CHAPTER XII.

COMMISSIONER OF THE GENERAL LAND OFFICE.

THE ORIGIN, FUNCTIONS, AND OPERATIONS, OF THE GENERAL LAND OFFICE.

Summary of the Laws relating thereto, and to the Acquisition and Disposition of Public Domain.

In order to convey, at the very commencement of this chapter, any thing like an adequate conception of the general scope of its subject, it is not only necessary to make copious extracts from the fundamental laws establishing and organizing the General Land Office, in 1812 and 1836, but to make a proper discrimination between those laws, and the vast number of acts passed from time to time, before and since, in relation to the acquisition and disposition of the public domain. Before making the extracts from the former, which constitute the great machinery essential to all the operations relating to the disposition of the publie domain, it will be beneficial, in forming a general conception of the subject of those operations, to give the purport of the latter class of laws, under a few descriptive heads, which have been arranged in the following order, in "Burche's index of the Laws," viz:

1. "Acts, charters, treaties, conventions, &c., relative to the right of soil the acquisition of lands-the right of Indians to dispose thereof, and make reservations of lands.

2. Acts making general provisions for the survey, examination, and sale, of public lands.

3. Acts for the extension of credit, and affording other relief, to puchasers.

4. Acts relating to lands forfeited to the United States, for non-payment.

5. Acts relative to salt springs, and to lands reserved for the use thereof.

7. Acts relating to reservations and grants for schools and seminaries of learning.

8. Acts making reservations and grants of land for seats of territorial government, and county towns.

9. Acts relating to the laying out of towns, and the selling of town lots.

10. Acts making grants of certain per cent. of nett proceeds, &c., for purposes of internal improvement.

11. Acts relative to the purchase and sale of lands by the United States, in old States.

12. Acts relating to U. S. military bounty lands-on account of services in the revolutionary war.

13. Acts relating to Virginia military bounty lands-on account of services in the revolutionary war. 14. Acts making grants to British deserters—in the revolutionary war.

15. Acts making grants to British refugees from Canada and Nova Sctia-in the revolutionary war.

16. Acts making grants to Canadian volunteers-during the late war with Great Britain.

17. Acts relating to military bounty lands-on account of services in the late war with Great Britain.

18. Acts relating to British proclamation and statements of sundry large private claims.

19 to 26. Acts relating to private claims generally, in Ohio, in Indiana, in Illinois, in Mississippi, in Ala

barna, in Louisiana, in Missouri, in Arkansas, in Tennessee, in Michigan, in Florida, &c.

27. Acts granting the right of pre-emption in the purchase of lands.

28. Acts granting permission to change entries of land erroneously made.

29. Acts making grants to, or other provisions in favor of, individuals and corporations, by naine."

In making a general reference to the numerous and diversified acts relative to the acquisition, the survey, and the disposition, of the public domain, under the above general heads, it seems proper here to advert to the opinions of Attorneys General upon the identity of character and construction of these laws, as expressed on several occasions to Secretaries of the Treasury, and Commissioners of the General Land Office; of which that given by Mr. Attorney General WIRT, in his letter of the 31st December, 1826, may be taken as a fair expression of them all. Upon that occasion Mr. Wirt gave his opinion to this effect-That "the laws upon the subject of public lands are all in pari materia, and are all to be construed together; that no particular law should be construed as 'an insulated act, upon its own letter,' but as having relation to the general system (except private laws, which are in the nature of contracts)-and that when the provisions of different acts in force, directly conflict with, or contravene each other, their operation should rather be suspended for an explanatory act of Congress, than hazard the responsibility of executing one in preference to another conflicting provision". This is a dilemma not of unfrequent occurrence in other departments besides that of the land laws; and is sometimes gotten over by considering the provision of the later date as having repealed the preceding one-an alternative that is liable to be worse than the suspension thereof to await the relief of a declaratory act.

But the difficulty encountered in construing and executing the complicated system of land laws, whether considered insulatedly, or in pari materia, including the charters, treaties of cession, decisions of the Supreme Court, &c., may in some degree be inferred from the facts contained in the following tabular statement, derived from Birchard's compilation of the land laws, opinions of Attorneys General, and instructions of the Treasury Department and Commissioner of the Land Office in execution of those laws," prepared and published by order of the Senate, reaching down to the 12th of November, 1837, only; since which time the laws and opinions, &c., have increased in a somewhat geometrical progression, enhancing these aggregates to an enormous degree, exceeding that of nearly all the other departments of the government united, excepting that of the customs, which in some respects may equal, or even exceed, this ; viz:

"The acts and resolutions of Congress relating to the PUBLIC LANDS, amount, in large octavo, Congress document size, to pages,

774

'The charters, treaties of cessions, and acts relating to the TITLE of the public lands, amount to pages, 796 The decisions of the Supreme Court, and documents on PRIVATE LAND CLAIMS, including Florida claimsamount to pages, 593

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The opinions of Attorneys General, on public land QUESTIONS (173 in number), amount to pages, 218 The opinions of the Solicitor of the General Land Office (abolished by the act of 12th June, 1844, and the duties transferred to the Recorder) amount to pages,

750

"The miscellaneous instructions, CIRCULARS, &c., from the Commissioner of the General Land Office, to REGISTERS and RECEIVERS,

319

The special instructions on PRE-EMPTION cases, from the Commissioner of the General Land
Office, to REGISTERS and RECEIVERS,

115

787

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The special instructions on PRIVATE LAND CLAIMS, from the Commissioner of the General
Land Office, to REGISTERS and RECEIVERS,

The instructions on SURVEYS, general and special, from the Commissioner of the General
Land Office, to SURVEYORS GENERAL,

238

The following extract comprises nearly the whole of the act of the 25th of April, 1812, for "the establishment of the General Land Office in the Department of the Treasury." Omitting the enacting clauses, and the 12th, and part of the 11th sections, that act says:

1. "There shall be established in the Department of the Treasury, an office, to be denominated the Gene'ral Land Office; the chief officer of which shall be called the Commissioner of the General Land Office, whose 'duty it shall be, under the direction of the head of the department, to superintend, execute, and perform, all 'such acts and things, touching or respecting the public lands of the United States, as have heretofore been directed by law to be done or performed in the office of the Secretary of State, of the Secretary and Register of the Treasury, and of the Secretary of War, or which shall hereafter by law be assigned to the said office.

2. "There shall be in the said office an inferior officer, to be appointed by the said principal officer, to be ' employed therein as he shall deem proper, and to be called the chief clerk of the General Land Office, who, in all cases, when the said principal office shall become vacant, during such vacancy, shall have the charge and 'custody of the seal, and of all records, books, and papers, belonging to the said office.

3. The said principal officer, and every other person to be appointed and employed in the said office, shall, before he enters on the duties of his office or appointment, take an oath or affirmation, truly and faith'fully to execute the trust committed to him.

4. "The said commissioner shall cause a seal of office to be made and provided for the said office, with such device as the President of the United States shall approve; and copies of any records, books, or papers, 'belonging to the said office, under the signature of the said commissioner, or, when the office shall be vacant, ' under the signature of the chief clerk, and the said seal, shall be competent evidence in all cases in which the original records, books, or papers, could be evidence.

5. "The said commissioner shall, forthwith after his appointment, be entitled to the custody, and take charge of the said seal, and also of all records, books, and papers, remaining in the offices of the Secretary of 'State, of the Secretary and the Register of the Treasury, and of the Secretary of War, touching or concerning the public lands of the United States; and the said records, books, and papers, shall become, and be deemed, 'the records, books, and papers, of the said office.

6. "The said commissioner shall, when required by the President of the United States, or either House of 'Congress, make a plot of any land surveyed under the authority of the United States, and give such information respecting the public lands, and concerning the business of his office, as shall be directed.

7. In all cases in which land has heretofore [been], or shall hereafter be, given by the United States for 'military services, warrants shall be granted to the parties entitled to such land by the Secretary of War; and 'such warrants shall be recorded in the said land office, in books to be kept for the purpose; and shall be located 'as is or may be provided by law; and patents shall afterwards be issued accordingly.

8. "All patents issuing from the said office shall be issued in the name of the United States, and under the seal of the said office, and be signed by the President of the United States, and countersigned by the commis'sioner of the said office, and shall be recorded in the said office, in books to be kept for the purpose.

9. "All returns relative to the public lands, heretofore directed to be made to the Secretary of the Treasury, 'shall hereafter be made to the said commissioner, who shall have power to audit and settle all public accounts ' relative to public lands: Provided, That it shall be the duty of the said commissioner, upon the settlement of 'any such account, to certify the balance, and transmit the account, with the vouchers and certificate, to the Comptroller of the Treasury, for his examination and decision thereon.

10. "No person appointed to an office instituted by this act, or employed in any such office, shall, directly 'or indirectly, be concerned in the purchase of any right, title, or interest, in any public land, either in his own right, or in trust for any other person, or in the name or right of any other person in trust for himself, or shall 'take or receive any fee or emolument for negotiating or transacting the business of the office. And any person 'offending in the premises against the prohibitions of this act, shall forfeit and pay one hundred dollars; and, upon 'conviction, shall be removed from office.

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11. "The commissioner of the said land office shall be appointed by the President of the United States, by and with the advice and consent of the Senate; and shall receive an annual salary equal to the salary of 'the Auditor of the Treasury, payable quarterly," &c.

Also, the following extract comprises nearly the whole of the Act of the 4th July, 1836, entitled, "An Act to reorganize the General Land Office." Omitting the enacting clauses, and the sections 10, 11, and 12, that act says:

1. "From and after the passage of this act, the executive duties now prescribed, or which may hereafter be prescribed by law, appertaining to the surveying and sale of public lands of the United States, or in any wise respecting such public lands; also, such as relate to private claims of land, and the issuing of patents for all 'grants of land under the authority of the government of the United States, shall be subject to the supervision ' and control of the Commissioner of the General Land Office, under the direction of the President of the Uni'ted States.

2. "There shall be appointed in said office by the President, by and with the advice and consent of the 'Senate, two subordinate officers, one of whom shall be called principal clerk of the public lands, and the other ' principal clerk of private land claims, who shall perform such duties as may be assigned to them by the Com'missioner of the General Land Office; and in case of vacancy in the office of Commissioner of the General 'Land Office, or of the absence or sickness of the Commissioner, the duties of said office shall devolve upon, ' and be performed ad interim by, the principal clerk of the public lands.

3. There shall be appointed by the President, by and with the advice and consent of the Senate, an 'officer to be styled the principal clerk of the surveys, whose duty it shall be to.direct and superintend the 'making of surveys, the returns thereof, and all matters relating thereto, which are done through the offices of the 'Surveyors General; and he shall perform such other duties as may be assigned to him by the Commissioner of 'the General Land Office.

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4. "There shall be appointed by the President, by and with the advice and consent of the Senate, a Recorder of the General Land Office, whose duty it shall be, in pursuance of instructions from the commissioner, 'to certify and affix the seal of the General Land Office to all patents for public lands; and he shall attend to 'the correct engrossing, and recording, and transmission, of such patents. He shall prepare alphabetical indexes of the names of patentees, and of persons entitled to patents; and he shall prepare such copies and exempli'fications of matters on file, or record, in the General Land Office, as the commissioner may from time to time 'direct.

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5. "There shall be appointed by the President, by and with the advice and consent of the Senate, an officer to be called the Solicitor of the General Land Office, with an annual salary of $2,000, whose duty it shall 'be to examine and present a report to the commissioner, of the state of facts in all cases referred by the com'missioner to his attention which shall involve questions of law, or where the facts are in controversy between the agents of the government and individuals, or there are conflicting of parties before the Department, with his ' opinion thereon; and also to advise the commissioner, when required thereto, on all questions growing out of the management of the public lands, or the title thereto, private land claims, Virginia military scrip, bounty lands, and pre-emption claims; and to render such further professional services in the business of the Department as may be required, and shall be connected with the discharge of the duties thereof. [The Solicitor's office was abolished by the act of 12th June, 1844, and the duties transferred to the Recorder, or other person or persons in the office, at the option of the Commissioner.]

6. "It shall be lawful for the President of the United States, by and with the advice and consent of the 'Senate, to appoint a secretary, with a salary of $1,500 per annum, whose duty it shall be, under the direction of the President, to sign, in his name and for him, all patents for lands sold or granted under the authority of the • United States.

7. "It shall be the duty of the commissioner to cause to be prepared, and to certify, under the seal of the 'General Land Office, such copies of records, books, and papers on file in his office, as may be applied for, to 'be used in evidence in courts of justice.

8. "Whenever the office of recorder shall become vacant, or in case of sickness or absence of the recorder, the duties of his office shall be performed, ad interim, by the principal clerk on private land claims.

9. "The receivers of the land offices shall make to the Secretary of the Treasury monthly returns of the moneys received in their several offices, and pay over such money pursuant to his instructions. And they 'shall also make, to the Commissioner of the General Land Office, like monthly returns, and transmit to him 'quarterly accounts current of the debits and credits of their several offices with the United States."

The 10th section fixes the compensation of officers of the General Land Office, and designates the number of clerks and messengers at different rates of salary. The 11th repeals such provisions of the aforesaid act of 25th April, 1812, as are inconsistent with this act. The 12th prescribes the hours of official business in the Departments generally. The 13th prescribes the penalties on registers of land offices who give false information respecting land entries, to persons who may apply at their offices to enter lands. The 14th inhibits all officers of the General Land Office being concerned in the purchase of public lands-among whom registers and receivers, not being specially exempt, should have been considered as included.

Summary of matters relating to the public domain, which are rather extraneous to the internal operations of the General Land Office proper, but are brought under the exclusive supervision of the Treasury Department by the act of April, 1812.

(General Remarks.)

It is perceived from the recital of the 1st section of the act of the 25th of April, 1812, "for the establishment of a General Land Office in the Treasury Department," as above quoted, that the executive operations in executing the laws respecting the public lands of the United States, had, previous to the passage of that act, been performed (in different proportions) in the several offices of the Secretary of State, the Secretary and the Register of the Treasury, and the Secretary of War. This distribution of those functions commenced as early as the ordinance of Congress of the 20th of May, 1785, prescribing the mode of disposing of the public lands— according to which ordinance the Board of the Treasury had charge of the sales of those lands; and in regard to the ascertaining and the certifying to said board the claims for bounty lands, the Secretary of War was charged with that duty. And by the act of the 18th of May, 1796, supplementary to said ordinance, all patents for lands purchased, were, upon producing to the Secretary of the Treasury the final certificate of payment therefor (in pursuance of the credit system) issued or signed by the President, countersigned by the Secretary of State, and recorded in the State Department.

For a further history of these proceedings anterior to the aforesaid act of the 25th of April, 1812, a general reference must be made to the laws under the twenty-nine heads above described, as a more particular account of them is not essential to elucidate the existing system of operations in the General Land Office, except in regard to the unfinished remnants of those obsolete processes necessarily noticed in the sequel as occasionally revived and participating in the existing operations of the office.

In compiling the general summaries and the details of those operations which constitute our land system, I have availed myself of the use of the laws of the United States, with Burche's index of the laws; Clarke's compilation of the land laws, with the treaties and deeds of cession; Birchard's compilation of the land laws, with the opinions of attorneys general, and the instructions of the Treasury Department on questions arising under those laws; Gilmer's retrenchment report of the 23d of May, 1842; Ingersoll's report of the 2d March, 1843; and sundry memoranda obtained from the heads of divisions and others in the General Land Office.

From the information thus brought together, though comprising a complicated mass of almost inscrutable texture grown up and commingled as it were under the fostering of desultory legislation, I have endeavored to give an abstract of the fundamental principles and general policy of our land system, with some approach to method, and as nearly as practicable on the plan of the preceding chapters of other bureaus of the Treasury Department. As a first effort in regard to the subject in hand, it will perhaps be conceded that much is accomplished towards a more perfect and consistent arrangement of the whole of the operations of the government in treating for, and making disposition of the public domain-the utmost practicable perfection of which is, by the rapid increase of territorial accession, rendered daily more and more desirable in order to prevent the system from lapsing into inextricable confusion.

It is proper also to state, that in arranging this abstract under the appropriate heads of the official organization partly adopted by the act of the 4th July, 1836, and partly by the special distribution of certain details by the presiding officer-preceded by the ensuing outline of matters incident thereto-there has occurred in each, an unavoidable display of repetitions, both in words and in substance; which, however, are not entirely out of place in either situation in which they are reiterated, but, from the peculiar intermixing of the subjects, are rendered necessary for a further elucidation of the context. Besides, in consequence of the same details in kind

being in many instances distributed and required to be performed in several of the divisions of the office, they can only be faithfully portrayed and expressed by corresponding repetitions-of which, see the "summary and classification of duties," as given in the sequel.

(Of the acquisition of Territory or Domain.)

But previous to giving an abstract of the organization and operations of the General Land Office, as partly prescribed by law, and partly by regulation of the office, for the disposition of the public lands, some general conception of the original sources whence the public domain of the United States has beep derived, is perhaps an indispensable preliminary to the clear comprehension of the technical references and allusions that necessarily occur in the official details in relation thereto; which may be expressed in brief, as follows, viz: The derivations of the public domain of the United States, are, first, from foreign nations, by treaties or conventions with the United States; secondly, from individual States of the Union, by legislative acts, or deeds of cession; and thirdly, from Indian tribes, by treaties of cession-each of which being attended with their respective incumbrances, of private land claims, special reservations, and other conditions.

The definitive treaty of peace" between the United States and Great Britain, concluded and signed at Paris, on the 3d of September, 1783; and "the treaty of peace and amity" between Great Britain and the United States, concluded and signed at Ghent, the 2d of December, 1814, respectively defined the boundaries of the United States, in certain particulars, as then understood. Under the former, called the treaty of Independence, our northern boundary (not then completely designated, but afterwards partially settled by commissioners under the latter, called the treaty of Ghent, and finally adjusted by the recent treaty of Washington) ran on the line between us and Canada, till it reached the lake of the Woods, and thence due west to the Mississippi river; thence the western boundary ran down that river, till it reached the 31st degree of latitude; on which latitude, the southern boundary; leaving the Mississippi, ran due east till it reached the Apalachicola, whence it continued its easterly course, with variations, to the mouth of the St. Mary's on the Atlantic coast. Within these limits, each State rightfully claimed all the vacant lands that were embraced in their respective colonial charters, whilst the otherwise vacant lands within the same limits accrued to the United States.

Louisiana was acquired from France, by the treaty of the 30th of April, 1803, the said territory having the same extent that it possessed in the hands of Spain, when she ceded it to France; and having been the subject of repeated cession and retrocession between France and Great Britain and Spain, and then by the latter to France again, in various ways (as may be seen briefly recited in Clarke's introduction to his edition of the land laws) it became necessarily incumbered in its vast extent over the whole country west of the Mississippi, with private land claims derived from the respective governments through whose hands it had passed before its cession to the United States.

Florida was acquired from Spain by the treaty of the 22d of February, 1819, by which the questions of difficulty relating to the line between the United States and Florida as a Spanish colony were settled-as also was that which subsisted between the United States and the then Spanish provinces of Mexico-the former having been left in some uncertainty by the treaty of 1783 with England, and the latter by the treaty of 1803 with France, ceding Louisiana to the United States, as just mentioned-the southwestern boundary of which, however, having been recently extended by the acquisition or annexation of Texas, and the northern line having also been fixed at the forty-ninth degree of latitude from the Rocky mountains to the Pacific ocean, by the recent treaty with England, gives the United States an area of domain from ocean to ocean, and, in general terms, from the forty-ninth degree north to the Rio Grande south, leaving as yet an undefined limit between us and Mexico on the Pacific.

Thus, all the vacant lands within these limits became the property of the United States, severally in some instances and collectively in others-except the incumbrances of private land claims, and reservations, and the rightful possessions of Indian tribes-out of which vacant lands, before they were actually realized, the United States, in order to encourage those embarking in the revolutionary war, (and afterwards those embarking in the late war with England, and other wars,) promised bounty lands, in certain proportions, by sundry resolutions, as well in favor of officers and privates coming over from the British army, as in favor of the American troops, (for which see the Congressional journals and laws of that and other periods ;) as also did the state of Virginia make the like promises of bounty lands to her troops in the state and continental line in the revolutionary war. furthermore, much of the vacant domain thus acquired by the United States, which had been subject to the British, French, and Spanish governments at different times, and had been by them granted or pledged to individuals, as already intimated above, was consequently recognized by the United States to be set off to them as private land claims, on the respective titles thereto being duly established by testimony-in regard to which, many boards of commissioners have been created by Congress, from time to time, to investigate those titles, and determine their validity, or report thereon.

And

At the conclusion of the revolutionary war, those States that claimed lands under their respective colonial charters or grants from the crown, commenced to make deeds of cession of those lands to the United States, which they perfected at short intervals, from 1781 to 1802. As an evidence of a previous consultation and con