The whole number of acres within these parallel lines is not stated; and, of course, the portion coming to the State of Ohio cannot yet be exactly ascertained. As, however, the quantity contained in the full sections which were thus located and appropriated to the State amounts to far less than that portion, the residue remains to be located and appropriated, in order to complete the quantity of land granted by Congress. In proceeding to do this, doubts have arisen on several points, which are finally resolved into those submitted to me in the following questions:

"First: Can those parts of sections which are cut by the parallel line, five miles distant from the canal, be located under the existing laws?" "Second: If the foregoing question be answered affirmatively, can a quantity of land, equal to the computed area of the cut sections, be located according to any of the usually recognised minor subdivisions of a section, among the alternate sections accruing to the State along the exterior limits of the belt, and as near as may be within those limits, although, as in the case of the Indian grants, (where the locations were confined to entire sections,) corners of those minor subdivisions would protrude somewhat beyond those limits?"

"Third: As portions of the sections on the exterior limits of the belt have been sold, an obstacle will exist to obtaining, in many instances, the full quantity out of the actually accruing sections, although the foregoing interrogatories should receive an affirmative answer; it will therefore re main to be further inquired, whether, in cases where such obstacles do exist, the State may be permitted to obtain the proper quantity by locations to be made out of the alternate sections remaining to the United States, as was authorized by the act of June 30, 1834, in cases where full sections were interfered with by previous sales?"

These questions, if I correctly understand them, must, in my opinion, be all answered in the affirmative. I think the decision of the Commissioner of the General Land Office, as to the quantity of land granted to the State, is correct; that it was not a grant of a certain number of sections, but that it was a grant of half the whole number of acres of land that would be contained within certain limits. If this were not made obvious by the express language of the act of March 2, 1827, all doubt would be removed by reference to the construction put upon it by Congress in the act of May 29, 1830, where they appropriate a specific number of acres to supply the deficiency in so much of the grant as belonged to the State of Indiana.

The manner of locating the lands thus granted appears to me to be designated with as much precision as the quantity. The three acts of Congress, which were all passed before any proceedings on the subject were commenced, are to be taken together. They clearly show that it was the intention of Congress, in the first place, to exclude from the operation of the grant all lands that had been previously sold or disposed of; in the next place, to reserve to the United States, out of the body of land granted, every alternate section, so as to compensate any loss the revenue might sustain from the gift to the State, by the increased value which the canal would give to the portion retained; and, lastly, to make up to the State the whole quantity of the land to which she was entitled, by appropriating to her all the remaining sections to the width of five on each side of the canal. If that was not sufficient, then the residue of the quantity was to be made up out of the alternate sections reserved to the United States, or

out of the lands recently purchased from the Indians, or out of the other lands in the neighborhood and near the canal: the latter, of course, not being limited to the body of land within the exterior lines of the grant, because the whole of that was already distinctly set apart for the same purpose.

There is nothing, it is true, in either of the acts, which designates the form of the locations, further than the appropriation of a certain "quantity of land equal to one-half of five sections in width on each side of the canal;" but I think there can be no doubt that it was the intention of Congress to make the grant in accordance with the long-established system of the public surveys, and that the general manner of location above adverted to was to be carried into effect without interfering with that system. Should, therefore, the lands in such of the five sections extending from the canal on each side as have not been disposed of or set off to the United States be still deficient in making up the quantity coming to the State, the residue is to be made up from the other lands above indicated, either in the sections, or the minor subdivisions recognised by the land system, as may be necessary; nor are such sections or subdivisions to be excluded, because they happen to be cut by, and protrude beyond, the exterior line of the belt.

To the SECRETARY OF THE TREASURY.

H. D. GILPIN.

SCRIP TO THE HEIRS OF CAPTAIN KIRKWOOD.

The heirs of Captain Kirkwood, who entered the revolutionary service in the Delaware regiment, in the year 1776, and continued in service until the end of the war, are entitled to scrip on a warrant issued for three hundred acres of land on account of his services, whether they were properly entitled to scrip on a warrant for four thousand acres issued by the executive of Virginia or not.

It appears that, by a construction given to certain acts and resolutions of Congress, and of Virginia, such of the troops from other States as were, in the course of the war, attached to the Virginia State establishment, and continued in service to the end thereof, were entitled to the same bounty from Virginia as if they were originally raised in that State.

In case the Secretary of the Treasury shall have any good reason to believe that such warrants have been issued in error or mistake, he may suspend the issue of scrip; or, if issued, cause measures to be taken to have it cancelled.

ATTORNEY GENERAL'S OFFICE,

July 1, 1840.

SIR: I had the honor to receive your letter of the 18th May, transmit. ting to me certain documents connected with the case of Robert Kirkwood, a captain in the revolutionary army, and requesting my opinion relative to the issue of scrip on a Virginia land warrant to his representa tives, pursuant to the act of 30th May, 1830.

The facts of the case appear from the documents to be these: Robert Kirkwood entered the revolutionary army as a captain in the Delaware regiment, in the year 1776, and continued in service, without intermis. sion, to the end of the war. By the resolution of Congress of the 16th September, 1776, a captain who continued in the service till the end of the war, was entitled to three hundred acres of land, to be provided by the United States. By acts of the General Assembly of Virginia, passed in October, 1779, and October, 1780, officers of the Virginia continental

and State lines, who should serve to the end of the war, were to be entitled to certain bounties in land from the State of Virginia: the quantity provided for a captain was four thousand acres. By the resolution of Congress of 3d October, 1780, it was provided that "the regiments of cavalry, artillery, and artificers, as they now stand, be considered as be longing to the States respectively to which they are or may be assigned; which States shall complete them to the full complement, supply them with necessaries, and in every respect treat them as if originally raised therein." In March, 1780, the Delaware and Maryland regiments were sent to reinforce the southern army; their devoted bravery at the battle of Camden is well known; and, after that affair, the Delaware regiment was reduced to two companies of infantry, only numbering one hundred and seventy-five men altogether-the one commanded by Kirkwood, the other by Captain Jaquett. It appears by the depositions of Captain Jaquett and Lieutenant Bennett, also an officer of the same regiment, that “ soon after General Greene took the command of the southern army, and, by his general order issued, the two Delaware companies were attached to Colonel William Washington's (Virginia) regiment of cavalry, and acted together as a legionary corps until peace was declared and the army disbanded in the year 1783." The bravery and services of Kirkwood and his little band, especially at the battles of Guilford and Eutaw, are wellknown historical incidents; and in the published accounts of those affairs, as also that of Ninety Six, he is mentioned as being under command of Colonel Washington. He is stated to have been discharged in August, 1753, at the close of the war. In the year 1785 he was settled with, in pursuance of the resolution of Congress, as a captain in the Delaware continental line; and on the 25th of May, 1791, received his warrant for three hundred acres of bounty land from the United States. This never appears to have been claimed; and on the 25th of January, 1825, on an application made by his son, Joseph Kirkwood, and his other heirs, a new warrant was issued to them for three hundred acres, in accordance with the provisions of the act of 15th April, 1806. This warrant, however, was not located.

It appears by the statements in the bounty land office, that as early as 1819 Colonel Rudolph, of the Maryland line, and Major McLane, of the Delaware line, who had been attached to Lee's (Virginia) legion; and as early as in 1822, Lieutenants Ricketts, Wilmot, Williamson, and probably others of the Maryland line, who had been attached to Harrison's (Virginia) artillery regiment, had been recognised by the authorities of the State as also entitled to bounty-land from Virginia; which they accord. ingly received. In 1832 similar allowances were made to Lieutenant Bennett and Captain Jaquett, and the representatives of Captain Kirkwood, on the ground, as appears by the documents, of their having been attached to Washington's (Virginia) cavalry regiment. Warrants were accordingly issued to them by the executive of Virginia, in accordance with the provisions of the act of 30th May, 1830. That to the representatives of Kirkwood is dated 20th February, 1833, for four thousand acres, for his services as a captain for three years in the continental line of that State; and these heirs, under the same act, received from the Treasury Department, on the 12th April, 1834, scrip therefor. In March last the same heirs made application to the General Land Office, under the provisions

of the 16th section of the same act, for scrip for the three hundred acres mentioned in the warrant of 25th January, 1825.

On this application being made, the fact of the previous issue of scrip to the same persons was adverted to; and it being doubted whether Captain Kirkwood could be regarded as ever having been on the Virginia State establishment, the facts were brought to the notice of the proper authorities of the State. This has been succeeded by a correspondence which is among the documents. The issue of the warrant by the executive of Virginia is justified by the register of that State, on the ground of Captain Kirkwood having been attached to a Virginia cavalry regiment in 1780, and served therewith to the end of the war; and also by the recognition of such proceeding by the resolution of Congress of 3d October, 1780, above referred to; and a copy of the documentary proof, sustaining the facts, and submitted to the executive of Virginia before the warrant issued, is transmitted by that officer. These circumstances are regarded as bringing the case within the original resolutions of 1779 and 1780, and entitling the applicant to the land bounty therein provided. The cases of the other officers already adverted to seem to show that such a construction has prevailed, and been acted upon by the authorities of Virginia, for more than twenty years.

If this state of facts be correct, I have no hesitation, in reply to your inquiry on this point, to express my opinion that there is no ground for withholding the scrip due from the United States to the heirs of Captain Robert Kirkwood, in lieu of their warrant of 25th January, 1825. To that they have clearly a right, under the provisions of the 6th section of the act of 30th May, 1830. No fraud, error, or impropriety on their part is alleged. The quantity claimed from the United States is that to which they are entitled. The quantity allowed in 1834, under the Virginia land warrant, was that which the acts of Assembly of that State authorized; the warrant was issued on evidence, of which the correctness is not disputed, and after full consideration of the authorities of Virginia; if there be any error, it arose not from the conduct of the claimants, but from an incorrect construction of the acts of Assembly by the executive of Virginia. The scrip was granted by the United States six years ago, upon this warrant, although the evidence was in the possession of their officers here, showing that the heirs of Captain Kirkwood had received, and then held, the warrant from the Secretary of War for the three hundred acres coming to him from the United States, as a captain in the Delaware line. Supposing the construction of the executive of Virginia, on which the Treasury Department issued the scrip in 1834, to be incorrect, it does not, in my opinion, authorize a refusal to issue that now claimed.

I proceed to reply to your other inquiry-whether the Treasury Department can go behind a Virginia land warrant, to ascertain whether an officer was on her own State establishment. By the 1st section of the act of 30th May, 1830, Congress declares that "the officers and soldiers, sailors, and marines, who were in the service of Virginia, on her own State establishment, during the revolutionary war, and who were entitled to military land bounties by the laws and resolutions of that State, their heirs and assigns, shall be authorized to surrender to the Secretary of the Treasury of the United States such of their warrants for the said land bounties as shall remain unsatisfied, in whole or in part, and to receive certificates or scrip for the same." By the 5th section of the same act, Congress further declares that its provisions shall extend, generally, "to

every person to whom the State had engaged to pay land bounty for services in the revolutionary war, of any description, by any law or resolution passed and in force at the date of the deed of cession by the State of Virginia to the United States." By the 2d section of the same act, Congress thus described particularly the warrants in lieu of which they authorize the Secretary of the Treasury to issue scrip: "No warrant shall be taken to be within the provisions of the act, which shall hereafter be granted, unless the executive of Virginia shall cause a certificate to be endorsed thereon, signed by some officer, stating that the party to whom such warrant shall be granted, his, her, or their ancestor or devisor, was entitled thereto by some law or resolution of the said State, in force at the time of the deed of cession." I am of opinion that it was the intention of Congress, by these provisions, to give scrip to every person entitled, before the deed of cession, to land bounty from Virginia, for revolutionary services which had not been satisfied, provided he applied therefor within the proper time; and that it was also their intention to leave to the executive of Virginia the authority to ascertain and certify, by its warrants, the persons who were entitled to such bounty. If, however, before the Treasury Department shall act upon the warrants, it has wellfounded reason to apprehend that they were issued in palpable error or mistake, I have no doubt that it is competent for it to suspend the issue of the scrip, and to submit the facts of the case to the proper authorities of Virginia, so that it may be re-examined, and the warrants cancelled if illegally issued. Even where the scrip has been improvidently issued, and the supposed error has been subsequently discovered, the same course may be pursued; and if the error in issuing the warrant is confirmed, appropriate legal steps may and should be instituted by the United States to recover back the amount.

To the SECRETARY OF THE TREASURY.

H. D. GILPIN.

CONTRACTORS FOR REMOVAL OF CHICKASAWS-HOW TO BE PAID. Contractors for the removal of the Chickasaws to their new homes must be paid from the appropriation of the Chickasaw fund made by the act of the 20th of April, 1836, even though some of the Indians did not avail themselves of the means furnished to remove them.

SIR: I have examined, in compliance with your verbal request this morning, the act of Congress of the 20th of April, 1836, which makes an appropriation for carrying into effect the treaties of the 20th of October, 1832, and 24th of May, 1834, with the Chickasaw Indians; and I now proceed to reply to your inquiry, whether the accounting officers have acted correctly in charging to that appropriation the sum which they have found to be still due to Simeon Buckner, the person with whom a contract was made by the United States for the transportation of those Indians to their new homes.

The act referred to makes an appropriation, out of the moneys received from the sale of their coded lands, for all payments and expenses which the United States are bound to make and provide for under those treaties.