The Madisonian. [volume] (Washington City [i.e. Washington, D.C.]) 1837-1845, 1841-02-09
FOR TIL. MADlsoNIAN.
THE LAND sYsrEM--No. s.


not only evidence to him. and Others that the party
named has bought the specified and that obec
tons known the Land Officers whose duty il is
to examine and decide these points, either to the sale
land ITSELF to the person named becoming the
purchaser thereof but in many, if no, ALL Of the States
in which the public lands situate, such receipt,
by express statute is evidence of title of sufficient
grade to support an action of ejectment and there
FORE these receipts freely made the basis of sub
sequent transfers. &c. any other evidence of title TO
real estate.
Having this high character, and with the certificates
or purchase affecting they do the rights Of indivi-
duals, as well as of the Government to the soil,
the great Importance which should be attached to
these evidences of SALE in considering the practical
operations Of the Land System must be acknowledged
! 1t is admitted that through mistake, ignorance, or
fraud, receipts and certificates have been sometimes is
sued for lands the sale Of which was not authorized
by law, if SO authorized, could the time of entry,
only have been purchased by other individual
who had the right ofpreerence and for which patents
therefore should not be granted.
! No act Of Congress having been passed providing
for the correction of these descriptions of error the
subject has been frequently brought the consdera-
ton of the Attorney General and my present object
is to show from only two of the opinions of that officer
the legal which ought to be pursued in all such
by the General Land Office, and then to con-
trast that with the actually pursued by that
office In doing this, it must also be borne in mind
that the expositions of law, given by that officer
and his opinions to the proper proceedings under
those laws, have always, in other cases, been Iecog-
nized furnishing the true guide for ministerial ac-
| ton.
In his opinion Of the 21st April 1885, the Attorney
General, after referring to opinions given by Mr. At
torney General Writ in 1927 and 1929 that patents
ought not to issue for lands inadvertently sold goes
on to say, 81 have no doubt to the soundncss of
these opinions and in reference arising under
| the presumption laws of 1890 and 1884. l think it
very clear that the Commissioner of the General Land
Office may lawfully suspend The execution of letters
patent in every where he shall be satisfied that
the decision ofthe Register and Receiver obtained
by fraud or founded material of fact or
of law, until The decision Of The Judiciary The direc-
tion Of Congress can be obtained. II he (the Com
missionary that the Register and Receiver,
through corruption, ignorance, any other cause,
/ have allowed preempton claims not authorized by
law he may well suspend the execution of the patent
until he take the direction of the head of his de-
parment and with the sanction Of that head the
cation may be still further suspended until the direc
ton Of Congress, the decision of sorae competent
judicial tribunal shall have been obtained"
1T is perhaps needless to add that the power of cih
holding the execution of patent, where the regular
certificates have been produced, ought not to be
cised except strong grounds. 1t is equally obvious
that the particular course to be adopted where the APP
plication for patent has been suspended must Of
necessity, depend the peculiar circumstances of the
case. Where there are conflicting claims the parties
may be left to gate ana settle them in the Judicial
tribunals where the controversy IS exclusively be-
tween the Government and the individual claimant,
who has received, who holds the certificate of pur-
chase, II would to be equitable and just, the
Government cannot be sued that it should institute
appropriate legal proceeding for the purpose of
trying and determining the validity of the claim"
In his opinion Of the 2lst June 1885, the Attorney
General says; In all cases therefore, IN which the
entry has been allowed and the certificate granted
the affidavit Of the claimant but in which the proceed
ings otherwise regular the certificate be held
as good against all parties except the United States
and against them also until it be vacated by regular
judicial authority"
In May, 1896 the President approved of certain
rules which had been prepared by the Secretary Of
the Treasury with the advice of the Attorney Gene
raj for the government Of the Land Office in respect
to pre-empton cases" OF these rules, the fifth is in
Judicial the United States the patent shall be with
held until the direction of Congress- or the decision
of competent judicial tribunal shall be obtained
the claimant shall produce TO the Commissioner
tisiactory evidence TO remove the objection" The
sixth rule is Ii there be two opposing claim
ants and the supposed be prcudical to or
Of them and is not explained TO the satsfac-
ton of the Commission, the patent shall be withheld
at the instance ofthe party aggcved, for reasonable
time, enable him to institute suit to determine
the right and after such suit shall be commenced un-
} I'll the determination thereof
| Upon examining these opinions and directions il
clearly appears that the only power which the Com
missioner can exercise, even with the appreciation OF
the head of the department in of error or fraud
is 10 suspend the issuing of patent upon such i'm
properly granted certificate until if the question is be-
tween different Hdiriduats, they have the matter
examined into and decided upon by the Courts OF
Justice; or, if only between the government and the
purchaser his assigned until required by equity
and justice, the government should institute some
appropriate legal proceeding for the purpose of trying
and determining the validity of the claim and obtain
verdict.
There is no ambiguity ground for doubt, to
the mode which the General Land Office was to pur-
in such cases. either in the opinions OF the Attor-
ney General the rules prescribed by the Secretary
and approved by the President Yet il is now asserted
that they have been in numbercss instances and are
now almost daily violated and disregarded, and that,