and last of said acts, and by virtue of the continued and uninterrupted possession of the said John Percifull, deceased, his tenants, heirs, and assignees, from 1814, and long previously, down to the present time, your petitioner claims the right to enter the said quarter section of land at the minimum price, and to obtain a patent for the same from the government of the United States.

The survey of the lands in question did not take place until early in the year 1838. Within a few months after that survey, Sarah and David Percifull, the widow and heir of John Percifull, attempted to prove their pre-emption. But inasmuch as the reservation made by the act of 20th April, 1832, was then in full force, and especially as the Indian title to said lands prevented the operation of the act of 1814, the said application was rejected.

In due time after the passage of the act of March 1, 1843, Sarah, the widow of said Percifull, offered to prove the right of pre-emption in the heirs of said John, and tendered the sum of two hundred dollars in gold, demanding to enter the same under the laws aforesaid. Her application was again rejected.

Your petitioner further represents that, in the year 1828, the said John Percifull, then living, leased his improvements on the said quarter section of land to one Ludovicus Belding for the term of five years. That under this lease, as the tenant of Percifull, the said Belding cultivated the said land in the year 1829, and then, before the expiration of his said lease, assigned the same to a third person. That in the year 1831 the said lease came again into the hands of the said John Percifull, who continued to occupy the place until his death as aforesaid. That afterwards, long after the said Belding had ceased to occupy or cultivate said land by himself or any one for him, the heirs of said Belding set up a claim for a right of pre-emption in said land, under the act of 29th May, 1830.-(First session twenty-first Congress, chap. 208.)

Your petitioner further states, that another claim was set up by Henry M. Rector, in the name of one Francis Langlois, pretending to have a valid New Madrid location, under the act of February 17, 1815, (Chap. 45, acts of the third sess. 13th Congress,) and covering the land in question. But no valid location was ever made in pursuance of that law, or at least none which has the effect to overreach the preemption claim herein set up, under the said law of 1814.

On the 23d of October, 1850, in view of the conflicting claims to the said land under the various laws mentioned, the Commissioner of the General Land Office, by the direction of the Secretary of the Interior, ordered the register and receiver of the land office at Washington, Arkansas, to give notice to the respective claimants, hear the testimony which might be presented by them, and report the same back to him with their judgment of the result. In pursuance of this order, the parties had notice to appear before the said register and receiver on the 20th day of January, 1851. There was no process by which witnesses could be forced to attend; and, unfortunately, some of petitioner's witnesses happened to be out of the State, and from the shortness of the notice none of them appeared on the day named, although your petitioner used all proper diligence in endeavoring to

procure their attendance. Two of these witnesses, however, appeared at the land office before the examination was concluded, and your petitioner asked that said witnesses might be examined; but the said register and receiver absolutely refused to receive their testimony, alleging that they had already disposed of the Percifull claim, and were then examining the Belding and Rector claim; your petitioner then asked that the said witnesses should be heard to testify in opposition to the claims then under examination, but this also was refused; your petitioner then insisted that the refusal to hear said testimony should be entered on their record, which they refused. But the said officers promised to send up to the General Land Office a separate statement of the facts, and such a statement was made out and received by them as correct and proper, but the same has never reached the General Land Office. Your petitioner has filed in the General Land Office affidavits stating these facts, yet he believes they have never received any attention, either from the Commissioner or the Secretary of the Interior.

Your petitioner expressly avers that the said witnesses were men of good character, worthy of full credit, and were ready, from their own knowledge, to prove all the facts necessary to establish the right of John Percifull, deceased, to a pre-emption on the land aforesaid under the said act of 1814. Your petitioner has perpetuated their testimony, or such of it as could be obtained in a court of chancery in Arkansas, and is ready to produce it when required.

Notwithstanding this unjust and oppressive conduct of said register and receiver, such was the strength of your petitioner's case, that the receiver decided in his favor, while the register decided against him.

In the case of Belding's heirs, the receiver decided that as there was indubitable proof of Belding's occupancy in 1829, under a written lease from John Percifull, binding himself to make improvements for the benefit of his lessor, his heirs were not entitled to a pre-emption under the said act of 1830. The register, however, ignoring the full and ample proof of Belding's relation to Percifull as his lessee, decided that his heirs were entitled to a pre-emption in their own right.

Upon the receipt of the report of the register and receiver at the General Land Office in Washington, D. C., it was decided that the heirs of Belding should be allowed to make an entry, although, as your petitioner understands, it was at the same time asserted that they were not entitled to a pre-emption, and could not obtain a patent. The Secretary of the Interior, in his letter to the Commissioner of the General Land Office, dated November 21, 1851, says in reference to this entry "The government will still hold the ultimate power of protecting its own rights, while the claimants will merely be placed in a position to contest the adverse claims of others to the same lands." Armed with the receiver's receipt, thus unjustly and illegally given, the heirs of Belding, under the statutes of Arkansas, have brought an action of ejectment against your petitioner, and while the government withholds the patent from the rightful owner, the spectacle may possibly be presented of a lessee setting up his possession against his acknowledged lessor, and ejecting him from property which he has held uninterruptedly for nearly half a century.

Your petitioner insists that, as the assignee of John Percifull's rights, he is entitled to a pre-emption under the act of 1814, as revived and re-established by the act of March 1, 1843. That his equity is superior to that of any other claimant, and that he is entitled to a patent upon payment of the minimum price of the public land. He further insists that, even if he were not able to prove, as he avers he is able and ready to prove, his pre-emption right under the said act of 1814, the entry allowed to the heirs of said Belding, if it be adjudged valid, ought to enure to his benefit, and he ought to be allowed to receive the patent upon the same.

But the General Land Office and the Department of the Interior have finally decided that neither your petitioner nor the said heirs of Belding are entitled to a patent, although the entry of the said Belding's heirs is still permitted to remain uncancelled, with the sole effect of harrassing this petitioner, without any possible advantage to the government. The Secretary of the Interior and the Commissioner of the General Land Office, as well as the Attorney General of the United States, seem to have taken for granted, without much examination, that the act of reservation, passed in 1832, is still in force, not repealed by the act of 1843; and hence they have almost entirely overlooked the claim of John Percifull, and the important facts which established it as superior to all the opposing claims.

If this Court should be of opinion that the act of 1843 supersedes and annuls the reservation made by the act of 1832, as against a valid preemption under the act of 1814, then this petitioner appeals to the evidence on file in the land office at Washington, Arkansas, and in the General Land Office at Washington, D. C., and also to other legitimate proofs which he may be able to adduce in addition, for the establishment of his right to a pre-emption, and the issuance of a patent in pursuance of the same. He prays that his rights in the premises may be duly investigated by the Court, and if established to their satisfaction upon the law and the facts, that his claim may be reported to Congress for such action as may be necessary, and especially that the entry made by Belding's heirs be cancelled as illegal and void, and that the patent issue to your petitioner upon the payment of the legal price of the land.

In accordance with the rules of this Court the petitioner states that no other person except the said Henry M. Rector is interested in this claim; that he has never applied to Congress for relief; that he has applied to the General Land Office and to the Department of Interior, but the executive officers seem to have paid little attention to his representations, and refuse him all relief. He therefore prays the judgment of this Court.

DISTRICT OF COLUMBIA,

City of Washington.

JOHN C. HALE.

BROWN, STANTON & WALKER,
Attorneys for Petitioner.

Before me, Benjamin K. Morsell, a justice of the peace in and for the city and District aforesaid, on this the 14th day of July, 1855,

personally appeared John C. Hale, the foregoing petitioner, and made oath in due form of law that the facts stated in the foregoing petition. are true, to the best of his knowledge and belief.

B. K. MORSELL, J. P.

IN THE COURT OF CLAIMS.--No. 135.

ON THE PETITION OF JOHN C. HALE.

Brief of the United States Solicitor.

This petitioner claims the right of pre-emption of a quarter section of land on which the Hot Springs of Arkansas are situated, under 5th section of act of 12th April, 1814, ch. 52, and the 3d section of act of 1st March, 1843, ch. 50. This claim was presented to the land officers of the proper district in 1838, shortly after the surveys had been completed in that district, and rejected:

Because, 1st, the lands claimed were ceded to the United States by the Quapaw Indians in 1818, and were not subject to pre-emption under the act of 1814.

2d. Because, by the 3d section of the act of 20th April, 1832, ch. 70, it is enacted that the Hot Springs in said Territory (of Arkansas,) together with four sections of land, including said springs, as near the centre thereof as may be, shall be reserved for the future disposition of the United States, and shall not be entered, located, or appropriated for any other purpose whatever."

3d. Because, if it be admitted that the land is subject to pre-emption, the claimant has failed to make the proof of settlement as required by the act of 1814.

It is admitted in the argument, that at the date of this decision the land was not subject to pre-emption; but it is insisted that the 3d section of the act of 1843, by which it is provided that every settler in the public lands south of the Arkansas river shall be entitled to the same benefits accruing under the provisions of the pre-emption act of 1814 as though they had resided north of said river," repealed the act of 1832, and subjected the land in question to pre-emption, and that his claim ought subsequently to have been allowed.

In answer to the objections to the insufficiency of the proof of settlement, the claimant alleges improper conduct on the part of the register and receiver in refusing to hear proof, &c.; but it is not alleged that they acted fraudulently or from improper motives.

The authorities cited in the brief of claimant's counsel declare the decision of these officers to be final on the question of occupancy and settlement, when not impeached for fraud or unfairness.-(Wilcox vs. Jackson, 13 Peters, 513.)

On the question of the claimant's right of pre-emption, had settlement been duly proved, the decision of the Land Office is in accordance with the principles decided by the Supreme Court, in Stoddard vs. Chambers, 2 Howard, 284; Mills vs. Same, 8 Ib. 345; Bissell vs. Penrose, 8 Ib. 317; Gear vs. United States, 3 Ib. 120; and in Wilcox

vs. Jackson, 13 Peters, 513; where it is decided that neither a law giving the right of location under a New Madrid certificate, nor one giving the right of pre-emption of public land within a specified district, authorizes the location or pre-emption of land which, prior to the time when such location or pre-emption was attempted had been reserved from sale for the obvious reason, that when, either because the land contained mines or salt springs, or other peculiar advantages, or because it was claimed by private individuals or was required for public purposes, it had been specially reserved from sale for future disposition, it was not to be supposed that general provisions of law having for their object the sale of land in the district the greater part of which had no mine or salt springs, &c., would repeal reservations made for special reasons which were not referred to in the general act.

The case at bar illustrates the subject. Before any locations or sales were allowed in Arkansas, Congress, by the act of 1832, provided that the sites of the Salt Springs and Hot Springs, and the contiguous land, shall not be subject to entry, &c., but shall be reserved for the future disposal of the United States. The second section authorizes the government to lease the Salt Springs for a term not exceeding five years, and directs the application of the rents. But as respects the Hot Springs, no authority is given to any one. In a few years, by a general law respecting pre-emptions in which not a word is said about Hot Springs or Salt Springs, this property, which was thought of so much value as to be expressly excepted from sale or disposition in any way, is supposed to have become private property at the minimum price. That such a result was intended, no one can contend, and it is the duty of the Court to carry out the purposes of the law.

But if the fact and law were both for the petitioner, I should object to the Court's entertaining his petition. He asks Congress to interfere, by its action, with questions effecting conflicting claims of individuals to specific property. It cannot be done fairly. The parties must be left to the courts, or to those officers who by law are invested with authority to hear all parties and decide between them.

M. BLAIR.

JOHN C. HALE VS. THE UNITED STATES.

Opinion of the Court delivered by GILCHRIST, C. J.

The petitioner claims a right of pre-emption to a tract of land, including the Hot Springs, in the State of Arkansas. He alleges that John Percifull settled on the land in 1808 or 1809, and cultivated and held possession of it until his death in the year 1835 or 1836; that after his death, his widow and heir, Sarah and David Percifull, possessed the land until they sold their right to the claimant, who now retains possession of it as their assignee. The claimant admits that Henry M. Rector is entitled to three-eighths of the claim under certain conditions.

In the year 1828 John Percifull leased the improvements on the land to one Belding for the term of five years. In 1829 Belding as