as the Secretary of War may appoint for that purpose; and that the sale shall be made under such rules and regu. lations as may be prescribed by the Secretary of War. And according to the provisions of this law, rules and regulations were framed by the War Department directing the manner in which this act was to be carried into execution, and prescribing, among other rules, that the public property directed to be sold should, in all cases, be first offered at public sale. After the passage of this law, and the regulations made under it, I think it evident that no sale of old ordnance, or iron, or stores of any description, can lawfully be made without the order of the President, upon proper inspection and condemnation, as therein directed, and according to the regulations of the War Department on this subject above referred to. The sale in question was in no respect pursuant to these provisions, and was not, therefore, in my opinion, within the scope of the powers of the head of the Ordnance Office. And although the mo tives assigned by the head of the Ordnance Bureau for mutilating the cannon before it goes into the hands of private individuals, strikes me |