, 1862-11-16
chs. Ttibuue.
SUNDAY, NOVEMBER IS. 1859.
THEUNSOLD LANDS OF ROCK
+. ISLAND, ILL.
The Question Of Pre- emption-D Dsclaon
by the Attorney General. =

l We're the unso&d lauds OF Rock 1aland, In |
the STATE q. miaeas, subject t. Pss,e%patssa tsa
month Of April, l8572
:. AZ thsy r Eew tuhiees to presumption
The New I take of The subject presented by
Of confideripg them separately. have given
to tbeu, the eI21nlnatlou and reflection which
Their iur rortance demands, and proceed 10
statc my CONCLUSIONS ~
Roek Island, = part o! the pnelie lAnds OF
tho United States, Was reserved and occupied
hv the executive department Of the govern
mspt for min.a-y purposes. This reservation
did not originate, 81 has been supposeos n
the letter ot The eecreta'T OF War, lit. Ca,
houn, to the conp1sslones q 9e91 Ihs genera
haysn0 stated that the tsland Is deemed neces-
eary for military purposes, he requested that
il Be accordingly reserved for snch purposes,
ard that when the reservation was comp:eted
the var department. ahonld be ADVISED OF me
act. That letter aud the subsequent action
Of the lard cf1ce in giving notice Of the res-
e5vgsi1p to the register having charge o. tne
untl;c lsnds In the district wherein hock
fAlaud wss situated, were but steps stamping
Vith more formal character reservation
under the authority Of law. For, By various
ea1lv nets OF Congress, the prestdent hn oeen
anfhorIzed to erect fortdcanons In suca
places Is in his opinion the public saiety
6aorld require, and to establish tfaalng
houses st such posts and ? aces On aas u1S asuL
Judge most convenient. And by the set Of June
N,lsCQ q St. SAT, anappFopriasion was made,
among Other things, "for erecting such fortl-
1icatlont IS m1y, p the opinion Of sae ss pssai-
esTv frr tie urotection Of the Northern and
western fnuniie1s.s Under the geceral po wer
pfven hirn By this act, the Pealdent selected
5 military site On Rock Island, on which Fort
A1maoss Tas a7 SSas; s ass; Ra15oaa ao5 =.
formed Of the exact time when this selection
was made, but according to the letter of Gen:
IsEsup to the Commissioner Of the Genesal
Land Office, the fort wrs established during
the aass wer with Great Britain, and was oc;u.
kock Island for military purposes began when
the selection wss made, and from tnat tim
as The Supreme Court said Of another tracs q
land reserved under the same authority {W'l
cox Bgt. jackson, Is Pet 5l3}, "lt Vas sew
cred tom the mass OF public lands" ,
The selection OF Rock Island for military
uurposes xss not, rs VIC have seen, the una1
IhoIi1ea act OF the prasfdent, but was made !!
the exercise Of discretion vested IN him 0,
Congress. The Constitution vests IN GoDgres
tie power to dispose Of and make al needfu
rules and regulations respecticg the terT1toE.
or other property belonging to the Unite
Bp,es. The word "territo,y,' as hera used
IS neld 10 be equivalent 10 ,hs Eo1d lanaa
GuQ4FalGuE u Lit HtEA Aa14Ae1 W. -. AasS~ A+'
tiot, Il Pet. $50 and the power to dispose 9
the public lands under this clause whether b
sale or appropriation to other uses
be1cpgB to Congress and not TO The PIesldea
"a. s. agt. Fitzgerald, Is, Pet. al; o. 9. sg
NiccolI, / Paine, 849.) The reservation
Rock Is!and for military purposes derives i:
validity therefore, not alone from the act I
selection which authorized that selection pc
formed by The President, nor from any OF u
later acts Of his War Ministers, but pr1mat1
A. r&o- $rk kaI7th SYpH F6af cole
Hon. In Wilcox agt. Jackson. suprs,, the s
preme Court say, In reference to Lie erectii
Of Fort Dearborn: ii It weu1d not be douote
We suppose, By any one, that II Congress b
by Law d1rected TIE trading house to be esta
Hshed, and tie military post erected, at F.
Dearborp, by name, that thls would have be
by authority OF law. But instead OF de=igt
tirg the place themselves. they'll 1eft It 70 IT,
-crttaon Of the P.estdsat, sohieA Is precisely
Isane thing in eftct."
Rock Mland for the site Of q military fortfa
tiop, the erection and continued occnpauc}
that fortidcatiop, aud the repeated conmg
cations OF the War Department to the Oil
: desire and Intention to hold that island
military purposes, together with the lori
recognition aud acknowledgement thereof
The Isnd Office, m deriving their valid
from ths aisftsosa 9sa Ion q pG5G uHs 1sg
The same legal effect to Withdraw tho isl
Hom The booY OF the public lands, and ap1
priate It to the specific purpose named, q
1t Ind been done bY special act Of congr
I do not understand it to BE- denied
Rock Island WEE lawfully severed from
public lands sud set apart for military
ppees. But it is contended that the r!
dent, through the Secretary OF War. on
1lth Of February, 18:S, formally reln9u1s
this reservation. and placed the land at
A,spoeal Of the Department having charg
fhe public lands, and that it thus fell
Into the general body Of The public Ia
subject to entry and pre-emption rs s1c1.
meeting this question, concede taae
thourh there Is no evidence, SO far as q,
fnrned. that the President 10 fact appro
OF even knew Of the letter Of the secEetaz
War 10 tie Secretary Of the Tres
containing the suPpessaa M a.,rstnnal rstman'san 81
Sbserce Of any evidence of bis d
proyal, must be aceepted as the act OF
f1esident This principle Ia settled be
question, and indeed the validity Of the
Of The MaF Rns fssa 5spep ee
Had the president then, power By the a
hi. minister, to transfer to the body o
public lands, q tract which had been la7s
and regularly reeerved under the au;hor
an set Of Congress, ior military purposes
20 subject it to entry aud PEe-emptio
ee;t,,ra under The laws of the United st
I think the statement Of this question
pe}s negative answer. We have seer
fDt Df. 61CGQL UE11FkQ Q1b duhAtVA4a9 w .
rr:aie this land to military purposes, no
a1y power over the public lands inner
BIZ effice. but from an express grant OF !
frcm Congress- to erect fertilization viii
might deem necessary for TIE protect
tbt Northern aud Weston Hontlers-
true that as tbs executive hesd Of the
be Wis vested by lsw-wfth ample po'
suuer75ee aud control the fortlfcatit
erected, and the lands reserved for the
BIT might even, Il 6e deemed 1t proper
to use the fort and lands for purposes
tecston OF defense, and withdraw from
the forces and military property Of the
States. But, in my opinion, be had no
to take them ont Of the caase Of 70
1anae and reatoIe them to the genera
public lands. It il certain thstno such
Is conferred on the president in the act
which The selection Of site for Fol
strong was made
Il Vii be conceded, 1 suppose that ,
the authority Of Congress. the preside1
lie lands, and, by the erection and OK
Of lori, devoted to military. purpo
every instance where this has been az
1lcient Legislative authority Will be Il
the act, ellher In the torm OF gene
ute, fuch as the act Of 1909, or OF Up!
actment. But It the president could
this without tbs aid OF Congress,
could he Bnrul the came wotk Wit
-sane aid. The great power to execuo
fofthsr pews1 !; anso It whsn il j
completed 4 duty properly perfo'
the Executive under statutory auth
the validity and Hanctity which belo
statute ttse1f, and unless It be n
ter1ux OF the power conferred bT tha
the Executive can no more destroy
authorized work, without some othe
tive sanction, than any other person
assert such principle Is to claim to
ecutire the power to repeal or alter
Congress at viii.
When the President, in the exerc!
dfsc7ttjon vested In him By the &C
sekcted Rock Island "a the site Of .
expended the money appropriated Il
erecting The tort, ard occupied 1t Is
Sfstion. thus setting 1t aside a. q r
for military purposes, the power co
the act wse eIharsted, and ha ha
authority to recall that ressFVatl'
store The land 10 the condition OF
.1tops Of the public lands not 50 apl
fhxushe wound haye had to expead
mohe3 inerecttng the fort without
pr1ation By Congress fer that purI
Withdrawal Of the Land from the rtee
under the gu:hority OF Congress,
appropriated, ard tts approprtAtio
ana different usts, would be simply
<sto dlspofe az" It, the power t.,
as We have seen, resides only II
Ard, as the delegation Of this po
be found In the act Of 1909, neither
Of sry subsequent acs OF Congress
It can be derived.
Thfs view OF the Executive auth
preuisea seems 10 me to accord
with me plain and welt-4cepted III
t+k% 1t ~ In M