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JACKSON V. CLARK, 26 U. S. 628 (1828)

U.S. Supreme Court

Jackson v. Clark, 26 U.S. 1 Pet. 628 628 (1828)

Jackson v. Clark

26 U.S. (1 Pet.) 628


Construction of the Act of Congress passed March 2, 1807, entitled

"An act to extend the time for locating Virginia military warrants, for returning surveys thereon to the office of the Secretary of the Department of War, and appropriating lands for the use of schools in the Virginia military reservation in lieu of those heretofore appropriated."

The reservation made by the law of Virginia of 1783, ceding to Congress the territory northwest of the River Ohio, is not a reservation of the whole tract of country between the Rivers Scioto and Little Miami. It is a reservation of only so much of it as may be necessary to make up the deficiency of good lands in the country set apart for the officers and soldiers of the Virginia Line on the continental establishment on the southeast side

of the Ohio. The residue of the lands are ceded to the United States as a common fund for those states which were or might become members of the Union to be disposed of for that purpose.

Although the military rights constituted the primary claim upon the trust, that claim was according to the intention of the parties, so to be satisfied as still to keep in view the interests of the Union, which were also a vital object of the trust. This was only to be effected by prescribing the time in which the lands to be appropriated by these claimants should be separated from the general mass so as to enable the government to apply the residue to the general purposes of the trust.

If the right existed in Congress to prescribe a time within which military warrants should be located, the right to annex conditions to its extension follows as a necessary consequence.

If it be conceded that the proviso in the Act of 2 March, 1807, was not intended for the protection of surveys which were in themselves absolutely void, it must be admitted that it was intended to protect those which were defective, and which might be avoided for irregularity. If this effect be denied to the proviso, it becomes itself a nullity.

Lands surveyed are under the law as completely withdrawn from the common mass as lands patented. It cannot be said that the prohibition, that "no location shall be made on tracts of land for which patents had previously been issued, or which had been previously surveyed" was intended only for valid and regular surveys. They did not require legislative aid. The clause was introduced for the protection of defective entries and surveys, which might be defeated by entries made in quiet times.

The plaintiff brought an action of ejectment in the Circuit Court of Ohio, to recover a tract of land situate in Adams County, in the Virginia Military District and State of Ohio. On the trial of the cause, a bill of exceptions was tendered by the plaintiff to the opinion of the court upon the admissibility of certain testimony which was offered by the plaintiff and which was rejected by the court.

The facts of the case, with the matters which were the subject

Page 26 U. S. 629

of the plaintiff's exceptions, appear in the opinion of the Court.

Page 26 U. S. 632

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