, 1862-11-17
THE UNSOLD LANDS OF ROCK
ISLAND, ILL.
The Question Of Pre-emption- Decision
by the Attorney General


/
the s.atc Of Illinois. subject to pre-emption
.,rder the laws Of the United States Ii the
month Of April, 1877
!, Are they row subject to presumption
undtr fhost laws:
The view take Of the subject presented bv
t,saee questions relieves me of the necessity
oi cou-iderinE thtm separately. I have given
to them the examination and reflection which
their im1 ortance demands, aad proceed to
state my conclusions.
Rock Island, part g the public lands Of
The United Suites, was reserved and occupied
by the executive department OF the govern
ment for military purposes Thls resersatlon
did not originate, as has been supposed. N
The letter Of the secretary Of var, Mr. Cal.
1pnu. to the commissioner OF the general
land cf1ice, dated March :, 1873, wherein,
1,aSins stated that the island is deemed 1eses.
Il he accOrdircis reserved for such pu: poses,
and Tint wlca the reservation was completed
The war dtpar; ment should be advised Of the |
fact. That letter ard the subsequent action
Of tlir lard c1hcc in e1GiRG notice Of the req
er>ation to the register having charge Of the
nuttic lands in the district wherein Rock
Island WAS situated, we're but steps stamping |
vi b more formal character q reservation
which had in fact been made years before !
under the authority Of law For, by various ]
ea,ly acts OF Congress, the president has been |
authorized to erect foTdfeations in such |
,,laces as In his opinion the puolic safety |
s.onld require, and to establish trading !
II.
1i.1a, OF in The lhuian country, as he should !
INDIE most convenient and by The act OF June |
II, iSla c, ST. 5:7, anal,propz'a:Ion was made,
au,cnc o; h.r th,Cs, ''Ior erecting such forti- |
acnr Of ,nc L,ltvd States, be deemed neces-
e:ry for lie 3rte..iou Of the Northern and |
u cs1ern frou!iers.' Crdtr the general po ser
given him hy tbs ACT, TIE President selected
: military site on luck l-lAhd, on which Fort
Arr4strolS wAs huttt- u: 5. agt Raiiroad
B,idse Ca, & Mclean, ST. / am not in
formed Of lie exset lime VIXEN this selection
was ulsdc, but according to tbs letter Of Gen.
J: ssuY to tbr Commissioner Of the General
larc Office, the tnrs was established during
tie last war With Gr.at Brit lin, aud WAS occu-
pied il August, lSl5. The reservation OF
Esck !:lssiG TOR p.iil1sry purposes began when
The s:lrciiou waa made, ard from tRaJ time,
As he Sppaeme Court said Of another tract OF
land rrselvtd Iut;er the same authority (stil-
ccx sgt Jacss-a-, u PET 5lS), alt was seV-
z:ea iron. ,Ie mass I'll pubic LANDS"
-::ue stiec:icn q: Rock Island for military
7.yr;eses ~ss not, as ne have seer, the unan-
f!.,r;zsd act OF the president, but was made in
1le ,xercist 1f G:srrrsioa vested ia him BY
Cyp.re>s. TIE Colstir utiun vests il Cougress
I. poHcr tn dl=:'osc Of and nuke all needful
rats aid feall l:ops resI.cting the territory
o;Eer s.ls,SS sslsns ~ ~ easssl aze
is Held 10 be equivalent to lll'e Eord lands,
equivalent 10 the word lands, u. s. at. Ora
1i;1, II Pct. :;s) and .Le power to dispose OF
tTE 3iU: iic HFcs NnHeE tnls ciauae Wueauet "
sale er spEroirinian to oth,r uses.
be,. .rgs TO Cofsrt SIS and ut,t to the President,
{C. s. agt. Fi:z:, I'D, IS, Pet 421; u 5. ag-
NiccrN, l pa;ne, Ci3-) Tne rescrv :tion oi
Roek IsiaNd ,vr military purposes derives It's
validity Therefore, not alone from the act o
etjec:jon " islcn authorized tiat selection per
formed by The President, nor from any OF tut
la,er acts Of lis Var Ministers, but pri1n ssil1
trum tho Statute which authorized that se1ec
ton. In Wilcox aGs. Jackson, supra, the Su
1r;rE 1r RITA n 81
g. Fort Dearborn: t1t TIuld rot bt doubted
VT suppose, by any e1e, that If toDgress hat
BY law dlre cI.d tie iradsng house to De cst :o
Eshed, and tie military post ef~ctsd, ut Eur
Ue:n born, ty Eaale, That this would have berl
BY antluri'y o1 lax. But instead Of dc.i5na
ting Tie lice tlr lnse:ve>, nsy1e1t 1t to tte.'i,
c1sii"n u The PtsSiie"t, scAi:A is arsctssly I'll
Sc,nt thissy IL :'ttt-'
/ ascn, ti1ai3 a>s,snc that the selection c
Rock ]:laEtt ter The site Of 2 military torttdc:
t.u,,, the erection AID Continued occupancy
trial for:iticutica, AID the repeated contunn
CATIONS oi The War Department TO the Ollie:
having cbar.c OF a3,e pubic 1Auas, czp-cssiu
dt.ife std l.lcEtion to hold that lnd II
military PURPOSES, together 1ith the 3trua
Recognition and ackno #ledguieut tn. reof /
The L1nd Office, Ill deriving th' II va!iai
trr:ln the discretionary po~er vested in Il
Prcsitcnt bg TIE act IT 14th Ju1c, 1S0.', ha'
the same legal effect to Withdraw the islas
from the bocy 81 tie public Lands, aad appr
lriatc !: TO TIE flecitlc purpose named, us
l
do let Understand it to he denied III
Rock Island ~ae }aHiuliy severed from t
public lands and set apart for military pr
Tcscs. But it is conten6ed that the Pre
dent, tbroug1. lle Secretary Of War, oo t
117h Of February, ISIS, formally reIiaquish
Ills rtserta.iou, sud placed the land at 1
tsi*roEal Of tla Department having charge
The Public larstls, and that it thus fell oa
5u1o the general body Of the public Ian,
SUBJECT IL -nlry and pre-emption as such.
meeting this question, concedc tha-,
though fa7e IS ro evidence, SO far IS am
formed, tha: II: pres'teut ia M fAc: 12pr.ys
even kue~ OF the letter OF the Secretary
War 10 tie Secretary Of the T1ea-t
coIta;nin. the sup:'csrd r+lpouish1nt
sci he act of lie Secretary in I
abse1ce Ct any evidence OF his dis
1ros:.', .nust hr accepted AS the aet ct
Elt:iCtnt- This principle Is settled heyo
siats+:.n, and ;rdesd the validity 0! the i
s,f TIE War DepaE7 nlent III the selection :
1cstr ion ui Ruck Island depend npon It
HID the president thtn, power ny the act
Ii minister, TO transfer to the body OF
l,,,tl,c lands, u tract which had been lawfu
end 1.gn1a1ly reserved under the au' hori'y
au;-c: of Congress, ;"7 military purposes,
sp Subject il ~ ts-iry aud pre~smption
stlt.: rs under he l:-<s Of the Caited Sat
sfilk the st.tt!EeDt Of this question CT
l.ei: negative aps~tr. We hare seen I
s1t ls-~<id ident derived his authorits:to app
lr ale Lis land to military purposes, Eo. Ii
FLY +; Her over the public lands Inherent
llte sf.'cc, but from au express grant po,
Sre,n Congress to erect foriifcation which
cislt dem necessary for the protection
the Northern and Weston frontiers. It
tru', that as The executive head Of the nat
IL VS. vested by Law with ample 'po TeE
:a;, rvite and control the forlidcati4ns
s.cS. cd, and the lands reserved for their q
lie night even, if he dermed it prop=r, ce
&c use The fort and lands for purposes Of p
lection OF defense. and Withdraw from III
:bf forces ard military property Of the Uni
Sites. But, in my opinion, he had no po1
to take them out Of the class of reserV
3aods and restore them to the general body
public lands. It is certain thAtn such poF
is conferred en- the president in the act TN
which The selection Of site for Fort Al
Etrorg vas n1ade-
1t will be corceded, suppose, that with
zEe authori'y Of Congress, Inc president CO
could not have SELECTED portion OF the p
Tic lands, and, b1 the erection and occupa
OF Sort, des ofea to military purp ,ses.
every Instance where this has been done
Gc:eIt 1egi=latsve authority will be found
t4e Get, slth-T in the 1oru of q general =
ute, such as The DC. Of 1sea, or Vi special
this without the aid OF Congress, nei
could le anEul the same wotk wlthou:
same aid. The great power to execute atr
even discretionary, g5 no 1neaus Implies
further rower 10 undo it when it has |
completed. 4 duty properly performed
the Executive uho.r statutory authority
the validity and sanctity which belong te
statnte 1tstf, aud unless it be withit
:
1hc Executive can no more destroy his
authorized work, without some other lcs
tive sanction, thaa any other person eau
assert such principle is to Claim for 1hs
ccu1iye the power 10 repeal or alter IN q
Congress at will,
When the President, in tile exercise n
discretion vested IN lin bs the act Of
selected Rock island Us the site OF fort.
expended the money appropriated thercs
erecting lie iort, aid occupied il as mi,
Sra:ion, Enus sizing it usiae Us a resery
for military pprposcs, the power c3nferrt
the act was exhausted ard he had no
authur1ty 10 recall that resrryati,n m
store 1he land q The coudition of otha1
tltnb Of the l,nhl.c lands not so apor,7,ri
than liz Nou4d have had To eSpcuci t;,e =,
money in erecting tue fort wi:nout an =,
praa1ion BY Congress for that purnose
Withdrawal Of tue lanQ from the uses to y
Older the au boiity ot Congress. it has
appropriated, aud its appropriation To
-" aii'efsEl u.s. s. would be sim nly an ns.
W alsl,ose u" 1T, tie power 10 do e
% We Lave sten: resides only in tron
anu, Is Ire delegation or tn;s rnuar -;
be 3tund II The act Of 1StG} ,,ei, har - T
OF any subsequent act Of Coagrsss fron1 .
It can be derived. - oA3
TGis view Of the Executive au.ho-;.,
Z11tniscs &c. ms 10 ue to accord sn =,
iih tat pain and wtllaccptcd theory
division Of powers in CUR Gove1nm
hardly 10 require illustration. But
easily be demonstrated on various RI
1lat SO loEG as Congress fails to confer
Executive Department the power to d
<whc1heF ty ;:nhllc sale or by right Of
-cn1t}- f1lA Df hat ,,tr xbn