Mr. Blake, on receiving the letter of the register advising him of the issuing of these certificates, wrote in reply, under date of the 10th Febru ary, 1843, stating that, by a letter of the 10th June, 1841, his predecessor had been requested to defer the issuing of a patent certificate until he might be definitively instructed by the department, and says: "In view of that communication to the register, I am surprised to learn that you have issued the certificates you mention; and, as questions connected with the confirmation and limits of the Houmas claim have been submitted to the supervisory power, and have not yet been definitively settled, you will recall those certificates, and suspend them until you receive further advice from the department." (Senate Doc. No. 45, p. 106.) He also advised Newcomb, the surveyor general, on the 28th of July, 1843, that he was not authorized to give an official sanction to any plat without definite instructions from the department. (Senate Doc. No. 45, p. 111.) Some of the purchasers from the government having applied to the General Land Office in March, 1843, that the sales to them might be cancelled and the purchase-money refunded to them, Mr. Blake submitted this subject to Mr. Spencer, then Secretary of the Treasury, on the 7th June, 1843. (Senate Doc. No. 45, p. 108.) Mr. Spencer accordingly examined the question submitted to him, and on the 24th July, 1843, communicated his decision to Mr. Blake, in which he states "that, admitting that Commissioner Graham was wrong-that the sales in question were unauthorized and void-yet the money paid is in the treasury, and it cannot be taken out without an application to Congress. The act of 12th January, 1825, authorizes this department to refund only when the United States had no title to the land sold, and that act does not reach this case, because, if the money is ordered to be refunded, that order must proceed on the ground that the Houmas title over the land in question is good. I cannot and will not decide that question. But I do not admit that Mr. Graham was wrong, and that the sales in question were unauthorized and void. The 3d section of the act of 3d March, 1811, I am inclined to think, had no other effect than to suspend the Executive power to offer for sale lands to which claims had been duly preferred, until the final decision of Congress thereon. From the date of the confirmatory act, all lands lying without the limits of the claim, as confirmed, would be relieved from that suspension, and become public lands, and subject to preemption rights attaching to public lands. The validity of these sales, therefore, depends on the decision of the question, when and with what limits has the Houmas claim been confirmed, if confirmed at all? And, until that question is settled, no money can, under existing laws, be drawn from the treasury for the purpose of being refunded on account of these sales; the power to refund, under the act of 1825, depending in this case on the conflict of these sales with the Houmas claim as a valid and legal title, and not because they were made in violation of the act of 1811, as alleged." He therefore was of opinion that there was no authority in the department to refund the money claimed. (Senate Doc. No. 45, p. 110.)

The counsel for the purchasers, it appears, addressed a communication to Mr Spencer on the 12th August, respecting his decision declining to refund the purchase money, which is not among the papers sent me. To this communication Mr. Spencer replied on the 28th August, 1843, as fol lows: "The case is briefly this: the Secretary of the Treasury is author

ized by law to refund the purchase money for erroneous sales of lands, only where the United States had no title to the lands sold. Whether this department can in this case regard the United States as having had title or not, depends on the decision of the question, whether the 'Houmas claim' has been confirmed by law, or its validity judicially established; and, if so, to what extent. The power of this department to refund, in this case, depending on the conflict of these sales with the 'Houmas claim,' so ascertained and decided to be valid, I know of no 'confirmation or other legal establishment' of the Spanish grant to Houmas. It is because the question of title is to be determined by the courts, that I refuse to decide it. There may be a cloud upon the title of the United States which justifies the General Land Office in declining to issue a patent, and yet the want of title may not be so clear as to justify the Secretary of the Treasury in refunding the money. I have no doubt as to the meaning of the act of January 12, 1825, the only law authorizing the Secretary of the Treasury to refund in case of erroneous sales of lands. The Secretary of the Treas. ury is authorized by that act to refund only in cases where the purchase is or may be void, the United States having no title to the lands sold: 1st, by reason of a prior sale; or, 2d, because of the right thereto having vested elsewhere under a prior British, French, or Spanish graut, recognised by confirmation by Congress, or its validity otherwise legally established; or, 3d, from want of title thereto in the United States from any other cause whatsoever. It is for want of title in every case. For such erroneous sales he may refund, and for such only, under that act. Or, in other words, Congress has intrusted to the Treasury Department the power to refund only where the sales were absolutely void for want of title in the United States; but, where voidable only against the United States, it has reserved to itself the power either to confirm the sales or to refund the purchasemoney; or, at all events, it has not granted it to the Treasury Department. "As to the alleged issue of 'patent certificates' for the Houmas claim' to its full extent, which you seem to regard as conclusive on the question of title, I have to remark, that whatever has been issued, purporting to be a patent certificate,' has been issued not only without the authority, but against the express instructions of the Commissioners of the General Land Office, and that a knowledge of the erroneous and unauthorized issue is believed to have been brought home to the holders. Even if the 'Houmas claim' were confirmed, whether patent certificates, or even a patent, could in that case rightfully be issued therefor, (and of course, if issued, their legal effects as such,) would depend on the fact, whether there was any provision of law authorizing the issue of such evidences of its validity; and this department can recognise nothing purporting to be a patent certificate' as having any effect whatever on the question of title, until it first appears that it is authorized by law to be issued for this claim, and that it has been regularly and fairly issued.

"I am of opinion, however, that the act of April 18, 1814, to which you refer, authorizes patent certificates' and patents to be issued only for claims to tracts not exceeding a league square, which by the act of March 3, 1807, the commissioners had power finally to decide, and did so decide; and that, of course, it has no application to the Houmas claim,' which was submitted in pursuance of law to Congress, for its final decision.

"I regard Mr. Wirt's opinion, to which you refer, as having but little

bearing on this case; it is founded on the admission that there was no an thority in that case to sell, the land having been excepted from sale by act of Congress. In this case, however, I am inclined to think that the acts of 1806 and 1811 merely suspended action until the final decision of Congress on the claims; and that in sales made after the confirmation of the Houmas claim,' within its limits as claimed before the commissioners, but without its limits as confirmed by Congress, there would be no want of authority to sell. But, however that may be, this department is not authorized to refund money for sales erroneous merely, but only for sales erroneous because the United States had no title to the lands sold. If, therefore, these sales were clearly unauthorized, still this department has no power to refund, until it is ascertained whether the United States had or had not title; or, in other words, whether there has been a 'confirmation' or other legal establishment of the Houmas claim,' and to what extent; and if so, in what cases the sales conflict with it." (Senate Doc. No. 45, p. 112.)

Mr. Spencer, on the 15th November, 1843, addressed a further com munication to another counsel of the purchasers, in which he states "that the claim which he had decided was disposed of on the assumption contended for-that Commissioner Graham was wrong in making the sales, and that they were unauthorized and void; assuming the ground that the act of 1825 would not authorize the Secretary of the Treasury to refund, except another point was settled by him, viz: that the United States had no title. This I refused to decide. Now all this had nothing to do with determining the limits of the Houmas claim, be they more or less. That claim has been confirmed to a certain extent, or it has not. If not at all, then the title of the United States is not shown to be defective as to any part; if confirmed to a certain extent, and the sales by Commissioner Graham were without the limits of the claim as confirmed, they were authorized. But I have not determined, nor will I undertake to determine, to what extent the Houmas claim has been confirmed. This is for the courts of law or Congress to decide." (Senate Doc. No. 45, p. 114.) He afterwards returned the papers to the General Land Office, with a copy of his communication above mentioned, so that the Commissioner might see what disposition had been made of the claim. (p. 113.)

There the matter seems to have rested until the 26th of May, 1844, when the counsel for the heirs of Hampton addressed a communication to the President, which he referred to the Commissioner of the General Land Office, and directed him to examine the case and give a condensed view of all the facts in writing. This communication and reference are not among the papers, but are mentioned in the report made in pursuance of the reference.

On the 28th of the same month, the counsel also addressed a letter to Mr. Blake, requesting that patents might be issued, and that as an application of a similar character had been made some time before, when the embarrassments that existed were such that the Commissioner did not feel authorized under the circumstances to issue patents, and as he might feel an unwillingness to give the final decision without the advice. of the Secretary of the Treasury or the Attorney General, he, the counsel, had no objections, but, on the contrary, should desire their opinion, and should be pleased if the application, with the papers in the case, were

submitted to them. (Senate Doc. No. 45, p. 115.) He also enclosed an opinion by Mr. McDuffie and Judge Huger, of South Carolina, in which they express the opinion that the parties are clearly entitled to patents under the act of 18th April, 1814. (p. 120) In consequence of this request, Mr. Blake, on the same day, submitted this application to Mr. Young, acting Secretary of the Treasury, for the opinion of the Attorney General, and his instructions. (p. 116.)

On the 5th June, 1844, Mr. Blake also made the report requested by the President; in which, after reciting the case, he states, as follows: "In Mr. Johnson's letter to you, he refers to the act of 12th April, 1814, as requiring patents to be issued for claims not exceeding a league square, and to the act of 18th April, 1814, as requiring patents to be issued on all claims which are included in the transcript of decisions made in favor of claimants, and transmitted to the Secretary of the Treasury;' states that, by these two laws, all the claims should be patented, when surveyed, which had been confirmed by the board of commissioners; and suggests that an order be given to issue patents in all such cases, when the requirements of the law are complied with. For claims confirmed by the act of 12th April, 1814, this office, on the presentation of the confirmation certificates required by this act, with the approved plats of survey, is prepared and will promptly issue patents in all cases that are regular and free from difficulty; but as to the act of 18th April, 1814, the decision of the late Secretary confines the act to cases not exceeding a league square. The question, however, as to whether it is coextensive with every claim favorably decided on in the transcripts, is now sub judice by the late submission of the papers to the Secretary of the Treasury ad interim, and a final decision on that point by the Executive will of course govern the action of this office." This report was not among the papers sent me, but was furnished by the counsel of the claimants.

The counsel for the claimants having filed an argument in support of the authority to issue patents, which will be found in the Senate document before referred to, page 117, Mr. Secretary Bibb, on the 13th August, 1844, transmitted to Mr. Blake his decision, that patents ought to be granted on the Donaldson and Scott and Clarke claims, and that persons who had been permitted to enter lands within the boundaries of the three claims should have a return of the moneys paid by them, according to the principles of an opinion before given by him. (Senate Doc No. 45, p. 126. A copy is also hereto annexed.)

In pursuance of this decision, the Commissioner of the General Land Office prepared the draughts of two patents, in the nature of quit claims for the Donaldson and Scott and Clarke tracts, according to the form used in the office in similar cases. The counsel for the claimants, however, objected to certain clauses in the forms prepared, and on the 28th August, 1844, the matter was submitted to the Secretary of the Treasury. The grounds of the objection were, that in the proposed conveyance by the United States it was declared that it should be "subject to any just claim or claims, to all and every part thereof, of all and every person or persons, bodies politic or corporate, derived from the United States, or from either the British, French, or Spanish authorities," and that the habendum was made "subject to any such just claim or claims as aforesaid," and "so that neither the United States nor any other person claiming under them, except as is provided in said act and the reservations aforesaid, may or

can set up any right or title thereto." The Secretary of the Treasury di rected these clauses to be omitted in the patents. (Senate Doc. No. 45, p. 132.)

The patents were accordingly issued, and bear date the 22d day of August, 1844, and are signed by the President, and not by his secretary. Having been transmitted to the counsel of the claimants on the 28th August, 1844, he, on the 19th October following, acknowledging their receipt, entered a caveat, that, in receiving them for a portion, the claim. ants do not relinquish their right, title, or claim to the residue; but, on the contrary, they will assert and maintain their right to the entire extent of the original claim. (Senate Doc. No. 45, p. 134.)

The Donaldson and Scott and Clarke tracts having thus been patented, two several applications were made in September and October, 1844, for a patent for the Conway claim. (Senate Doc. No. 45, pp. 134, 135.) And the surveyor general was afterwards instructed to furnish the register with a plat in accordance with the decision of the Secretary of the Treasury. The register was also advised of the decision. (pp. 137, 138.)

The certificate of survey and plat were accordingly made by the surveyor general, in this case, and bear date the 25th November, 1844, and they, together with the patent certificate, were transmitted by the register to the General Land Office on the 7th December, 1844. (See annexed plat, marked G)

Before, however, the return of the plat and patent certificate to the General Land Office, a resolution passed the Senate on the 10th December, 1844, directing the Secretary of the Treasury to communicate a copy of his written opinion directing patents to be issued, with copies of the opinions given by the other officers connected with the General Land Office in relation to the claim, together with copies of the surveys and of the transcripts of confirmation. (Senate Journal, p. 28.) These papers were accordingly transmitted to the Senate on the 8th January, 1845, and compose Senate document No. 45, so often referred to.

On the 7th day of January, 1845, the following joint resolu'ion was passed in the House:

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the issuance of grants or other evidences of title upon a Spanish land claim in the State of Louisiana, lying on the Mississippi, above New Orleans, commonly known as the Houmas claim, be, and the same are hereby, prohibited, until the further order of Congress in relation thereto."

This resolution having been sent to the Senate on the same day, was there amended so as to read in terms similar to the joint resolution of 1846, under which this examination is made. This amendment was sent to the House on the last day of the session, but was not taken up, and therefore failed to become a law. In consequence of these proceedings, Mr. Blake seems to have held the case suspended.

On the 5th March, 1845, a communication was received at the General Land Office, in behalf of the claimants of the Conway tract, enclosing a letter from one of their counsel to the President, dated 3d March, 1845, requesting him to direct the Commissioner to issue a patent in conformity with the decisions made by the Secretary of the Treasury. With that letter is a note from the Secretary of the same date, stating that the three claims are confirmed, and therefore patents ought to issue, if not