, 1862-11-16

souatter, Even where Congress- l1as autho- d
1zed the eale Of these reservations, ne have 4
lot been without examples where the pubic F
interests have suffered under circumstances Q
.reatfpg strong suspicion Of official dlsho1ss-
y. Ii It be true that the executive can Of bis |
,vu will convert the military reserves Into 6
public lauts subject to presumption, II must c
1e conceded tllss the government holds them a
" most precar1ous tenure The temptation T
9 fraud and peculasIon which such power ]
offers, certainly furnishes an over whelmfng e
Feaeon in pnblic policy against conced'ng It's 6
But It viii be found that the view which :
bsve taken of this subject u sustained BY the I
almost uniform practices Of the Government {
in The disposition OF military reservations {
II here they have become useless for mlA.sry
vidsd the method OF aiEposing Of then, either
by directing that they ehould be sold ~ the
Sccrs;ary. cr that theg should be placed under
the cputrpl Of the General LIND Office, &C.
cording to circumstances.
The act Of March s. 1873, 6 ST., SEQ, sn-
tLcrzed the Secretary OF War, under the d.
1ectien Of the President to cause TO be sold
such military sites, belonging to the United
States, Is may have been found Or become
useless for military purposes, giving te the
Secretary authority On payment q the cor If
tile tn fee. It having been held BY varions
euthorittes that this act only authorized the
sale Of military sites which had becoms use
lete at the time Of tts passage, Congress, by
the lib section of the oct Of March ;, 1887,
I'll St, 23), extended its provisions :. to all
military sites, or such paris thereof which are
or uay be useless for military purposes"
The act OF 18th August, 1858 ~ ST. 81 pro.
vided that all public Lands theretotore reserved
= hlch, in the opinion Of the Secretary OF War,
were no longer useful or desired for such p1r- |
DOSES. or so much thereof as said Secretary |
might dssigna.e, should be and were thereby
| K.laced under the control OF the general land |
tfice, to be disposed Of and sold in the same
| manner sna u1der the Eame regulations As
| tther public lands of the United States. In
addition to these general lAWs, various special
acts Of Congress may be found scattered
through the etstute books, authorizing The
sites OF approrriat!ng them to other p1one
uses. a rtrleW Of tbese statutes will show
| btFord question that Congress no more aban-
dored the power to control ard dispose OF
military reservations than they did tha sams
power over the rest Of tue p1blic lands, and
int tte method py which, when 70 longer
needed for military PURPOSES, they we're dis
! pofed Of, WIS just as Weu defined and settled
by EengresB AZ the method by which the gen
eial beGy Of the public lands was opaaed for
settlement or sac,
A strikirg proof Of the vigilance with which
Con g,eBs exercised its power Of control
, over militsry sites is furnished By the oh
section OF the act OF June 12, 1855 III. Sc.
356) Sex1ous complaint having been made OF
tie manner In which the power OF falc ct
? / theee sites, Conferred BY the act Of March 5,
, | 1857 was exercised, fCoDgTess, by the SECTION
, | ret. Tred to, repealed the then existing Laws,
: CT parts Of Laws, which authorized the aale or
t military sites which vera or might become
8 useless fer military purposes, aud declared
Il that eaid 1ands should not be subject to sale
= or presumption under any Of the laws OF the
e United States, With p1ovi=o continuing N
: tcrce the act Of August 18, l8o6. relative to
: certa1u reservations In Florida.
l. For these te=sous am OF opinion that the
Il letter of the SecretsEy Of War to the Secretary
!, Of The Treasury, Of the lth OF February, 1s4S
ID was without authority OF law, and utterly Vole
b. Of the effect proposed, and thas the island {ex
IT e pt those fractional parts grsnted BY ACTS 0
N Cungrees TO certain private persons) remsiR'
a. reservation for military purposes. FMS res
IS eryation, in ny opinion, included original.
he the whole Of the island do not uadersfao'
That any donbt has ever been expressed tha1 |
of bad this extent, but il SO, reference to II
"a letter Of secretary Calhoun Of 2a March, 182l
OF and the letter of Secretary Cass OF tue lit
nj September, 1885, and the proceedings Of th
:er Land Officers hereunder, will pat such dont
or designated as the ex ent Of the reserVa 10:
1a1 sill, under the principle applied IN the ca
by Of Mitchell agt~ the uEited States, Fs
itY 76l, the whole would necessarily be embrace
he in it. ...-
I'VE Il follows from this that the Island WIS n
md subject to pre-emption under the laws Of =
10 United States IN the month Of April, 1S5
IT neither is it at this time; reservations Der
81. expressly exempted from the operation
hat tIoee lawR- ...-
taa Il have thus far treated this question me
,us- fully upon gepernl considerations than VI
esi- re3ererce to the special facts Of the case
the band, 1t Is tecause the principle 1t anVoi!
he'd seemed to me to require fair exan.nat?
the ard discuasis n. Claiming Tor the execut
. Of a power as think Eubveralve OF the Constl
,.ck ticn, this principle, If it be correct nist
nds, tend far hey ond the case in which it Is n
IN invoked, and Il 1t be erroneous, ought 10
al rejected as rule OF administration.
1 in But there are certain tucts disclosed In
1ad, pspere Won have submitted which show t
= Of ihe theory OF the Rock lsland heserTat
sary had been relinquished, and had reverted
the cepted by either the le2is1ative or execus
sap departments Of the goverament-not even
the tne war departments.
,ond L Congress treated 1t as q reservation
acts open to entry under the presumption La
and For not only did they authorize George
Il. |enpoit 10 enter fractional quarter-sec
It of Of the island prior to the alleged relnqu
the ment private act, End Apru, laa4} oat
fully sequently thereto, BY Pssase ast o. sa:a
y q nary. 1ss5 90 St H,,ss.e w, David b. sears
By 2. The secretary ot the interior, and
,tes? officers Of the land-cMce, repeatedly ref
com to reeognize any night Of pre-empt1ons
thst never allowed claim thereto II 70 true
tffom in letter to the secreta11 Of the Interior
Ill in ted 28th December, 1858, expressed t,e {
,oWer ion that the resefeanon 1aa 12len paek
al be theznsss of the public lands But his OF
on Of superior, the secretary OF tne mteIot, {,
It Is litter to the aonse Oh keptesentAAsess
latiou 24th jar uary 1859, in response TO resol'
Fer to Of the House inquirfng IS to 1.-THE preser
MS 60 nation Of the military reservation OF
II use. island; whittier the same mas been lrans1
CEASE by the var department TO The interior de
pro mert." &c, after detailing the facts Eel
them Is the reservation and alleged rel1nquisnl
United and the attempts Of the Wsr departme
power eel it, declares that the policy OF th
served pepaEtT ant, ID taking meas0les 1oI u
,dy Of Of the Rock 1sland military f9setVau9n
power it had become useless ss military sise
under that Of the Department in charge Of the
/ Arm lie lande, in declining any action exca
suryey the island, haa been IL accor
7ithout with the executive policy In similar case
could wze, In my opinion, warranted oy
le pub- construction Of the laws then In torce-'
upancy tar suggesting that the Legislative pen
es. II not provided any Inv or prescribed an
ne, sui ditfons according to which lands reser'
und fur military purposes can oe rennqusn,
1T e1n 1 CO.. % pasimeSfs % be adds: sfMy conelns,on
not do lore, 10 reply to the inquiry whether th
neither tafy 1e:er!a1ion Of Rock Island has 4 Peg
atrust. Depart1nent, IL, that It has not been sc
,l!es tie fe1fed."-EL Doc 2 seset So Cong,
med by :. Atteney-eenerl cushing, in c:
or1ty has prepared opinion OF tbs 2lst Angus
IL to the is tp. 670) held that Rock Island u
thin the subject to entry Is public land, becaus
statute, ! military reservation.
lis own 4, The war department, since the
{ legisla- | Secretary Marcy, has repeatedly and 6
car 70 | ously exercised acts Of control aud
: the Ex- ttou over the Island quite iucoustate
m act Of TIE theory Of It's rc1iuluiBhment. II
Armstrong was evacuated In 1855, and
se of the Sirce been ssszzisobed. but the b
Of 1859, which remained, aftsr the sale Of pt
fort, and | them In that year, together with int
lere:or, IN | were then placed In charge Of an a&e
q military ! 20 continued, at least Until the ~
clrber, 1855. Letter sec. war OF th
lferred by And in 1850 an order was issued
no more eectttsry Of war to Colonel Mason
%, and re- the reservation, bus it Whs never 6
other por- In co1uict With this almost unbre
ropriated, rent OF 1ee1slat1ye and executive ACT
the public opinion, stands the opinion OF Judge
IN appro- III tie case Of the Uu1ted States ag4
osr The Railroad Bridge Company. e McL'
to which, | With the highest respect for the op
has been ,hat distinguished and la1nented Jad
! TO other | compelled to belieye that. II he had
au atttmpt HE du, stion under con liberation u
do which. ful and thorough examlustion u
Congress, | opinion Indicates, he would hsVe bt
yer cannot a different conclusion. As the css
do know septed. this point seems to haTa bee
from which cddental8v before him, and wlthoi
plete view Of the facts. On page
,r3tv In the csares that s'she abandonment ot &c
10 aIsctJg 80 military post, and for all public
,nr II the was as complete as Its reservation
s~o-+ es .s ! and he distinguishes II images 537-S