Rose v. Buckland ( 1856 )

Skinner, J.

The laws of Congress, of December 24th, 1811, and January 11th, 1812, gave one hundred and sixty acres of land to each of the non-commissioned officers and soldiers, who served in the late war of the United States with Great Britian, upon their discharge and faithful performance of their duties while in service, and upon such terms and conditions as Congress should thereafter by law provide.

The law of Congress of May 6th, 1812, provides for the survey of certain of the public domain; for the locating of military bounties therein; for the issuing of warrants for the period of five years, to the parties entitled to such bounty; for the granting of patents to them; and provides: “ that no claim for military land bounties shall be assignable or transferable in any manner whatever, until after patent shall have been granted in manner aforesaid. All sales, mortgages, contracts, or agreements of any nature whatever, made prior thereto, for the purpose, or with the intent of alienating, pledging or mortgaging any such claim, are hereby declared and shall be held null and void.”

This law also declares that the land shall not be subject to sale on account of the debts and contracts of the party entitled thereto, existing at the date of the patent. The law of Congress of April 16th, 1816, upon the same subject and carrying out the intention of the former laws, provides: “ That no transfer of land granted by virtue of this or any other law, giving bounties of land to non-commissioned officers, musicians,' or privates, enlisted during the late war, shall be valid, unless the contract or agreement therefor, or letter of attorney giving power to sell or convey, shall have been executed after the patents shall have been issued and delivered to the persons entitled thereto.”

By the law of Congress of July 27th, 1842, the party, entitled to land bounty for services in the war of 1812 with Great Britian (his heirs or legal representatives), is authorized to enter the amount of land he is entitled to under the previous laws, at the public land offices of the United States.

This law provides: that the certificate of location issued under the provisions of this act, shall not be assignable, but the patent shall in all cases' issue in the name of the person originally entitled to the bounty land, or to his heirs or legal representatives.” From the passage of the first laws, granting land bounties up to almost the present time, Congress has enacted laws reviving and continuing expired authority to prove right to and obtain military bounties under those early laws, and carrying out their spirit and intent.

These bills show that the ancestor of the patentees of the land in controversy was entitled to bounty land as a soldier of the war of 1812, and that it was patented to them for such bounty; that the entry was made under the act of Congress of 1842; that the patent issued to them in 1845; and that the complainants claim under the patentees by conveyances executed before the issuing of the warrant upon which the entry was made, and of course before the entry and before the issuing of the patent. The main question in these cases is, as to the validity of these conveyances. If Congress has power under the constitution of the United States to impose the limitations and restrictions upon the sale of the inchoate interest existing in the patentees by virtue of the laws prior to the granting of the warrant, or prior to the entry or to the granting of the patent, and those limitations and restrictions extend to these conveyances, it follows that they are void. Without the laws of Congress of 1812 and 1816 the law of 1842 would be wholly ineffectual. The bounty is given by these first laws, and the manner of dispensing it—of selecting the land—only is changed.

Under the first laws the land was drawn by lot; under the last, the warrantee may select the land by entry and the patent issues by authority of the laws creating the bounty, and the subsequent laws keeping them alive, and giving them more complete efficacy.

The limitations and restrictions imposed by the laws creating the bounty follow it until they are removed by law. There is no retrospective operation of law in these cases, in the light of invalidating contracts between individuals. The limitations and restrictions upon sale of the bounty are contained in the laws creating it, and without which it would not exist; and the prohibition against assigning the certificate of entry contained in the law of-1842, is a part of the law giving the right to make such entry.

The northwest territory embracing this State was ceded by individual States to the United States before the federal constitution went into operation, th'e proceeds of which were to constitute a common fund for the benefit of the whole. The ordinance of 1787, establishing political government over this territory, contains this clause : The legislatures of the districts or new States created out of said territory “ shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to bona fide purchasers.” The constitution of the United States, subsequently adopted, provides, “ that the Congress shall have power to dispose of, and make needful rules and regulations respecting the territory or other property belonging to the United States.” U. S. Constitution, Art. 4, Sec. 3.

This constitution and the acts of Congress passed by authority thereof are, within their sphere, the supreme law of the land.

That the federal government is one of limited and enumerated powers, and that Congress can exercise only such authority as is conferred by the federal constitution, is universally conceded, But in respect to those subjects where the power is expressly conferred by the constitution, it is supreme, and may execute the power by such laws as are necessary and proper ” for that purpose.

The “ power to dispose of and make needful rules and regular tions respecting the territory ” or public domain, being expressly delegated by the constitution to the United States, it follows that the laws of Congress, made for the purpose of such disposition and for the complete investiture of the title in the purchaser or donee, are made in pursuance of the powers delegated. 3 Story on Const. Secs. 1319-1322; 1 Kent’s Com. 242; Rawle on Const., 237, 240; Sergeant on the Const., Chaps. 31 and 33.

The power and jurisdiction of Congress over the land in question, while it remained the property of the United States, for the purposes of protection, disposition and investiture of title, I cannot doubt. And such has been the practice of the general government, with the acquiescence of the States generally, since the adoption of the federal constitution. 1 Kent’s Com. 258 to 260.

Laws granting bounties of land for meritorious public service have been passed by Congress at various times up to 1855, and most of them contain prohibitions against sale of the bounty while the title remained in the United States, or until the right should become tangible, by the issuing of a warrant or location of the land.

Congress has passed preemption laws, provided for adjudicating upon rights of individuals arising out of them; and although by the laws of this State these preemption rights are treated as property, this court has uniformly recognized these adjudications as valid and conclusive upon the parties. Gray v. McLanee, 14 Ill. 434; Bennett v. Farrar et al., 2 Gill. 598; McConnel v. Wilcox, 1 Scam. 354; Delauney v. Burnett, 4 Gill. 492; Turney v. Saunders, 4 Scam. 527; French v. Carr, 2 Gill. 664.

Congress has enacted penal laws against trespassing upon the government lands, and these laws have been recognized by this court and enforced within the States. Carson v. Clark, 1 Scam. 116.

As a simple proprietary of the public lands, the federal government would undoubtedly have the same power to attach conditions and restrictions upon grants to individuals as would appertain to other proprietors. But in these cases it is not necessary to ascertain the limit of legislation relating to the public lands, prescribed to Congress by the constitution. The conveyances which I hold invalid under the laws of Congress of 1812 and 1816, were executed before the warrant was obtained upon which the entry was made, and the patent afterwards issued. At that time nothing existed but an inchoate right of the vendors to have a warrant authorizing the entry of 160 acres of land; the land was not selected, and the title to it, both legal and equitable, was in the United States. The laws which gave the bounty, prohibited its sale while in this imperfect, intangible condition, as a “ rule and regulation ” respecting the public prop; erty, and the prohibition operated upon the contract. To hold these prohibitions unconstitutional, at this period, would unsettle titles to lands in this State to an alarming extent, and lessen the public confidence in the security of estates.

I do not wish to be understood as conceding that Congress has power in any manner to affect or control State laws operating upon the contracts or property of its citizens. It does not follow that because Congress may not exempt land from the operation of the State laws when it has become private property, that Congress may not exercise jurisdiction over it for the purposes of protection and disposition, while it remains public property of the United States. Nor do I wish to be understood as intimating an opinion as to the effect of the prohibitions of the laws of Congress of 1812 and 1816, upon conveyances of the land executed after entry under the law of 1842, and before the issuing of the patent.

In the case of Dyke et al. v. McVey, 16 Ill. 41, similar prohibitions against sale before the issuing of the warrant, under the late law of Congress granting bounties of land, approved September 28th, 1850, came before this court, and, although the question of their validity was not raised, the power of Congress to prohibit such sales is clearly conceded.

Until the United States have substantially parted with the land, and thereby divested the federal government of that jurisdiction over it conferred by the constitution, I cannot question the rightful power of Congress to provide for its protection and disposition in such manner as may be necessary and adapted to those purposes.

I concur with the chief justice upon the other questions presented by the record and discussed in his opinion.

The several decrees of the Circuit Court are affirmed.

Decrees affirmed.