Year: 1862

/ section OF the act above stated. Now the cues
ton is, whether he is to be put out by the points
OF bayonets, or by a judgment of a court of law


The question then naturally arises, why was the
injunction refused? l answer in the first place
that this determines nothing, because iniunctions
are granted or refused entirely at the discretion
of the judge. On these hearings, no rights are
determined. The judge probably believed that
the constitution and the oath of the officers in
command were of themselves sufficient for the
protection of private rights In this l hope fu-
ture events will show that he was right But the
man reason, 1t would appear, why his honor re-
fused the injunction is, he discovered that the
donation act and the amendments thereto-of
which the 9th section of the act of Congress above
referred to is part-expired by its own limita-
ton on the lst day of December, 1856" Well,
this Is quite discovery ard will when known,
certainly create about the same sensation through
out this land as would be produced if it was known
that the entire golden discoveries of this Territory
were an unmitigated humbug This of course
disposes of the pre-emption Jaw, as that law owes
its existence entirely to the donation law so far as
this Territory is concerned, and as necessary
consequence no claimant under the pre-emption
law has any more title to his claim than Pata-
gonian Indian has, This also dsposes of the Of
nee OF Register and Receiver of the land office.
and establishes the other fact that all their acts
since Dec lst, 1854 have been without the au-
thorlty OF law, and consequently nul and uoid, as
II was the donation law that created this Office
and continued it in existence, defines its powers
and provides for the payment of the salaries of
It's officers. To be 80 suddenly deprived Of their
salaries will be particularly heavy on those ele-
CANT gentlemen just at this time Also the office
OF Surveyor General-this immense institution has
been standing in the air since the erpiration of
laru nd al he, /
has been without the authority of law and conse-
quently not worth the paper on which the plat
ings are made, and as a matter of course the
handsome salaries of the Surveyor General and
his numerous employees have been illegal abstrac-
tions from the treasury which can only be made
right by the return to the treasury of all the saa-
ries that have been taken since the expiration of
this law, which | have not a question they will do
the moment they are convinced that this law er-
pired Dec. 1st, 1855. But with great Difference
to so high an authority, differ with Judge Oil
phant about that law. So far from that law hav-
ing expired, regard it the living title by which
every donation land claimant holds his land.-
Why and for what reason can we suppose that
that law is no longer in force? ? | believe there is
no pretence that it has ever been repealed This
is not claimed by Judge Oliphant, but that 4" it
expired by its own limitation" Let us look now





of an undertaking to examine such mass of mis-
cellaneous legislation as that contained in the
Donation Law and amendments thereto" as
great variety of subjects are legslated upon In
this as in all other laws there are portions of the
law that require certain things to be done on GER
tain days; as for instance, donation claimants are
required to notify their claims before Dec. 1st,
1856. Of course this particular provision of the
law cannot be done at any other time but this
very provision implies a continuance of the law to
enable the claimant to reside and cultivate for
four years afterwards, and prove up his residence
under the law and receive his patent. The short
est time in which this can be done is four years;
but in most cases it will require ten years. In
fact the history of this law shows that but few men
who took claims under it have completed their
tile in less time than ten years from the time
they settled upon their claims; and although the
time has passed by for men to take claims under
the donation law, yet the law continues in force
for the purpose of enabling them TO perfect their
titles and hold their lands | cannot appreciate
the reasoning that would maintain that the laso
that eTtended the prc-emption laws of 1S41 over
this Territory on the 18th of July, 1854, could
expire on the first day of December, 1855. and
yet leave in life the pre-emption law Hyou can
take away the roots and trunk of tree and leave
the top and branches still growing and standing
on nothing, as they did while the roots and trunk
were there, then l can suppose that the law to
which this pre-empton law owes its very exist
ence in this Territory may have expired. and vet
TINS act that depends entirely that continue
to live.


If there was any doubt about this matter the
9th section of the act of Congress of 18th July,
1854 would settle it beyond doubt. That act
extends the donation law with all the amend
ments to all ofhe lands IN Washington Territory
without limitation either as to time or geography
Then if it extended all of the provisions of the
donation law, we suppose it extended also the 9th
section of the act which positively limits reserva-
tions to twenty acres for every purpose except a
Fort. And what makes this matter still more
clear, the Government has construed the act and
given 1t the construction l now contend for, and
under that construction, abandoned their reserva-
tlons of similar nature about Vancouver, in
Clarke county. This law was referred to the
Attorney General, and under his opinion and con-
struction the Government Welded up their claim
to these stock and hay reservations. And for the
purpose of making this matter entirely clear,
will here quote portion of Mr.. Attorney Gener-
al Cushlngs opinion in which he gives a construc-
ton of this same law and on which the Govern
ment acted. says:


1st. Decision as to quantity of land to be re-
served for public use; and the places where to be
located, rests in the discretion of the President,
subject to such regulations as may from time to
time be provided by law, either as to the particu-
lar public use, the quantity subsequent disposal
thereof for private use. I'd. AT present, the stat
ute limitation as to quantity is not exceeding $40
acres for Forts, and twenty acres for any other
public use. Subject to this condition, the militia
ry reservation at Vancouver, in the Territory of
Washington, is valid. Andrews Digest of the
opinions of Attorney Generals page 419.


What immense strides we have made, and in
what a direction, in the short period that has
elapsed since 1858 At that time the Military
held themselves in respectful Difference to the
law, anu when disputes about private property
arose they were nfSt settled by the legally consti
tuted authorities, and the option just quoted
shows how they were settled in a case usss like
the present But such thing as violently taking
a mans property without process of law seems to
bring this and the period of 1776 very close to-
gether. The sons of Britain in the western colo
nies, were alarmed at the near approach of mil
itary despotsm, and very prominent among their
causes for grasping the sword was that the King
affected to make the Military superior to the
Judiciary" If acts of that kind stirred the frigid
blood of men educated under British institutions,
is it a matter Of surprise that men who have so
long breathed the purer air of freedom should be
Nv iOP VI lLlo fei} aCte lhdt uIONe
our fathers to obstinate and determined resist
ance.


In presenting these views to the consideration
Of those who may feel interested in them, l have
not forgotten or been in any manner unmindful of
the respect and high regard due from a private
citizen like myself, differing as l do in opinion
with those high in authority, and entirely pure
and unexceptionable in the walks of private life,
not doubling that those honorable gentlemen with
whom | differ are prompted by pure motives and
a sincere desire for the public good.


F. A. CHENOwETH.