109
Sec. 2. And be it further enacted, That there shall be appointedin said office, by the President, by and with the advice and consent ofthe Senate , two subordinate officers, one of whom shall be called Prin-cipal Clerk of the Public Lands , and the other Principal Clerk on Pri-vate Land Claims, who shall perform such duties as may be assignedto them by the Commissioner of the General Land Office; and in case
duals, who acknowledge no connection with, and owe no allegiance to any government whatever, thecountry becomes the property of the discoverers in common, so far as they can use it. Ibid.
If the discovery be made and possession taken under the authority of an existing government, whichis acknowledged by the emigrants, the discovery is made for the whole nation; the country becomes apart of the nation ; and the vacant soil is to be disposed of by that organ of the government which hasthe constitutional power to dispose of the national domains. Ibid.
According to the theory of the British constitution, all vacant lands are vested in the crown as repre-senting the nation ; and the exclusive power to grant them is admitted to reside iii the crown as a branchof the royal prerogative. Ibid.
Congress , in order to guard against imposition, declared by the law of 1804 that all grants of land madeby the Spanish authorities in the territory west of the Perdido, after the treaty of St. Ildefonso, shouldbe null and void, excepting those to actual settlers, acquired before December 20, 1803. Garcia v. Lee,12 Peters, 511.
The controversy relative to the country lying between the Mississippi and the Perdido rivers, and thevalidity of the grants made by Spain in the disputed territory after the cession of Louisiana to the UnitedStates, were carefully examined in the case of Foster & Elam v. Neilson. The Supreme Court in thatcase decided that the question of boundary between the United States and Spain was a question for thepolitical departments of the government: that the legislative and executive branches having decided thequestion, the courts of the United States are bound to regard the boundary determined by them as thetrue one; that grants made by the Spanish authorities of lands, which, according to this boundary line,belonged to the United States , gave no title to the grantees in opposition to those claiming under theUnited States, unless the Spanish grants were protected by the subsequent arrangements made betweenthe two governments; and that no such arrangements were to be found in the treaty of 1819, by whichSpain ceded the Fioridas to the United States , according to the fair import of its words, and its trueconstruction. Ibid.
In the case of Foster &, Elam v. Neilson, the Supreme Court said that the Florida treaty of 1819declares that all grants made before the 24th of January 1818, by the Spanish authorities, “ shall be ratifiedand confirmed to the persons in possession of the lands, to the same extent that the same grants wouldbe valid, if the territories had remained under the dominion of his catholic majestyand in deciding thecase of Foster &. Elam, the court held, that even if this stipulation applied to lands in the territory inquestion, yet the words used did not import a present confirmation by virtue of the treaty itself, but thatthey were words of contract: “ that the ratification and confirmation which were promised must be theact of the Legislature ; and until such shall be passed, the court is not entitled to disregard the existinglaws on the subject.” Afterwards, in the case of the United States v. Percheman, 7 Peters, 86, inreviewing the words of the eighth article of the treaty, the court, for the reasons there assigned, came toa different conclusion, and held that the words were words of present confirmation, by the treaty, wherethe land had been rightfully granted before the cession, and that it did not need the aid of an act of Con-gress to ratify and confirm the grant. This language was, however, applied by the court, and wasintended to apply, to grants made in a territory which belonged to Spain at the time of the grant. Thecase then before the court was one of that description. It was in relation to a grant of land in Florida ,which unquestionably belonged to Spain at the time the grant was made, and where the Spanish authori-ties had an undoubted right to grant, until the treaty of cession in 1819. It is of such grants that thecourt speak, when they declare them to be confirmed and protected by the true construction of the treaty,and that thev do not need the aid of an act of Congress to ratify and confirm the title of the purchaser.The court do not apply this principle to grants made within the territory of Louisiana . The case ofFoster & Elam v. Neilson must, in all other respects, be considered as affirmed by the case of Perche-man ; as it underwent a careful examination in that case, and as none of its principles were questionedexcept that referred to. Ibid.
The power over the public lands is vested in Congress by the constitution without limitation, and hasbeen considered as the foundation on which the territorial government rests. The United States v. Gratiotet al., 14 Peters, 529.
The words “ dispose of” the public lands, used in the constitution of the United States , cannot, underthe decisions of the Supreme Court, receive any other construction than that Congress has the power ini's discretion to authorize the keeping of the lead-mines on the public lands in the territories of the UnitedStates . There can be no apprehensions of encroaching on State rights by the creation of a numeroustenantry within the borders of a State, from such reasons. Ibid.
The authority as given to the President of the United States to lease the lead-mines, is limited to aterm not exceeding five years. This limitation, however, is not to be construed to be a prohibition torenew the leases from time to time, if he thinks proper so to do. The authority is limited to a shortperiod, so as not to interfere with the power of Congress to make other dispositions of the mines, shouldthey think the same necessary. Ibid.
The law of 1807, authorizing the leasing of the lead-mines, was passed before Illinois was organized asa State. She cannot now complain of any disposition or regulation of the lead-mines previously made byCongress . She, secondly, cannot claim a right to the public lands within her limits. Ibid.
Under the acts of 1805, chap. 26, 1806, chap. 39, 1807, chap. 36, it was necessary to file the evidenceof an incomplete claim under French or Spanish authority, which bore date anterior to the 1st of October1800, as well as those which were dated subsequent to that day; and in cases of neglect, the bar providedin the act applied to both classes. Ibid.
A title restingon a permit to settle and warrant of survey, dated before the 1st of October 1800, withoutsettlement or survey of any kind having been made, was an incomplete title within that act. Ibid.
K
A principalclerk of publiclands, and oneon private landclaims, to beappointed.