Slike strani
PDF
ePub

These warrants (exclusive of that in question) aggregate seventeen thousand five hundred (17,500) acres, and, as appears from "A list of officers of the Army and Navy who have received lands from Virginia for Revolutionary services, the quantity received, when received, the time of service for which each officer received land, &c., down to September, 1833," were issued June 13, 1783, for the services of Major-General Gates from May, 1776, to that date. (See Journal of the House of Delegates of the Commonwealth of Virginia for the session begun Dec. 2, 1833.)

The allowance upon which these warrants issued (as appears from a certified copy thereof from the records of the Land Office) is in these words:

I do certify that the Hon. Major-Gen'l Horatio Gates is entitled to the proportion of land allowed a major-general of the Virginia line for military service from May, 1776, to this day.

COUNCIL CHAMBER, May 30, 1783.

THOS. MERIWETHER.
BENJ. HARRISON.

Benjamin Harrison was governor of Virginia at the date last named, and this certificate is presumed to have issued as the formal act of allowance to General Gates for the services named by the governor and council of the State; and as no other "allowance" appears among the files it is also presumed that the present warrant issued under the same certificate. I think it also established that General Gates' military services-for which he was entitled to bounty land-continued from May, 1783, or for a period of seven years.

The first section of the act of Congress of August 31, 1852, provided that all out standing military land-warrants issued or allowed prior to March 1, 1852, by the proper authorities of the Commonwealth of Virginia for military services performed by the officers and soldiers, seamen, or marines, of the Virginia State and Continental line in the Army or Navy of the Revolution, might be surrendered to the Secretary of the Interior, who, upon being satisfied that the surrendered warrant was fairly and justly issued in pursuance of the laws of said Commonwealth for military services so rendered, should issue scrip in favor of the present proprietors of the surrendered warrant for the whole or any unsatisfied portion thereof, at the rate of $1.25 for each acre mentioned in the warrant, which remains unsatisfied, which scrip should be receivable in payment for any land owned by the United States subject to sale at private entry, and should be assignable by indorsement thereon, attested by two witnesses. The second section provided that the act should be taken as a full and final adjustment of all bounty land claims to the officers and soldiers, seamen and marines of the State of Virginia for services in the war of the Revolution, provided that the State of Virginia should, by a proper act of its legislature, relinquish all claims to the lands in the Virginia military district in the State of Ohio.

Pursuant to this last requirement the governor of Virginia, by an in

strument in writing, after reciting that the general assembly of the State, by resolution of December 6, 1852, approved and accepted the act of August 31, 1852, relinquished to the United States the lands in Ohio therein named, and thus complied with the proviso of the act. A warrant under this act having issued in November, 1857, Attorney-General Black advised the then Secretary of this Department, June 23, 1859, in response to a request for an opinion as to his power therein (9 Op., 354), that he had no power to issue scrip on a military land-warrant not issued or allowed by the State of Virginia prior to March 1, 1852. Thereupon, apparently to remedy the defect in the act, Congress passed the act of of June 22, 1860, "to declare the meaning of the act of 1852." It provided that the Secretary of the Interior, in extending the provisions of the act of 1852, should construe it so as to authorize the satisfaction in scrip of all warrants or parts of warrants issued on allowances made by the executive of Virginia prior to March 1, 1852, coming within the principles already recognized by that Department, and whether issued before or since March 1, 1852, provided that no warrant or part of a warrant should be satisfied in scrip founded or issued on any allowance made since March 1, 1852.

It is claimed by the present applicant that under this act, and acts of the legislature of Virginia, and under the allowance of the governor and council of Virginia above stated, the representatives of Major-General Gates (who died in 1806) are entitled to scrip for 5,8334 acres of public land, in addition to the 17,500 acres already granted him.

The pertinent Virginia acts are those of October, 1779 (Henning's Statutes at Large, vol. 10, p. 159); October, 1780 (Id. 10, p. 375), and May, 1782 (Id., 11., p. 84).

The act of 1799, reciting that no law of the commonwealth had yet ascertained the proportions or quantity of land to be granted, at the end of the present war, to the officers of the Virginia line on Continental or State establishment, or to the officers of the Virginia navy, and that doubts may arise respecting the particular quantity of land due to the soldiers and sailors, granted to every colonel 5,000 acres, lieutenantcolonel 4,500 acres, and so on to subordinate officers, and to soldiers, and also in like proportions to officers of the navy of the same rank as army officers, and to sailors as to soldiers.

It will be noted that this act made no provision for army officers above the grade of colonel.

The fourth section of the act of 1780 provided that

Whereas no provision has been made in land for the general officers of this State in Continental service, therefore be it enacted that there shall be allowed to a major-general 15,000 acres of land and to a brig adier-general 10,000 acres of land, to be reserved to them and their heirs, in the same manner and on the same conditions as is by law heretofore directed for the officers and soldiers of the Virginia line in Continental service, and there shall be, moreover, aliowed to all the officers of this State on Continental or State establishments or to the legal rep resentatives of such officers, according to their respective ranks, an ad

ditional bounty in lands in the proportion of one-third of any former bounty heretofore granted them.

The 9th section of the act of May, 1782, provided:

That any officer or soldier who hath not been cashiered or superseded, and who hath served the term of three years successively, shall have an absolute and unconditional title to his respective apportionment of the land appropriated as aforesaid. And for every year which every officer or soldier may have continued or shall hereafter continue in service beyond the term of six years, to be computed from the time he last went into service, he shall be entitled to one-sixth part in addition to the quantity of the land apportioned to his rank respectively.

General Gates appears to have received warrants for 15,000 acres of land under the first clause of the fourth section of the act of 1780, and for 2,500 acres under the act of 1782, being for "one-sixth part in addition to the quantity of the land apportioned to his rank" for his service beyond the term of six years, a total of 17,500 acres. The applicant claims that he (his representatives) is also entitled to scrip for 5,888} additional acres under the latter clause of the fourth section of the act of 1780, which grants "to all the officers, * according to their respective ranks, an additional bounty in lands, in the proportion of one-third of any former bounty heretofore granted them."

No law prior to this act allowed General Gates bounty land for his military services, and even if this act granted him the additional bounty named in the latter clause of section 4, the allowance would be limited to the one-third additional thereby granted, and would not, I think, include the one-sixth additional granted by the subsequent act of 1782; the act of 1780 expressly limiting the additional bounty land "in the proportion of one-third of any former bounty heretofore granted them." His claim should therefore properly be for one-third of 15,000 acres and not for one-third of 17,500 acres, or for 5,000 acres instead of for 5,8333

acres.

But I concur in your opinion that the grant of the one-third additional, as expressed in the act of October, 1780, was intended only for the benefit of those officers for whose services provision for bounty land had been previously made, and hence that there having been no law prior to this act granting bounty land to a major-general the pres ent claim, for the one-third additional in behalf of General Gates's services, is not within that act. The language of this provision seems clear and unambiguous, and is supposed to express just what the legis lature of Virginia intended, and in such case the rules of construction do not require resort to other statutes upon the same subject-matter for the meaning of the particular statute, especially where, as in this case, there is nothing in the others inconsistent with the particular statute. But, however this may be, I do not think I am required to construe these acts of the Virginia legislature as applicable to the present case, after construction thereof by the authorities of Virginia, but, under wellsettled principles, to accept such construction as the law of the case and dispose of it accordingly.

In his discussion of the act of August 31, 1852, Attorney-General Black, May 30, 1858, to the Secretary of this Department (9 Ops., 156): In 1734 Virginia ceded to the United States the largest and most valuable body of land that ever belonged to the public domain of any State in the world. But previous to the cession she had promised to give certain portions of it to the officers, soldiers, sailors, and marines who had served during the Revolutionary war in her Army and Navy. She did not strip herself of the power to fulfill this promise without exacting a pledge that it should be fully redeemed by the Government of the Union. She was generous to her sister States, but she was at the same time true to her own defenders. The obligation of the United States to satisfy the claims of the Virginia officers and soldiers has never yet been denied by any part of their government. Nor has it ever been doubted as a general principle that the claims ought to be settled and adjusted according to the laws of Virginia, and by such tribunals as she, in her own wisdom, might see proper to charge with that duty. What a soldier may be entitled to is a question of State law; and it is not consistent with the spirit or genius of this Government to interfere with the administration of State laws, or to expound their meaning. When a question is incidentally raised upon them before an officer, or in the courts of the United States, the interpretation they have received in the State is of binding obligation.

At every step which Virginia took in this business she asserted, in words or by clear implication, her right to decide, through her own authorities, upon the validity and amount of the claims made for military bounty land under her laws. She conferred the power successively on her register of the land office, commissioner of war, governor and council, without providing in any case for an appeal.

You ask me if these decisions are in the nature of judicial expositions of the law, and therefore binding? Undoubtedly. They are in their character so far like a judicial sentence that they are conclusive upon the parties and their privies. When the constitution or law of any State authorizes a person to decide a given question the judgment of such person is always conclusive. It makes no difference whether it be a court, a legislative body, an executive officer, or a special tribunal appointed for the purpose. The authority to hear, examine, and decide without appeal carries with it the power to determine it forever, to make an end of all controversy about it, and to close it against all future inquiry upon either the facts or the law. When, therefore, the State of Virginia authorized the governor and council to settle these claims a decision regu larly made by those officers was as conclusive as if the same jurisdiction had been given to and exercised by the Supreme Court.

In discussing the same act, Attorney-General Cushing said, January 7, 1854 (6 Ops., 243):

If it appear that any provision of the statutes of Virginia is of questionable import, and the courts of that State have considered and construed such provision, their decision is, in my view of the settled principles of law, obligatory on my judgment, so far as any judicial exposition of statute can be. [Referring to Elmendorff v. Taylor, 10 Wheaton, 159, wherein Chief Justice Marshall said:] This court has uniformly professed disposition, in cases depending on the laws of a particular State, to adopt the construction which the courts of the State have given to these laws. This course is founded upon the principles supposed to be universally recognized, that the judicial department of any Government

where such a department exists is the appropriate organ for construing the legislative acts of that Government.

See also Green v. Neal (6 Peters, 291), where it is held that the received exposition of any statute of a State by the highest judicial authority of such a State becomes as much a part of the law as if such exposition were a statutory enactment; and see also the several other authorities cited by the Attorney-General to the same effect. But, as stated by Attorney-General Black, such exposition need not be made by the courts of the State, but may be by any person or tribunal thereto authorized, and in either case the construction so made is obligatory, not only upon the courts but upon the officers of the General Government. If, therefore, the proper officers of Virginia have construed her bounty land laws in question and, especially, have adjudicated the claims of Major-General Gates thereunder, such construction and adjudication are conclusive upon this Department.

The case then shows that May 30, 1783, the governor and council of Virginia issued a certificate that Major-General Gates was entitled to the proportion of land allowed a major-general of the Virginia line for military service from May, 1776, to May, 1783. This was such an "allowance" as is contemplated by the acts of Congress of August 31, 1852, and June 22, 1860, and under it, June 13, 1783, bounty land warrants were issued to him for 17,500 acres by the proper authorities of the State. This quantity was manifestly granted to him under the first clause of the act of October, 1780 (for 15,000 acres), and under the ninth section of the act of May, 1782, for one-sixth additional land, or 2,500 acres; the two aggregating 17,500 acres. These warrants were issued. subsequently to enactment of the laws in question, when the whole subject-matter thereof was fresh in the minds of the authorities, and there was every disposition to accord to the officers all claims to which they were entitled under the law, and when also the officers themselves were present to protect their own rights. The issue of these warrants was therefore a construction of the laws then in force, and an adjudication of "the proportion of land" to which General Gates was entitled, and by implication ignored his right to any land under the latter clause of the act of 1780. The same warrants were accepted by General Gates (so far as appears) in full satisfaction of his claim under these laws, and not until about one hundred years later was it claimed (by the present application) that he was within the latter clause of the act of 1780, and entitled to more land than that already allowed him.

In view, therefore, of my own opinion that the present application is without merit, and that the construction of the Virginia laws is adverse thereto, and knowing of no authority under which the present register of the Virginia land office may readjudicate this matter once determined, I cannot recognize the validity of the warrant of January 10, 1832, based only upon the allowance of 1783, which has been fully satis fied by the warrants of that year.

I affirm your decision.

« PrejšnjaNaprej »