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25th Congress, 
 Sc? Session. 
 
 Doc. No. 32. 
 
 Ho. OF Reps. 
 
 Executive. 
 
 r 
 
 LAND GRANTED TO INDIANA—CONSTRUCTION OF ACT. 
 
 FJlOM THE 
 
 PRESIDENT OF THE UNITED STATES. 
 
 CONCERNING 
 
 The construction of an act of Congress granting a tract of land to the 
 
 State of Indiana. 
 
 December 20, 1838. 
 
 Referred to the Committee on the Judiciary. 
 
 Washington, December 20, 1838. 
 
 To the House of Representatives: 
 
 An important difFererice. of opinion having arisen concerning the con¬ 
 struction of an act of (Congress making a grant of land to the State of 
 
 Indiana, and in which she feels a deep interest, 1 deem it proper to submit 
 all the material facts to your consideration, with a view to procure such 
 additional legislation as the facts of the case may appear to render 
 
 proper. 
 
 The report of the’Secretary of the Treasury, and jhe documents an¬ 
 nexed from the General Land Office, will disclose all the circumstances 
 deemed material in relation to the subject, and are herewith presented. 
 
 M. VAN BUREN. 
 
 Treasury Department, 
 
 December 19, 1838. 
 
 Sir : I have the hpnpr to submit, for your perusal, a copy of a com¬ 
 munication from this Pepartment to the Commissioner of the General 
 Land Office. Accompanying it are certain papers, numbered from 1 
 
 to 20, inclusive, having reference to a question arising under the 
 act of 2d March, 1827, entitled “ An act to grant a certain quantity 
 of land to the State of Indiana, for the purpose of aiding said State 
 in opening a canal to connect the waters of the Wahash river with 
 those of Lake Erie.” In pursuance of the suggestioi ontained in my 
 
 ■ 1 
 
 Thomas Allen, print. 
 
2 
 
 Doc. No. 32. 
 
 letter to the Commissioner, and for the reasons there assigned, I would 
 respectfully recommend to your consideration that the subject be submit¬ 
 ted for the further action of Congress. 
 
 1 am, respectfully, 
 
 LEVI WOODBURY, 
 Secretary of the Treasury. 
 
 The President of the United States. 
 
 P. S. The schedule annexed explains the character of the accompa¬ 
 nying papers. 
 
 L. W. 
 
 Schedule. 
 
 1. A copy of a communication, dated August 15, 1837, from D. H. 
 Maxwell, president of the board of public works of Indiana, with a 
 copy of the resolution and a copy of the map therein referred to. 
 
 2. A copy of a letter, dated 6th September, 1837, to D. H. Maxwell, 
 
 from the Commissioner. ! 
 
 3. A copy of D. H. Maxwell’s reply, dated the 27th of the same 
 month. 
 
 4. A copy of the argument, dated October 18, 1837, of the Hon. A. S. 
 White, of Indiana, in behalf of the delegation from that State. 
 
 5. A copy of a letter, dated 12th November, 1837, from the Governor 
 of Indiana. 
 
 6. A copy of a communication, of the 30th March last, from the Hon. 
 John Tipton and the Hon. 0. H. Smith, Senators from Indiana, with a 
 copy of a joint resolution of the General Assembly. 
 
 7. A copy of a letter of the 17th March last, from the Hon. John 
 Ewing, of Indiana, to the Commissioner of the General Land Office. 
 
 8. Do. do. of the 30th of the same month, to the Commissioner. 
 
 9. Do. Commissioner’s reply, dated April 14, 1838, to the two last- 
 mentioned copies of letters of the 16th and 23d April, 1838. 
 
 10. 11, 12, and 13. From the same gentleman to the Commissioner, 
 and the answers o/ the latter thereto, dated the 17th and 25th of the 
 same month. 
 
 14. A copy of a communication from the Hon. James Rariden. 
 
 15. A copy of a further argument, dated 28th April last, of the Hon. 
 A. S. White. 
 
 16. A copy of a letter, dated July 26th, 1838, from the Commissioner 
 of the General Land Office to the Secretary of the Treasury. 
 
 17. A copy of the opinion of the Attorney General, dated August 
 14, 1838. 
 
 18. A copy of a letter of the 23d August last, from the Secretary of 
 the Treasury to the Commissioner. 
 
 19. A copy of a report. No. 212, dated 27th November last, from the 
 Solicitor of the General Land Office to the Secretary of the Treasury. 
 
 20. A copy of a letter dated 11th December, 1838, from the Commis- 
 missioner of the General Land Office to the Secretary of the Treasury. 
 
 It is believed that the papers herewith transmitted present, in a 
 condensed forn>, all the material facts that have been submitted to the 
 
3 
 
 
 1 . 
 
 Doc. No. 32. 
 
 Department, in relation to the proposed extension of the Wabash and 
 Erie canal. 
 
 A few of the documents referred to in the accompanying papers are 
 not sent, on account of their voluminous character. If, however, they 
 should be desired by Congress, or the committee to which the subject 
 may be referred, they w'ill be immediately furnished by the Department. 
 
 L. W. 
 
 Treasury Department, 
 
 December 18, 1838. 
 
 Sir: Youi letter of the 11th instant, with the accompanying docu¬ 
 ments, in reference to the right of the State of Indiana to extend the 
 western termination of the canal connecting the waters of the Wabash 
 river with those of Lake Erie from the mouth of the Tippecanoe river to 
 Terre Haute, under the provisions of the act of 2d March, 1827, and to 
 the claim of the State to a further selection of land under the grant made 
 by said act in pursuance of such extension, has been received and fully 
 considered. 
 
 In a case of so much magnitude, and involving such a conflict of opinion 
 between the authorities of Indiana, the Attorney General, and the Com¬ 
 missioner and Solicitor of the General Land Office, and as the Attorney 
 General deems further legislation proper, I am disposed to submit the 
 whole subject to the consideration of Congress. It being now in session, 
 little delay is likely to arise from this course. 
 
 Accordingly, I shall proceed to lay the papers before the President, 
 with a recommendation that he make it the subject of a special communi¬ 
 cation to Congress, with a view to obtain a new declaratory act in expla¬ 
 nation of the course which it is deemed expedient should be pursued, in 
 making a final disposition of the whole matter. 
 
 I am, very respectfully, your obedient servant, 
 
 LEVI WOODBURY, 
 Secretary of the Treasury, 
 
 Commissioner of the General Land Offico. 
 
 No. 1. 
 
 Office of State Board of Internal Improvement, 
 
 I)idia}iopolisy August 15, 1837. 
 
 Sir : In obedience to a resolution of the State board of internal improve¬ 
 ment, a copy of which is herewith enclosed, the undersigned would re¬ 
 spectfully ask your attention to the subject of selecting and setting apart 
 the residue of the lands due the State of Indiana under an act of Congress 
 approved March 2d, 1827, granting certain lands in aid of the construction 
 of the Wabash and Erie canal. 
 
 In presenting this subject for the action of the Commissioner of the 
 General Land Office, under the direction of the President of the United 
 States, the undersigned, in behalf the board of internal improvement 
 
4 
 
 Doc. No. 32. 
 
 would respectfully ask leave to submit some of the views entertained by 
 the authorities ot the State, in reference to her right under the law of 
 Congress above referred to. 
 
 The first section of that act grants to the State of Indiana a quantity 
 of land equal to one half of five sections in width on each side of said 
 canal, and reserving each alternate section to the United States, to be se¬ 
 lected by the Commissioner of the Land Office, under the direction of 
 the President of the United States, from one end thereof to the other. 
 As the limits of the grant, in respect to its length, are thus plainly made 
 coextensive with the canal, the chief subject of inquiry that remains is 
 in reference to the length of the canal contemplated or authorized by 
 the act of Congress, according to its true intent and meaning. 
 
 On this point the intention of the law is not so obvious. No points 
 are specified for the commencement or termination of the canal, except 
 that it is “to unite, at navigable points, the waters of the Wabash with 
 those of J^ake Erie.” This phraseology is very indefinite. The Mau¬ 
 mee and Wabash rivers, which form the l oute of this canal, have been 
 navigated with small craft, with a portage between them of only nine miles, 
 ever since the discovery of the country by the French. The navigation 
 of these rivers improves gradually in descending from this portage, as 
 the volume of water is increased by the numerous tributaries, until they 
 unite, the one with Lake Erie, and the other with the Ohio river. Now, 
 it will not be contended that the construction of a canal across this portage 
 merely would meet the objects and intentions of the act of Congress. 
 And the increase in the depth of water in these streams is so gradual, that 
 there would be great uncertainty in selecting the navigable pointy 
 in the sense in which this phrase is used in the law. Under these 
 circumstances, it is fairly to be presumed, as well from the spirit as the 
 letter of the law, that Congress had in view such an extension oT the ca¬ 
 nal, in both directions, as would furnish, throughout this great national 
 thoroughfare, a navigation adequate to the demands of commerce and 
 the purposes of Government, leaving the length of the canal necessary 
 to effect this object to be determined by the discretion of those who 
 might be charged with the location, after a critical examination of the 
 route. But to which of the parties is this discretion confided ? On this 
 point the law is plain. The 2d section says that “so soon as the route 
 of the canal shall be located and agreed upon by said State,” &c. Jt 
 appears quite evident, therefore, that, according to the act of Congress, 
 the State, and the State a/one, has the right to determine how far down 
 the Wabash and Maumee rivers the canal shall be extended, keeping in 
 view the object and design of the grant. The final determination of the 
 State of Indiana, in respect to the necessary extension of the canal along 
 the Wabash river, will be seen by reference to an act entitled “ An act to 
 provide for a general system of internal improvement,” approved January 
 27th, 1836, a copy of which is herewith enclosed. The 4lh section of 
 this act provides for the continuation of the Wabash and Erie canal along 
 the valley of the Wabash river to Terre Haute, and thence across to the 
 Central canal, through which it will be connected with the Ohio river ; and 
 also appropriates a sum of money forthe construction of the same, equal to 
 about one half its cost. As the canal, as here authorized, does not connect 
 with the Wabash river at any point below Terre Haute, that point may be 
 considered as its termination, in conformity with the act of Congress, and 
 
Doc. Mo. 32. 
 
 5 
 
 of course no further extension of the grant could be urged. From the most 
 careful consideration of the whole subject, therefore, the conclusion seems 
 inevitable, that since the State, after a critical survey of the route, has 
 found it necessary, lor the purposes of commerce, to extend the canal to 
 Terre Haute, a fair and just construction of the act of Congress approv¬ 
 ed March 2d, 1827, will give to the State of Indiana a corresponding ex¬ 
 tension of the grant of land. This conclusion is fully sustained by the 
 action of the General Land Office department, in regard to that portion 
 of the grant w’hich was heretofore transferred to the State of Ohio, to 
 which 1 beg leave respectfully to refer. The documents accompanying 
 the last annual message of the Governor of Ohio (a copy of which I here¬ 
 with forward) give a full history of the negotiation between the authori¬ 
 ties of the State and the General Land Office department. From these 
 and other official papers to which I have had access, the facts which fol¬ 
 low have been collected. About the year 1828 a survey of the eastern 
 section of the Wabash and Erie canal, along the Maumee river, was made 
 by Howard Stansbury, acting under orders from the Engineer depart¬ 
 ment of the United States. By reference to the report of that officer to 
 the department, it will be seen that he terminated the canal at the foot of 
 the Maumee rapids, and expressed his opinion that a further extension of 
 the canal was not demanded by the interests of the country. The point 
 selected by Mr. Stansbury for the termination of the canal (the foot of 
 the rapids) is on the lake level; and it has been ascertained, by actual 
 soundings, that below this point there is at no time less than six and a 
 half feet water in the shallowest places. 
 
 During the year 1831 commissioners were appointed, on the part of 
 the State of Ohio, to select the lands due to that portion of the canal which 
 passes through her territory. These commissioners, it appears, adopted 
 Stansbury’s line, as far as he had run the same, for the purpose of making 
 the selection of land, and also made out township plats, showing the con¬ 
 nexion of the line with the public surveys, which plats-were forwarded to 
 the General Land Office, for the action of that department, in June, 1834.— 
 (See the letter of Governor Lucas to the Commissioner of the General 
 Land Office, dated 12ih September, 183b‘.) From the history of the ne¬ 
 gotiation before me, it does not appear that any fut ther action was had on 
 this subject until the 8th of April, 1836, when the board of public works 
 of the State of Ohio, with a view, probably, to a more perfect channel of 
 commerce, determined, by a resolution adopted on that day, to extend 
 the canal entirely to the Maumee bay, a distance of about fifteen miles fur¬ 
 ther down than the point originally selected for its termination.—(See 
 page 8 of the documents accompanying Governor Lucas’s message.) 
 
 The subsequent history of the negotiation shows that upon this deter¬ 
 mination of the proper authorities to extend the canal, the right of the 
 State of Ohio was recognised by the General Government without hesi¬ 
 tation.—(See page 20 of the documents accompanying Governor Lucas’s 
 message ) 
 
 This reference to the decision of the General Land Office department 
 in the case of Ohio is made with a view of sustaining the construction 
 which I have given to the law of Congress. If the act of Congress of 
 March 2d, 1827, authorizes a selection of lands for the extension of the 
 canal along the Maumee river, where there is at no time less than six and 
 
Doc. No. 32. 
 
 (> 
 
 a half feet water, and where the United States engineer deemed an ex¬ 
 tension of the canal unnecessary, the right of Indiana to an extension of 
 the grant for the construction of the canal along the Wabash, which affords 
 less than eighteen inches water on the bars during the summer season, can¬ 
 not be controverted. The undersigned would also beg leave further to 
 suggest, that the parties will be mutually benefited if the construction of 
 the act of Congress foiwvhich the State contends should be sustained ; and 
 that an extension of the grant would appear necessary to the full accom¬ 
 plishment of the important purposes which the General Government had 
 in view, and which in part, it is presumed, prompted its action upon this 
 subject. The United States and the State of Indiana are, in an important 
 sense, partners in the construction and use of this canal. The first sec¬ 
 tion of the act of Congress before referred to provides, “ That the said 
 canal, when completed, shall be and forever remain a public highway for 
 the use of the Government of the United States, free from any toll or 
 other charge whatever, for any property of the United States, or persons 
 in their service, passing through the same.” 
 
 This enactment on the part of the United States, and its acceptance on 
 the part of the State, forms a compact between the two Governments, 
 which secures to the former, so far as the grant of land may extend^ 
 rights and privileges which will be of much future importance, especially 
 in time of war—an occurrence for which it is the usual policy of all Govern¬ 
 ments to provide. The construction of the canal, and the extension of 
 the grant of land^ which the authorities of this State believe follows as 
 a matter of course, wdll provide “a public highw^ay for the use of the 
 Government of the United States, free from any toll,” &c., connecting 
 with the great chain of lakes on the north, and extending southwest to 
 the Cumberland road, a public highway which the United States are now 
 constructing, and which must ever form the principal thoroughfare, for 
 all purposes of Government, through the interior of the Western States. 
 If the United States should not recognise Terre Haute as the termina¬ 
 tion of the canal under the act of Congress, they can never, of course, 
 claim any right of way between that point and the mouth of Tippecanoe 
 river. 'I'he consequence will be, that their boats from Lake Erie must 
 stop at the mouth of Tippecanoe, and their boats up the Wabash must 
 stop at Terre Haute, except when the Wabash betw een these points is 
 high, which is seldom the case ; and it is obvious, that if, without the 
 recognition suggested, the United States should hereafter attempt to nav¬ 
 igate this part of the canal, and the State, as it would have the right to 
 do, should undertake to prevent it, consequences of the most unpleasant 
 nature might ensue. 
 
 \ maj) of the country between the mouth of Tippecanoe and Terre 
 Haute, showing the route of the canal, as located by the State engineer, 
 and adopted by the board of internal improvement, is herewith forward¬ 
 ed. If any additional maps, representing more minutely the portion of 
 the canal route with respect to the public surveys, should be necessary 
 to enable you to designate the particular lands reserved to the United 
 States, have the goodness to advise us, and they shall be promptly fur¬ 
 nished. 
 
 As most of the lands along the route of the canal to w hich the State 
 would be entitled have been sold bv the General Government, it is ex- 
 
 y * 
 
Doc. No. 32. 
 
 7 
 
 pected that selections elsewhere, in lieu of these lands, will be authorized, 
 as has been the case in respect to similar grants made to this and other 
 States. 
 
 Allow me, in conclusion, to express a hope that this subject may re¬ 
 ceive your attention at as early a period as other important duties of 
 your office will permit. 
 
 Very respectfully, your obedient servant, 
 
 D. H. MAXWELL, 
 
 President State Board hit. Imp.., Indiana. 
 Hon. James Whitcomb, 
 
 Cornmissioner of the General Land Office, 
 
 Resolution of the hoard of internal improvement., hi relation to the 
 Wabash and Erie canal grant, between the mouth of Tippecanoe and 
 Terre Haute, adopted Jime 15, 1837. 
 
 Resolved, That the president of this board open a correspondence 
 with the Commissioner of the General Land Office, in relation to the se¬ 
 lection of the lands due to that portion of the Wabash and Erie canal 
 extending from the mouth of Tippecanoe to Terre Haute, under the act 
 of Congress approved March 2d, 1827.” 
 
 No. 2. 
 
 General Land Office, 
 
 September G, 1837. 
 
 Sir: I have to acknowledge the receipt of your communication of the 
 15th ultimo, and of its enclosures, on the subject of the extension of the 
 VVabash and Erie canal route from the mouth of the Tippecanoe river 
 to Terre Haute, and also to inform you that the business will be imme¬ 
 diately taken up for examination, and the result made known to you as 
 early as practicable. In the mean time, I will thank you to communi¬ 
 cate specifically the information, whether the proposed new addition to 
 the canal is to connect with the Wabash river at Terre Haute. 
 
 I am, sii‘, very-respectfully, your obedient servant, 
 
 JAS. WHITCOMB, 
 
 Commissioner. 
 
 1). H. Maxwell, Esq., President of the 
 
 Stale Board of Internal Improvement, Indianapolis, Indiana. 
 
 No. 3. 
 
 Bloomington, Indiana, 
 
 , September'Zl, . 
 
 Sir : Your letter under date of the Gth instant has been duly received, 
 and I hasten to reply to the specific inquiry therein contained. 
 
 The Wabash and Erie canal, as extended, under the law o( this State, 
 
8 
 
 Doc. No. 32. 
 
 from the mouth of Tippecanoe river to Terre Haute, terminates in a ba¬ 
 sin at the latter point, and is immediately connected with the Wabash 
 river by means of lockag;e. The line adopted by the board of internal 
 improvement, with slight variations, is the one surveyed by Dr. Charles 
 T. Whippo, an experienced and scientific engineer, in 1835. From the 
 basin above mentioned, the canal (called the “cross cut”) will be ex¬ 
 tended so as to intersect the centre canal on the west fork of White 
 river, at or near the mouth of Eel river. 
 
 Herewith I send you a copy of Dr. Whippo’s report. 
 
 The 3d section of the law of this State, providing for a general system 
 of internal improvement, directs the extension of the Wabash and Erie 
 canal from the mouth of Tippecanoe river to Terre Haute; and, in ad¬ 
 dition to the uniting of the canal with the river at Terre Haute, the 
 board is authorized, if the public good shall require it, to connect at in¬ 
 termediate points. This last provision, however, evidently has reference 
 to acquiring additional water power, and not to any advantage that might 
 accrue to navigation. It is not contemplated to have any connexion 
 with the Wabash river, except at Terre Haute. 
 
 With sentiments of regard and esteem, your obedient servant, 
 
 D. H. MAXWELL, President 
 State Board of Internal Improvement^ Indiana. 
 Hon. James Whitcomb, 
 
 Commissioner of the General Land Office. 
 
 No. 4. 
 
 Washington, October 18, 1837. 
 
 Sir : The delegation from Indiana, desirous to put you in possession of 
 their views in relation to the claim of that State to select further lands 
 for that part ( f the Wabash and Erie canal lying between the mouth of 
 Tippecanoe river and Terre Haute, beg leave, in addition to the views 
 heretofore submitted by the board of internal improvement, to offer the 
 following hasty argument upon these two points, to wit: 
 
 1st. That the State is not estopped from this claim by any former act 
 or negotiation ; and, secondly. That the principle has already been set¬ 
 tled, and the claim recognised, in the case of Ohio. 
 
 It is presumed that this is not a case of mere rights and that, when the 
 objects of the grant are considered, a strictly technical construction will 
 not be allowed to prevail. Upon just and equitable principles, such as 
 should govern in all transactions between Governments, the former ac¬ 
 tion of the State should not operate to deprive her of an extension of 
 the grant, of which a sister State has been allowed the benefit. The 
 correspondence between the canal commissioners of Indiana and the 
 Commissioner of the General Land Office, in regard to this grant, was had 
 in 1829. At that time, both parties were authorized to suppose, from 
 the previous action of the General Government, that the Wabash river 
 would be improved at least as far up as the mouth of Tippecanoe, by 
 which the necessity for a farther extension of the canal would be obvi¬ 
 ated. Such had been the uniform policy of the General Government, 
 
Doe. No. 32. 
 
 9 
 
 fin respect to other rivers of like character, and a survey of the Wabash, 
 as far up as the mouth of Eel river, had just before been made, by Cap¬ 
 tain Smith, of the United States Engineer department, under the authority 
 of an act of Congress passed 23d May, 1828. 
 
 It will be seen, therefore, that, at the time of making the original se¬ 
 lection, all parties acted under the supposition that the channel of com¬ 
 munication was to be perfected throughout, by the improvement of the 
 river below the mouth of Tippecanoe. But as this expectation has 
 been disappointed, (whether by a change in the policy of the Govern¬ 
 ment, or by other causes, it is unnecessary to inquire,) the necessity of 
 a farther extension of the canal lias, at length, become apparent; and the 
 State may piesent her claim, founded in equity and justice, for a corre¬ 
 sponding extension of the grant of lands in aid of the work. 
 
 But there are other facts which go to sustain this view of the subject. 
 The original survey of the canal as far west as the Tippecanoe, upon 
 which was based the action of the boaid of canal commissioners in 
 1829, was made by Colonel Asa Moore, engineer, acting under orders 
 from the Engineer department of the United States.—[See act of State 
 Legislature of January 5, 1828.) As the survey of the canal to themouth 
 of Tippecanoe^ and the survey of the Wabash river, with a view’ to its 
 improvement below that pointy were made about the same time, and by 
 engineers receiving their orders from the same department, the conclu¬ 
 sion is very reasonable that they acted upon one general plan, having 
 for its object the formation of a perfect navigation throughout the whole 
 extent of the river; and that Colonel Moore would not have stopped his 
 survey for a canal at the mouth of Tippecanoe, but for the confident and 
 universal expectation that the General Government would improve the 
 navigation of the river below that point. 
 
 These facts show, conclusively, that if the State, in 1829, did commit 
 a mistake by adopting the survey of Colonel Moore, for the time being, 
 (which she w’as not bound under the law to do,) this mistake was caused 
 by the action of the General Government. In fact, had the apparent 
 pr omise of the General Government to improve the navigation of the 
 Wabash been executed, there had been no error committed, nor would any 
 extension of the canal have become necessary. Under these circumstances, 
 the General Government surely cannot, with any regard to justice or pro¬ 
 priety, interpose any obstacle to the correction of a mistake so fatal to the 
 interests of an important section of the Union, as w'ell as to its own en¬ 
 lightened and liberal designs. 
 
 But the State authorities do not admit that her former action on this 
 subject can operate to divest the State of the rights for wdiich she now 
 contends, even if confined to the strictest rules of construction, disregard¬ 
 ing wholly the circumstances of the case, which have been adverted to 
 only for the purpose of strengthening the equity of her claim. 
 
 It has already been shown, by the statement made to you by the State 
 board of internal improvement, that the State, under the act of Congress 
 of 2d March, 1827, was vested with the discretion to^determine the loca¬ 
 tion and the necessary length of the canal. And, by reference to the 
 same act, it w'ill be seen that the time of making this location was also 
 left to the discretion of the State, with the single proviso, “ that the canal 
 should be commenced within five years, and completed within twenty 
 years,’’ from the passage of the law'. 
 
 2 
 
10 
 
 Doc. No. 32. ‘ 
 
 These were the rights of which the State became possessed upon the 
 passage of the act of Congress, and its acceptance by the State. By 
 what means has she become dispossessed of these rights? It’will not be 
 contended that she lias forfeited her rights by a failure to comply with 
 any of the conditions of the compact. If the vState has not the same 
 right, at this time, that she had originally, the change must have been 
 brought about by some action of Congress, revoking the discretion 
 conferred by the act of 1827, or else by the action of the State Legisla¬ 
 ture, relinquishing her rights voluntarily to the General Government. 
 
 But no such change in respect to the right of the State has been 
 brought about by any action of Congress; for Congress has had no action, 
 on the subject of this grant, which has any bearing upon this point. Nor 
 has any such effect been produced by any action of the State ; for in all 
 the legislation which has been had in respect to this grant, no such relin¬ 
 quishment of her rights can be found, nor has authority been given to 
 any of her agents to make such relinquishment. On the contrary, the 
 Legislature, in adopting the survey of the United States engineer, adopted 
 it only “/or the time heing^'^'* subject “to such alterations as the chief 
 engineer, who may be employed by the State of Indiana to superintend 
 the construction of said canal, may find it necessary, for the interests of 
 the State, to make thus distinctly asserting the right of the State to 
 control the whole subject of location.—(See 4th section of the act ap¬ 
 proved .January 23, 1829.) 
 
 It follows, therefore, that the rights of the parties under the act of 
 Congress have undergone no change ; that whatever the State could 
 rightfully have done in 1829, she could do in 1836. 
 
 It will not be doubted by any one that the State, in 1829, could have 
 extended the canal, and selected the lands to Terre Haute, under the 
 law of Congress, as well as to the mouth of Tippecanoe. If this be ad¬ 
 mitted, why is it not equally competent for the State to accomplish the 
 same object, by making the same location and selection at two different 
 periods? It is difficult to perceive, either from the letter or spirit of the 
 law, any ground for a distinction between locating the whole of the canal 
 in 1829, and the location of a part of it at that time, and the remainder 
 in 1836. 
 
 The principles of construction here contended for seemed to have 
 received the sanction of the department, in the case of the eastern por¬ 
 tion of the grant. 
 
 By reference to the 11th, 15th, and 16th sections of the act of the Le¬ 
 gislature of Indiana approved February 1st, 1834, on the subject of this 
 canal, (the title of the Ohio portion of the grant being then in the State of 
 Indiana,) it will be seen that the survey of Mr. Stansbury, which ex¬ 
 tended only to the foot of the Maumee rapids^ was formerly adopted for 
 the time being, and the canal commissioners directed to select and set 
 apart the lands accruing to the same. The duty of selecting the lands 
 was not performed by the canal commissioners of Indiana, for the reason 
 that the Legislature of Ohio, within a few weeks thereafter, accepted 
 the donation of lands lying within that State, as seems to have been 
 contemplated by the 23d section of the act of the Indiana Legislature, 
 before referred to. 
 
 The action of the Legislature, hoNvever, is evidence of the view^s en- 
 
Doc. No. 32. 
 
 11 
 
 tertained by the parties concerned, and of the decision made at that time 
 in respect to the termination of the canal. 
 
 In the selection of the lands due to the eastern extension of the canal, 
 it does not appear that the previous action of the State authorities was 
 urged by the department as having an effect to divest the State of the 
 rights originally secured to her by the act of 1827. 
 
 It is worthy of remark here, that the 11th section of the act of Febru¬ 
 ary 1, 1834, by which the location and extent of the canal were estab¬ 
 lished, for the time being, east of the State Ihie^ and the 4th section of 
 the act approved January 23, 1829, establishing the line of the canal, 
 for the time being, loest of the State line^ are identical in substance, and 
 nearly so in their phraseology. If, therefore, the extension of the grant 
 of lands was not prevented by the previous action of the State authori¬ 
 ties in the former case, it is difficult to perceive how this effect can be 
 produced in the latter case. 
 
 The action of the State authorities, which took place previous to the 
 extension of the canal beyond the original survey, was the same in re¬ 
 spect to the eastern as the western portion of the route, with the single 
 exception that, in the former instance, the law directing a selection of 
 the lands had not been fully complied with by the agent of the State, 
 the selection having been delayed, in the first place, by the transfer of 
 the land to Ohio before attended to, and afterwards, by the occurrence 
 of difficulties in regard to the boundary line between Ohio and Michi¬ 
 gan. In the legislation had upon this subject, there is believed to be 
 no difference. ‘ 
 
 There is no language employed in any of the acts of the Legislature 
 of Indiana, on this subject, which amounts to an estoppel. When Con¬ 
 gress made the grant, the lands were in market, and were every day 
 passing beyond the reach of the State, without the prospect of being 
 able to supply the defect with lands of equal value, nor was it then 
 known how such defect should be supplied. It hence became an ob¬ 
 ject of solicitude with the State to begin the selection early ; and, almost 
 without an examination of the route on her part, she adopted the survey 
 of the United States engineer, (Colonel Moore,) for the time being, and 
 as the basis of present operations. By this survey, the canal is located 
 on the north side of the Wabash river to Tij)pecanoe. But it was soon 
 thereafter found necessary to change the location to the south side of 
 the river, with a view to its extension; and it was accordingly so changed, 
 and, by the act of 1836, continued down the Wabash river to Terre 
 Haute, where it connects wdth the river by means of a lock. 
 
 The grant for the whole length of the canal having been made by the 
 United States to Indiana alone, Ohio, claiming title under Indiana, 
 would have been estopped by the act of the Legislature of Indiana of 1st 
 Fe})ruary, 1834, (above referred to,) if Indiana can be deemed to he 
 estopped by her act of January 23, 1829. Ohio also committed herself 
 to Stansbury’s survey to the same extent that she was committed by 
 Indiana.—(See the letter of (he Governor of Ohio to Commissioner of 
 General Land Office, of date of March 7, 1834, and rcsolutiofis ac¬ 
 companying, and the suhsequent corresjmndencc.) 
 
 But Ohio was not concluded, nor should Indiana be. The necessity 
 for this extension of the canal she has avouched by undertaking it at so 
 great a cost; and the United States, in their compact with Indiana, have 
 
12 
 
 Doc, No. 32. 
 
 provided for no other guarantee (nor do they want any other) of the 
 utility of the canal, than the character and honor of the State itself. 
 
 We cannot doubt but that you will concur, in the construction to be given 
 to this transaction, with us, and with your predecessor, as expressed in 
 his letter to the president of the board of public works of Ohio, of the 
 date of September 20, 1836. The act of Congress upon the subject, 
 passed in 1830, having been special, further legislation will be neces¬ 
 sary to enable the State to select lands elsewhere, in lieu c/f those along 
 the line of the canal, from Tippecanoe to Terre Haute, which have been 
 sold or otherwise disposed of by the United States. 
 
 Respectfully submitted, by 
 
 ALB. S. WHITE, 
 
 In behalf of the Delegation. 
 
 To the Hon. James Whitcomb, 
 
 Commissioner of the General Land Office. 
 
 No. 5. 
 
 Executive Department, 
 
 Indianapolis., November 12 , 1837. 
 
 Sir; Your long residence and the share you have had in her councils 
 make you so familiar with the interests and policy of this State, that I 
 need only allude to a few particulars to make you acquainted with the 
 obj-ect of this communication. 
 
 Soon after we entered into the Union as a State, the construction pf a 
 canal uniting the navigable waters of the Wabash with those of Lake 
 Erie was the favorite object of our Legislature. For the accomplishment 
 of that object, the first steps to be taken were to test its practicability ; 
 but, for the want of means and ol competent engineers, nothing was done 
 until assistance was obtained, under an appropriation for surveys, made 
 by Congress, at the outset of Mr. Adams’s administration. By the exami¬ 
 nations made in running the expeiimental line, commonly called “Stans- 
 bury’s line,” we ascertained that all the difficulties of the summit or mid¬ 
 dle ground could be overcome, which settled the question of practicability. 
 Our next effort w'as to procure the aid of the General Government, in the 
 shape of a grant of lands, but the capacity of the Wabash and of the Mi¬ 
 ami of the Lake for navigation w’as too little known to designate points 
 of intersection. The assistance sought was granted by the passage of the 
 act of the 2d March, 1827, but, for the w'ant of the information alluded to, no 
 points were made, and, therefore, the one half of five sections on each 
 side of the line, “/rom one end thereof to the other.,'*'^ w'as given to aid 
 the State in uniting the waters of the Wabash wdth those of Lake Erie, 
 at ^'‘navigable points. The second section of the act authorized the 
 officer of the State in charge of the work to designate the lands granted 
 by the first section so soon as the route should be located and agreed 
 upon by the State. Although the line run by Mr. Stansbury w-as made 
 to acquire information as to the practicability and cost of the work, 
 and not sufficiently accurate for a final location, it was deemed safe ; and, 
 passing entirely through the new lands from which the selections were to 
 
13 
 
 Doc, No. 32 
 
 be made, il was adopted by the Legislature, to enable us to avail our¬ 
 selves of the grant, to base our operations upon, without incurring the ex¬ 
 pense of a new survey, with the delay that would follow, to both this 
 and the General Government, in the sale of the lands belonging to each. 
 By that course the selections were at once commenced, and, so far as 
 made, have been reported to and approved by the General Land Office. 
 For the selection of the lands due to the eastern division of the line, pass¬ 
 ing through the territory of Ohio, the same line was adopted by our Le¬ 
 gislature, and, after the transfer of that part of the work to that State, the 
 selections were made by her agents. 
 
 Our active operations, as you know, commenced on the summit, and con¬ 
 tinued westward, pursuing the course of the VVabash. During the inter¬ 
 mediate period, examinations have been made by an engineer of the 
 United States, and by our own, to determine the capacity of the Wabash 
 for navigation ; and for the want of water in its channel, at its ordinary 
 stage, to allow a permanent commerce, we have found it best to continue 
 the work down the stream, in the language of the act, to a ‘‘ navigable 
 point,at Terre Haute. For like reasons, the authorities of Ohio, to ar¬ 
 rive at a navigable point, have extended the line below its first point of 
 intersection with the waters of Lake Erie. 
 
 The work, in its onward course, to meet an uninterrupted navigation, 
 has been located and placed under contract to Lafayette, and the pre¬ 
 liminary surveys are now complete to Terre Haute. And having appro¬ 
 priated the proceeds of the lands, as far as they have been set apart, we 
 now wish to avail ourselves of the remainder of the grant made by Con¬ 
 gress. The lands upon and near the route, as you are aware, and partic¬ 
 ularly below Carroll county, have been sold, and we must look to those 
 elsewhere for the satisfaction of our claim. With that view, I have to re¬ 
 quest that the unsold lands in the townships reserved on the waters of 
 Yellow and Tippecanoe rivers, recently exposed to sale at Laporte, and 
 the Indian reserves, not yet offered, on the waters of the Eel and Tip¬ 
 pecanoe rivers, may be suspended and reserved towards the satisfaction 
 of our claim. 
 
 I need hardly refer you to the compliance of your department with a 
 like request from this department, in which the Indian reserves in the 
 Bucyrus and another land district in Ohio were withdrawn from sale, to 
 await the selections due to that part of the work now transferred to Ohio. 
 
 Waiting for a reply, as early as your laborious duties, at the eve of the 
 meeting of Congress, may allow, I am, sir, most respectfully, your obedi¬ 
 ent servant, 
 
 N. NOBLE. 
 
 The Hon. James Whitcomb, 
 
 Commissioner of the General Land Office. 
 
 No. 6. 
 
 Washington, March 30, 1838. 
 
 Sir ; With this we have the honor to transmit a memorial from the 
 General Assembly of the State of Indiana, on the subject of the right of 
 that State to the extension of a grant of land to aid in the extension of the 
 
14 
 
 Doc. No. 32. 
 
 Wabash and Erie canal from the mouth of Tippecanoe river to Terre 
 Haute, and to request you to inform us of your opinion, and whether fur¬ 
 ther legislation on this subject is necessary to enable the State to select 
 and the Executive to confirm her in the title to the quantity of land 
 granted for that purpose by an act of Congress of 2d March, 1827, entitled 
 An act to grant a certain quantity of land to the State of Indiana, for the 
 purpose of aiding said State in opening a canal to connect the waters of 
 the Wabash with the waters of Lake Erie.” j 
 
 Your obedient servants, 
 
 JOHN TIPTON, 
 
 O. H. SMITH. 
 
 Hon. James Whitcomb, 
 
 . A joint resolution on the subject of extending the grants of land for the Wabash and Erie 
 
 canal. 
 
 Resolved by the General Assembly of the State of Indiana^ That our 
 Senators in Congress be instructed, and our Representatives requested, 
 to visit the proper department of the General Government on the subject 
 of the right of this State to an extension of the grant of land for the Wa¬ 
 bash and Erie canal, to aid in the construction of the same from the 
 mouth of Tippecanoe river to Terre Haute, and that they explain said 
 right, and urge that it may^be acknowledged without further delay. 
 
 Resolved^ That the said Senators and Representatives refer to the dia¬ 
 gram now on file in the General Land Office, on which the lands are des¬ 
 ignated, which it is desired may be withheld from sale for this purpose, 
 and that they adopt prompt measures for the passage of an act of Con¬ 
 gress authorizing the State to make the selections from said lands, should 
 the ultimate decision of the department be in favor of this State, and if 
 such an act be deemed necessary. 
 
 Resolved^ That the Governor forward to our Senators and Represent¬ 
 atives in Congress copies of these resolutions. 
 
 TH. J. EVANS, 
 Speaker of H. of Representatives. 
 AMB. MORGAN, 
 President of the Senate, pro tern. 
 
 Approved, February 17, 1838. 
 
 DAVID WALLACE. 
 
 No. 7. 
 
 Washington, March 17, 1838. 
 
 Sir : In our Several conversations respecting a further selection ot 
 land to aid in constructing the Wabash and Erie canal, “ to unite, at navi¬ 
 gable points, the waters of the Wabash with those of Lake Erie,” in ac¬ 
 cordance with the act of Congress approved March, 1827, I have un¬ 
 derstood you to say that there is no cause of delay, on the part of the 
 President, to authorize vacant lands to be selected from off the line of 
 the work, in lieu of those on its margin, sold by the United States, but 
 that occasioned by a supposed want of authority. If I be right in this 
 understanding, it is only to satisfy that legal power has been con- 
 
Doc. No. 32. 
 
 15 
 
 ferred, and heretofore exercised in similar cases, and the necessary addi¬ 
 tional selections now required will be immediately ordered. 
 
 Familiar as you are with the enactments of the law of 1827, above al¬ 
 luded to, I will onlj remark, at present, that a retrospective view of many 
 cases involving the same considerations, and unhesitatingly decided by 
 the President, should serve to demonstrate his unquestionable authority 
 in the case under review; and, to illustrate this point, 1 beg leave most 
 respectfully to referyou to some conclusive data in your own othce. During 
 the service of your predecessor. Judge Hayward, an official correspond¬ 
 ence with the commissioner of the Michigan road was published, by 
 order of the General Assembly of Indiana, giving the assent of the late 
 President to selections of land for that work, under like circumstances, 
 in every essential point of view; and I think some selections in lieu of 
 lands on the margin of this canal, reserved by law to Miami Indians, are 
 deemed valid and fully authorized. I lament I have not in my possession 
 here the correspondence 1 advert to ; but it is no doubt of record in your 
 office, and, if my recollection of its import and tenor be correct, 1 will 
 trouble you to examine and inform me. 
 
 Most respectfully, I am your obedient servant, 
 
 JNO. EWING. 
 
 James Whitcomb, Esq. 
 
 --- 4 
 
 No. 8. 
 
 House of Representatives, 
 
 March 30, 1338. 
 
 Sir : On the 17th instant I had the honor to address you in relation to 
 a selection of lands under the act of 1827, for the prosecution of the Wa¬ 
 bash and Erie-canal ; my recollection of your impression of the difficulty 
 to immediate action ; with a reference to some cases already decided un¬ 
 der like circumstances, or involving the same principles. I have receiv¬ 
 ed no answer to that letter ; and as it is a matter of deep interest to my 
 constituents and to my State, I beg your attention, as soon as convenience 
 will admit, to the subject-matter. 
 
 Very respectlully, your obedient servant, 
 
 JNO. EWING. 
 
 James Whitcomb, Esq. 
 
 No. 9. 
 
 t 
 
 General Land Office, 
 
 April 14, 1838. 
 
 Sir : In the examination of the various documents fded in relation to 
 the application for a further selection of land to aid in constructing the 
 Wabash and Erie canal, to unite, at navigable points, the waters of the 
 Wabash with those of Lake Erie, I find, on recurring to your communi¬ 
 cation of the 17th ult., that it appears you have understood me to say, in 
 “ our several conversations,” that “ there is no cause of delay on the 
 
16 
 
 Doc. No. 32. 
 
 part of the President to authorize vacant lands to be selected from off 
 the line of the work, in lieu of those on its margin sold by the United 
 States, but that occasioned by a supposed want of authority and you 
 refer to the selections, with the assent of the late President, made for the 
 Michigan road, and “ some selections in lieu of lands, on the margin of 
 this canal, reserved by law to Miami Indians,” to demonstrate the “ un¬ 
 questionable authority of the President in the case under review.” As 
 I had not had an interview with the President in relation to the subject, 
 I take the liberty respectfully to state that, in the conference 1 had the 
 honor to hold with you, I did not design to be understood as expressing 
 his views upon the subject under consideration, not being in possession 
 of the same. 
 
 In reference to the observations in your letter of the 17th ult., relative 
 to the Michigan road lands, and selections in lieu of lands on the margin 
 of the Wabash and Erie canal, 1 have the honor to inform you that, in 
 consideration of the importance of the matter, entertaining at the same 
 lime an apprehension that the lively interest which, as a citizen of Indi¬ 
 ana, I feel for her prosperity, might undesignedly affect the result to 
 which my mind might be brought on the question presented, I intend to 
 submit your letter, containing your remarks, with all the other papers on 
 the case, for the opinion of the Attorney General upon the points raised 
 touching the construction of the statute and the question generally. 
 
 I l#ive delayed giving the matter the direction contemplated, for the 
 purpose of obtaining the views of the delegation, which were submitted 
 in an interview I had with all the members, (two excepted,) on the 
 evening of the 10th inst. 
 
 I design, in the course of a few days, to give the subject the direction 
 indicated ; but, before doing so, I shall take the liberty of submitting to 
 the members of the Indiana delegation my proposed communication, so 
 as to enable them, in case I should not have incorporated therein the 
 views of the members, as made known by them orally and otherwise, to 
 suggest any emendations they may consider proper. 
 
 I should have replied earlier to your favors of the 17th and 30th ult., 
 but I expected ere this to make a definite communication to you on the 
 subject, which I hope to do at a very early period. 
 
 And in the mean time I remain, with great respect, your obedient 
 servant, 
 
 JAS. WHITCOMB, 
 
 Commissioner. 
 
 Kon. John Ewing, 
 
 House of Representatives. 
 
 No. 10. 
 
 Washington, April 16, 1838. 
 
 Sir : I received on yesterday your letter of 14th inst., and, in ac¬ 
 knowledging it, beg leave to remark that, after a promised decision of 
 the Wabash and Erie canal land case had been long deferred, a sense of 
 duty, with an anxious desire to avert all possible misunderstanding, (and 
 in consultation with one of my colleagues, who, in conversation upon the 
 
J7 
 
 Doc. ‘No. 32. 
 
 subject understood you substantially as I had,) prompted the note, near 
 a month ago, which you now animadvert upon. At the time that note 
 was'penned, the question was open ; and, on receiving your answer, it 
 was my intention to follow up the discussion as far as might be required. 
 I believed that to apply either proof, precedent, or reasoning, to any ex¬ 
 isting doubts or objections, their grounds should be first clearly under¬ 
 stood, otherwise oblique allegations, wrong iriferences, and unsatisfactory 
 denials, would be likely to interpose. With these feelings and views, 
 my note asked for a confirmation or correction of an expressed under¬ 
 standing which you now disclaim, not having intended to be understood 
 as expressing the views of the President upon the subject; upon this 
 point 1 take no issue, nor is it deemed material; the impression was no 
 doubt caused by an inference arising in my mind from the fact alleged 
 to me, as well as to my colleague, that the objection I adverted to was 
 the main one, and which 1 then stood ready to combat, and trusted to 
 be able to remove. Your opinion now, upon the law' and equity of the 
 case, is evidently fixed and matured. 1 could ino longer hope to make 
 any serviceable suggestion, more particularly as you have not communi¬ 
 cated what that opinion is. • ' 
 
 With all deference, I conceive that it is for the Secretary of the Treas¬ 
 ury or the President, if either of both dissent from your decision, to 
 submit your report to the Attorney General, and, most assuredly, no ob¬ 
 servations made in my note, except my allusion to decisions, in Various 
 w'ays, involving the same exercise of power under existing laws, and 
 which you seem to have overlooked, could in that event require or jus¬ 
 tify such reference ; at all events, such reference was not, nor is not, 
 deemed necessary by me at this’time. 
 
 1 shall only add, that from the first passage of the law to extend the 
 w'ork on the canal, my convictions were that the Governor of Indiana 
 should proceed to execute it, and have the lands selected in conformity 
 with such established rules as may be applicable to the case ; and that 
 nothing said or conceded by the Legislature at homej or any portion of 
 the delegation of the State in Congress, can foreclose or operate as an 
 estoppel to such after-action as the justice of the claim, and the deep in¬ 
 terest felt in the result of your decision, may seem to require. 
 
 If you give my former notes the direction you have indicated, please 
 allow this one to accompany them. 
 
 Very respectfully, your obedient servant, 
 
 ’ : JNO. EWING. 
 
 James Whitcomb, Esq., 
 
 Commissioner of the General Land Office. 
 
 - ’ . No. 11.:^ 
 
 General Land Office, 
 
 April 17, 1838. 
 
 Sir : I have the honor to acknowledge the receipt of your letter of 
 the 16th instant, referring to mine of the 14th instant, respecting the 
 Wabash and Erie canal land case. 
 
 Where any act is required by law to be done by the Commissioner 
 3 
 
18 
 
 I)o(*. No. 32. 
 
 of the General Land Office, under the direction of the President, the 
 uniform practice is for such subordinate to submit a statement of the 
 law and the facts touching the question, with a distinct recommendation 
 either favorable or adverse, for the final action of the Executive. 
 
 I make this remark for the purpose of showing, that as a preparatory 
 recommendation is required of the Commissioner, for which be is respon¬ 
 sible, it is altogether proper, and indeed requisite, for him to take the 
 opinion of the Attorney General, whenever the circumstances of the 
 case might render it advisable, rather than to hazard a decision, in the 
 expectation of its correction by a superior officer. 
 
 On a question involving so seriously the interests of the State of In- 
 di ana as that arising in the case referred to, it was only natural that I 
 should feel a deep solicitude as to the result of it; and my anxiety to be 
 placed in possession of all the arguments and opinions of the delegation, 
 before submitting the whole matter to the President, induced me, when 
 a request was made by a part of the delegation, during the late extra 
 session of Congress, for a personal conference with me at the General 
 Land Office, to enable them to submit their views in behalf of the claim, 
 promptly and cheerfully to accede to it, and a time was fixed, out of 
 congressional or official hours, for that purpose, when imperious engage¬ 
 ments, no doubt, prevented them from attending. Subsequently, I was fa¬ 
 vored with a written argument from one of the members, ‘‘ in behalf 
 of the delegation,” in favor of the claim of the State for an additional se¬ 
 lection of lands, concluding as follows : “ The act of Congress upon the 
 subject passed in 1830, having been special, yt/r/Zier legislation will 
 be necessary to enable the State to select lands elsewhere in lieu of 
 those along the line of the canal, from Tippecanoe to Terre Haute, which 
 have been sold or otherwise disposed of by the United States.” 
 
 The opinion thus expressed, if well founded, would doubtless have 
 left no ground for further action on the part either of the Commissioner 
 or of the Executive ; and although the opinion of one or more members 
 might not legally affect any vested rights of the State, yet, where such 
 existed, it might embarrass, as it certainly could not aid, the action of 
 the Commissioner. This, considered in connexion with the fact that 
 an opinion was subsequently expressed from another quarter, that the 
 proposed additional selections might be made under existing enactments, 
 induced me to request a further conference with all the Indiana dele¬ 
 gation on the subject, at this office, at an hour after the time of the usual 
 daily adjournment of Congress, which it was hoped would not conflict 
 with the public duties of the members or of the Commissioner. From a 
 pressure of legislative duties or other circumstances, no doubt beyond 
 their control, they failed to attend the desired conference at that time, 
 as w^ell as at a subsequent appointment. To effect the desired object, 1 
 called personally on seven of the delegation, and sent w^ord to the others 
 to meet me on the evening of the 9th instant, at the General Land Of¬ 
 fice ; seven of the delegation attended. The result of that conference, 
 in which their views were given touching the construction of difl’erent 
 parts of the act of Congress to wdiich their attention was called, as well 
 as the question generally, show^ed, as I understood, that some of the mem¬ 
 bers, at least, had found occasion, from the reciprocal suggestions made, 
 to modify their previous opinions; and particularly the member who 
 filed the written argument before referred to, and who came to the con- 
 
Doc. No. 32. 
 
 19 
 
 elusion that the additional selection could be made under existing laws, 
 and I am in daily expectation of receiving from him a further written 
 communication, corresponding with his present views. It will thus, I 
 flatter myself, be seen that no unnecessary delay has taken place in pre¬ 
 paring this matter for final action, and that it has solely been occa¬ 
 sioned by a strong desire that the interests of the State should be fully 
 and fairly presented, to enable me fully to avail myse.ll, in my report, of 
 all the a > w i Qin i ^aH’] ' c W( !fl » which could be urged in its behalf. It being the uni- 
 torm practice to refer all questions of importance (for the decision of which 
 no precedent clearly exists) to the Attorney General for his opinion, 
 and believing such a reference to be peculiarly proper in the present 
 case, in view of my being a citizen of Indiana, feeling a warm interest 
 in her prosperity, and mistrusting the natural bias of my mind from that 
 cause, I had determined at that time to make the earliest practicable 
 presentation of the question to thati||flil|^ as the highest law of 
 
 the Government, and I am only awaiting the additional promised com¬ 
 munication before alluded to, for that purpose. It will therefore be 
 seen that I have forborne the expression of any “ fixed and matured 
 opinion” ‘‘upon the law and equity of the case,” as you seem to appre¬ 
 hend ; and that, in any event, the mind of the Attorney General, to whom 
 the question will now be referred, is unbiased and open to the whole sub¬ 
 ject. I should be happy, therefore, to receive any additional suggestions 
 or views which your long experience and connexion with the subject 
 of the Wabash and Erie canal will enable you to make, and particularly 
 as touching the supposed “ same exercise of power under existing laws,” 
 in other cases, to which you allude. The opinion expressed at the 
 close of your letter, that from the first passage of the law to extend the 
 work on the canal, your “ convictions were that the Governor of In¬ 
 diana should proceed to execute it, and have the lands selected in con¬ 
 formity with such established rules as may be applicable to the case,” if 
 correct, would, of itself, remove any imputation of improper delay on 
 the part of this olfice, inasmuch as, according to that opinion, it would 
 be premature to have any action here until such selection should be 
 made and reported for recognition or confirmation. I have maturely 
 considered this opinion and your suggestion, that “it” (the reference to 
 the Attorney General) is not deemed necessary by “you at this time ;” 
 but I do not feel at liberty to withhold a reference in this case, for the 
 reason that a direct and formal application for final action has been 
 made, not only by the board of public works of Indiana, but also by a 
 joirjt resolution of the Legislature of that State, as communicated to me 
 by tbe Indiana Senators. These authorities I feel bound to respect, by 
 the eailiest attentioi^ to their communications consistent with proper de¬ 
 liberation. Besides, it is presumed that it can make little dift’erence 
 whether the opinion is taken at this time, or is deferred until after a se¬ 
 lection of land shall be made; except, indeed, that if such opinion 
 should be adverse, a speedy communication of it will obviate the neces¬ 
 sity of unnecessary delay, by affording an early opportunity for relief 
 from Congress. Any further communications, therefore, will be cheer¬ 
 fully received and referred to the Attorney General ; and, although he 
 has been, for some time past, in New York, I shall hope to obtain from 
 him an early opitiion. In the mean time, it is believed that, should that 
 
20 
 
 Doc. No. 32. 
 
 opinion be adverse, the State will sustain no injury by reason of this 
 precautionary delay, as the matter has some days since been laid before 
 Congress by the Senators from Indiana. 
 
 With great respect, sir, your obedient servant, 
 
 JAS. WHITCOMB, 
 
 Commissioner. 
 
 Hon. John Ewing, 
 
 House df Representatives. 
 
 No. 12. 
 
 Washington, April 23, 1838. 
 
 Sir: I should have instantly acknowledged your letter of the 17tb 
 in^^at, had it not been foi of other business. 
 
 underusing this and youWomer favors, I can find no expression of 
 your own views upon the distinct question at issue, in relation to the 
 land. Three different times I visited your oflGice upon this subject, 
 during the called session, and I thought I understood you on one of these 
 occasions to say that the matter should be examined and decided in 
 time to reach the then approaching session of the Legislature of Indiana. 
 Since my return to this session, I have conversed with you frequently 
 and freely upon the subject, and asked for a favorable and speedy de¬ 
 cision : finally, after having failed in personal interviews to understand 
 you, (as did one of my colleagues also,) and most anxious to have the 
 subject favorably disposed of, I adverted to it in a brief note, not 
 surely to prolong, by a time-consuming correspondence, your final action, 
 but solely to expedite it. Some w’eeks before I heard of your recent 
 desire for a conference, you had been, as stated, addressed in writing by 
 me, and I had no answer until you accompanied a verbal disclaimer of 
 any intention to be understood as I had understood you, with a notice 
 of that desire ; and, known as my opinions were to others of the delega¬ 
 tion and to yourself, my absence, at that conference, was of small conse¬ 
 quence. Surely, neither my absence on that occasion, nor any crude 
 opinion expressed to you in my note of the 14th instant, nor any opinion 
 not properly matured and acted upon by the proper authorities of the 
 State of Indiana, could have occasioned any delay since October last. 
 
 There has been nothing said, done, or admitted, by me or any of the 
 delegation known to me, to require or to justify one moment’s delay : 
 every consideration presented has been intended to draw forth your de¬ 
 cision. As regards the paper filed by my colleague, Mr. White, from 
 which you furnish a very extraordinary extract, I never have seen it; 
 of course, know nothing of its contents more than you have given; and I 
 never entertained the opinion conveyed in the quotation with which 
 you have favored me. I deem it of no avail, until furnished with your 
 views, to make vague suggestions; but, as you advert to the point, I 
 must again remark here, that delay will arise from your submitting the 
 case to the Attorney General; and I do respectfully conceive the Secre¬ 
 tary of the Treasury and the President, officers known to the people, 
 should, as in other cases, be left to agree, if they will, or to refer the 
 case, if they must, without a report to the highest legal adviser in the 
 first instance. I do not doubt that officer can take a professional view 
 
Doc. Ko. 32. 
 
 21 
 
 of the case, (the view of an able lawyer, not that of a statesman;) and as 
 he stands bound to the President, and unknown to the people, it seems 
 to me it would be only the usual and proper course of proceeding to let 
 the Executive act without any obscuration of technical constructions. 
 The questions properly involved in the case seem to me very clear; 
 and, in every view that I can fairly take of them, the State of Indiana is 
 entitled to the land upon legal principles, as well as equitable practice, 
 having, as I believe, justice, expediency, and precedent, to foreclose 
 objections. 
 
 I will only remark, in conclusion, that it is desired by the State and 
 by her representatives (as far as 1 am advised) now here, that your de¬ 
 cision may be delayed no longer; the State suffers by each day’s delay. 
 And I am this day advised, after inquiry, that the Senators of Indiana 
 have not laid the matter before Congress, as you suppose, no doubt, from 
 the misunderstanding of your informant#. The ‘‘precautionary ^^y” 
 has been long enough. ww 
 
 Very respectfully, your obedient servant, 
 
 JNO. EWING. 
 
 James Whitcomb, Esq. 
 
 No. 13. 
 
 General Land Office, 
 
 April 25, 1838. 
 
 Sir : I hasten to answer your letter of the 23d instant, as soon as the se¬ 
 vere pressure of the current public business has permitted, and have to ex¬ 
 press my deep regret that you should be of the opinion that there has 
 been unnecessary delay in arriving at a decision upon the Wabash and 
 Erie canal claim. Had a decision been made upon the subject, with¬ 
 out consulting the Indiana delegation in Congress, and had it been un- • 
 favorable to the interests of the State, I should have subjected myself 
 not only to the charge of precipitancy, but also of being wanting in the 
 respect due to her delegation, and which I really entertain for every 
 member of it. In inviting the delegation to a conference, I had indulged 
 the hope that a full, free, and candid interchange of opinions would have 
 conduced to so clear an understanding of the merits of the claim as to 
 have removed the shadow of a doubt on the points involved ; and, not¬ 
 withstanding the reason you assign for your absence, I cannot but still 
 regret that we had not the benefit of your experience and counsel on 
 an occasion when a matter so deeply interesting to Indiana was under 
 consideration. 
 
 At the time 1 had the honor to request your attendance at that confer¬ 
 ence, I stated that it was my intention to invite the views and opinions 
 of the delegation to the specific points then to be presented to them; 
 that a personal interview, surrounded, as we should be, by the docu¬ 
 mentary information afforded by the office, would better enable us to 
 ascertain those points on which a difference of opinion might arise, and 
 restrict the discussion to them alone, by discarding all questions on which 
 there would be a full coincidence of judgment. It was hoped, also, that 
 the delay incident to a formal correspondence would thus be prevented. 
 
22 
 
 Doc. No. 32, 
 
 Th is course, it was believed, would also prevent the danger of “ oblique 
 allegations, wrong inferences, and unsatisfactory denials,” which you in¬ 
 timate, in your letter to me of the 16th instant, w'ould be likely to result 
 from the want of those “grounds” being “first clearly understood.” I 
 understand you to object to the course proposed, on the ground that af¬ 
 ter separation we might differ in opinion or recollection as to the pre¬ 
 cise points on which we had agreed or disagreed, and to remove it I 
 hastened to assure you that any one of the delegation should be con¬ 
 sidered at liberty to be the sole expositor of the views which we had 
 entertained, by a recourse to subsequent written correspondence, in which 
 he might reject or modify them as he should think proper. 
 
 In reference to your impression, that I should have said in one of 
 your visits to this office during the special session, that the matter should 
 be “decided in time to reach the then approaching session of the Legis- 
 latrt^^f Indiana,” 1 have t^|^||mark^ that ever since the receipt of the 
 communication on this subject, from the president of the board of public 
 works, it has been my anxious desire to hasten a final decision as 
 speedily as would consist with the necessary deliberation ; and I think 
 that the impression on your mind was produced rather from this desire, 
 so strongly expressed on my part, than from any pledge that final action 
 should be had by the time specified, especially as the fulfilment of such 
 a pledge, if made, would have been in the absence of so full an expo¬ 
 sition of the arguments of the friends of the claim as was desired and 
 expected. It will be recollected that, in the several interviews with 
 you and others of the delegation during the special session, 1 expressed 
 an anxious desire to receive any views and arguments that could be 
 offeied by any of your number, to enable the proper authority to make 
 a final disposition of the question by the first Monday in December, in 
 order that Congress might afford a remedy during the present session, 
 should the decision be unfavorable to the claim. In confidence of the 
 early presentation of those views and arguments, I may therefore have 
 expressed the opinion, although, if I did, it has escaped my recollection. 
 
 But, in addition to this, it will be seen, in my letter to you of the 17th 
 instant, that, in the only written argument which 1 had the honor of re¬ 
 ceiving from any of the Indiana delegation on this subject, (until a late 
 period in the present session,) and which was a very able paper in behalf 
 of the equitable claim of the State, it was expressly conceded that fur¬ 
 ther legislation would be necessary to enable the State to select the 
 lands claimed. This opinion, advanced “in behalf of the delegation,” 
 rendered it expedient, in m 3 ' opinion, to postpone further action until 
 the commencement of the present session, in order that I might learn 
 whether that opinion, on mature reflection, would still be adhered to ; 
 and 1 the more readily adopted this course, under the conviction that 
 ample time would yet be afforded for an application to Congress, should 
 that step become necessary. It has ahead}" been seen that repeated 
 calls have been made by me during this session, for a further expo¬ 
 sition of the views of the delegation, or for a conference. The consult¬ 
 ation was at last accorded to me by seven of the members, but not until 
 the 9th instant. The reasons for my delay, since that time, have been 
 given in my letter to you of the 17th instant. It will, then, I flatter my¬ 
 self, be seen that final action has been deferred in this case, on my part, 
 
Doc. No. 32. 
 
 23 
 
 solely from a desire that the claims of the State should be fully repre¬ 
 sented before a final reference of the matter. 
 
 It is true, in several of the interviews which 1 had the honor to have 
 with you, a wish was expressed on your part, as well as by me, for an 
 early decision ; but I cannot charge my memory with any specific argu¬ 
 ments of yours, conducive to that result, until the receipt of your letter 
 of the 16th instant, after the conference was held. You thftn state, that 
 during the service of my predecessor, Judge Hayward, an official cor¬ 
 respondence with the commissioners of the Michigan road w as published, 
 by order of the General Assembly of Indiana, giving the assent of the 
 late President to selections of land for that work, under like circum¬ 
 stances, in every essential point of view ; and, in speaking of the canal, 
 
 you say that you “ think some selections of land for that work on the 
 
 margin of the canal, reserved by law’ to Miami Indians, are deemed 
 
 valid and fully authorized.” In reply, I^would observe that it^d^es 
 
 not appear, by the records and files of^his office, that the opinion or 
 action of the President wasf§|ftpi asked or given in relation to any se-^ 
 lections for this road, or that any such selections are recognised by Judge 
 Hayward, except the first selection of sections “ contiguous” to it, and 
 designated in the second section of the Pottavvatamie treaty of October 
 11th, 1836. The additional selection, made by the State authorities, 
 was not confirmed by this office, as you seem to think, but was rejected 
 by John M. Moore, the acting Commissioner, as will be seen in his letter 
 of the 11th October, 1830, to the commissioners of the road. Congress, 
 how'ever, subsequently confirmed it, and authorized a further selection by 
 the act of 2d March, 1831. And as to the additional selection for the Wa¬ 
 bash and Erie canal to which you refer, I w ould only remark that it was 
 made from the alternate sections reserved to the United States on the 
 line of the canal by the original grant, and not from other 'public lands^ 
 and was expressly authorized by the act of Congress of 29th May, 
 1830, as being in lieu of so much previously “sold by the United States, 
 permanently reserved by treaty to individuals, and located by individual 
 grants.” 
 
 Although the additional selection of lands, for the extension of the ca¬ 
 nal, by Ohio, Irom the foot of the rapids of the Miami river to the Miami 
 bay, is not adverted to by you, yet it may be proper to say that that se¬ 
 lection w'as made subsequent to the passage of the act of Congress of 30th 
 June, 1834, wffiich authorized it to be made from the “ alternate sections,” 
 
 “ which would belong to the United States,” or “ from the lands recently 
 acquired by purchase from the Indians, or from other lands in the neigh¬ 
 borhood, near the line of said canal,” as might be thought proper; and 
 that my predecessor. Governor Brown, in his letter to the Governor of 
 Ohio of 7th October, 1836, states as follows: “ But, according to my 
 views, it would be contrary to the true intent and meaning of the pro¬ 
 visions of the act [of June 30, 1834] to make selections, ivithout the 
 limits of five miles on each side of the canal, or below the termination 
 and the terminations of the parallels on each side thereof, except in the 
 rndian reservations heretofore mentioned, provided land enough be 
 found within the grant and reserves.” 
 
 In relation to your remark, in your letter of the 16th instant, that 
 “ many [other] cases involving the same considerations, and unhesi¬ 
 tatingly decided by the President, and which would serve to demonstrate 
 
24 
 
 Doc. No. 32. 
 
 his unquestionable authority in the case under review,” I would ob¬ 
 serve that no case of that character is found on the files or among the 
 records of this office, nor am I apprized of any such elsewhere; and il 
 anv are within your knowledge, 1 should be happy for you to direct my 
 attention to them. It is needless to remark of what importance such 
 nrecedents would be towards the settlement of the present claim ; and 
 involving, as it does, great interests of Indiana, I cannot but hope that 
 you will give a favorable consideration to this request. Every facility 
 which you may desire, by an inspection of the records and files of ‘his of¬ 
 fice by" personal conferences or otherwise, will be promptly and cheer¬ 
 fully afforded, and at such an hour of the day or night as may best suit 
 
 In iustification of the propriety of my intended reference of this case 
 for the opinion of the Attorney General, I will add that, in the prepara- 
 ratton»of the report from tlw» office ofl 4 th May 1835 containing the 
 “ facts on the public files and*records, connected with the northern 
 boundary line between the State of Ohid«K*»the Territory of Michigan, 
 Judge Hayward, the Commissioner, forbore the expression of any optmore 
 on the merits of the controversy, having been absolved thereirom i 
 understood, at his own request, on account of his being a citizen of that 
 State which was interested in the settlement of that line. 
 
 In objecting to the proposed reference, you remark that it would e 
 the ‘‘ploper course of proceeding to let the Executive act 
 obscuration of technical obstructions,” and that you “ 
 the Attorney General “can take a professional view of the case, the 
 view of an^able lawyer, not that of a statesman.’ I beg leave to ob¬ 
 serve what a moment’s reflection will doubtless satisfy you is true, that 
 the Attorney General is an officer known to the law, and known to the 
 people, as rvell as the Secretary of the Treasury and that his duttes are 
 fo advise the Executive, when required, on all cases arising in the 
 execution of the laws. I am unwilling so to construe your remarks (un¬ 
 less confirmed by you) as expressive of your opinion that a statesman, 
 fauLlly execfiting the laws, would be justified in giving them a 
 broader or narrower operation than an able lawyer would say, under his 
 oath ol office, was intended by the legislative department. With a 1 
 deference, it seems to me that such a principle wou d authoiize execu¬ 
 tive encroachments on the constitutional province ot Congress. t ap¬ 
 pears to me, therefore, that your apprehensions 
 
 ence of the question to the Attorney Genera are not well grounded, 
 and that to pursue the course you suggest would rather retard than fa- 
 
 "'irroLtslotl regret to learn.froni you ‘hat I labored under a .ids- 
 take f arising from a want of precision in the repoi t of the senate s p 
 ceedings o?^the 10th instant, as contained in the National Intelligencer 
 Tthe nth instant) in supposing that the claim had already been laid 
 
 before Congress. , f 
 
 With great respect, your obedient savant, 
 
 Commissioner. 
 
 Hon. John Ewing, 
 
 House of Representatives. 
 
Doc. No. 32. 
 
 25 
 
 No. 14. 
 
 My whole object, in the remarks I am about to submit, is to give my 
 view of the practical meaning of certain expressions and phrases used 
 in the act of 1827, granting a quantity of land to the State of Indiana, 
 when taken in connexion with other parts of the same act. 
 
 The terms of the act make it very clear that Congress intended to 
 grant, and did actually grant, to Indiana, a quantity of land for the pur¬ 
 pose thereby expressed ; but how much was intended to be granted, and 
 where situate, are to be inferred from the terms employed in the grant : 
 
 ' “ A quantity equal (in quantity I read it) to one half of five sections 
 
 in width, on each side of the canal, from one end thereof to the other, 
 reserving to the United States every alternate section within said 
 ^ bounds.’’ 
 
 1 cannot but consider the grant to the State as of a definite quantity, 
 measured and designated in the grant'as the one half in quantity of five 
 sections, on each side of the canal, its whole length; that those descrip¬ 
 tive terms are used to designate the quantity granted, and not to circum¬ 
 scribe the bounds of the grant, or to designate its location as within lines 
 by which the quantity granted is to be measured, unless the true quantity 
 granted may be contained within said bounds without invading the re¬ 
 served sections to the United States. 
 
 The words “ from one end to the other” are used, and have reference to 
 the sections reserved to the United States within the bounds, for the ob¬ 
 vious reason, that Congress intended that the United States, in part con¬ 
 sideration of the grant, should avail itself of the enhanced value which 
 would be given to the reserved sections along the canal and within the 
 bounds. 
 
 There being a deficiency within the bounds to fill up the grant to the 
 State, I am clearly of opinion that the State is entitled to have that defi¬ 
 ciency made up ; and the United States having retained the power of con¬ 
 veying into full effect all the rights reserved by it in the alternate sec¬ 
 tions, and thereby left the State to its own method of possessing and 
 disposing of the residue, in satisfaction of that much of the grant to the 
 State, and there still remaining a quantity of land absolutely granted to 
 the State, out of which the United States has the selection of no alternate 
 sections, it remains for the Commissioner of the General Land Office to 
 negotiate with the State for the residue of the grant not executed. 
 
 The unexecuted part of the grant being general as to location, but spe¬ 
 cific as to quantity, it strikes me it amounts to a carte blanche to the State 
 to locate the same where it thinks proper, with the consent of the Com¬ 
 missioner of the General Land Office, who is to guard the interest of the 
 United States in such a cas’e. 
 
 ’ Very respectfully, 
 
 JAMES RARIDEN. 
 
 Hon. James Whitcomb. 
 
 In this paper I have contented myself with setting down the conclu¬ 
 sions of my mind, without the reasons which led me to such conclusions. 
 
 4 
 
26 
 
 Doc. No. 32. 
 
 No. 15. 
 
 VVashingtoiV, April 28, 1838. 
 
 Sir: In my written statement, of the date of 18tli October ultimo, on 
 the subject of the Wabash and Erie canal lands, not having adverted, by 
 way of argument, to that branch of the subject, it w^s, without reflec¬ 
 tion, assumed by me that, although the State of Indiana derived, under 
 the act of Congress of March 2, 1827, a vested right to lands, propor¬ 
 tioned in quantity to the length of the canal, yet that further legislation 
 would be necessary to enable you to select lands elsewhere, in lieu of 
 those along the line of the canal, which at the date of the grant had been 
 sold or otherwise disposed of by the United States, or which, being In¬ 
 dian lands, could not pass, by grant, from the United States. 
 
 This supposition was entertained from a hasty reference to the act of 
 29th May, 1830, “to vest in the State of Indiana certain lands within 
 the limits of the canal grant,” without sufliciently attending to the sub¬ 
 ject upon which that act was intended to operate, or to the powers con¬ 
 ferred upon you by the act of March 2, 1827. 
 
 Having, as you ai\e aware, from our subsequent personal confeiences 
 upon that matter, had occasion to modify, or rather to change, that opin¬ 
 ion, I beg leave now to submit to you, in writing, a brief comment upon 
 what I conceive to be the spirit a»d true intent of the act of 2d March, 
 1827, touching the point in hand. The view which I shall take of it is 
 necessary to constitute it a perfect and complete act of legislation, and to 
 redeem it from the consequence of having defeated, by the restrictive¬ 
 ness and inaptness of its own terms, nearly half the purposes which it was 
 intended to accomplish. If doubtful, it should receive such a construc¬ 
 tion, keeping the subject-matter in view, as to make it effective for the 
 liberal objects contemplated in its passage ; and in aid of such objects, 
 (which cannot, consistently with the welfare of Indiana or the honor of 
 this Government, be delayed or embarrassed,) every ambiguity should be 
 taken, most strongly, against the grantor. 
 
 In general terms, the view which I take of the law is, that although it 
 was the primary intention of the act to grant the alternate contiguous five 
 sections in width, on each side of the canal, to the State, nothing in the 
 act will prevent the selection of an equal quantity elsewhere, in lieu of 
 any deficit which might be found to exist in consequence of former sales, 
 Indian reserves, or other causes. At the passage of the act, large quan¬ 
 tities of the lan(l along the line of this canal had been sold by the United 
 States, which fact was well known to Congress. Other large quantities 
 had been reserved to Indians in previous treaties; and the canal for many 
 miles shifted the borders of the Great Miami reservation, then Indian 
 country. It is hardly presumable, that if the identical lands along the line 
 of the canal alone were meant to be conveyed, that no provision woi^ld 
 have been made for so large a defalcation in the amount of the grant. 
 The reservation of the alternate sections to the United States does not 
 weaken this argument; for as to that portion of the lands contiguous to 
 the canal, their value was expected to be greatly enhanced ; and, so far 
 as selections there were concerned, it was pr.udent in the United States 
 to reserve this interest to themselves. But as to lands lying further from 
 the canal, the motive of increased value might not be strong enough to 
 
Doc. No. 32. 27 
 
 justify any qualification of the grant in the form of a reservation to the 
 United States, 
 
 The phraseology of the act justifies this construction—“that theie be, 
 and hereby is, granted, &c., a quantity of land equal to,” &c. It is a 
 waste of words to say that a thing is equal to itself. 'Phal is certain which 
 can be rendered certain. At the date of the grant, the length of the ca¬ 
 nal was not known ; its points of coinniencement and termination weie 
 by no means ascertained. A\[ this was to be left to the State. It was, 
 therefore, impracticable to grant any given numerical quantity of acres. 
 It is true that a form of expression like this might have been used : “ so 
 many act es are granted for each mile of canal.” But if the construction 
 put upon the act by your predecessor, as to the actual quantity of land 
 which passed under it, be correct, the State would have received much 
 more land if the conveyance had been in that form than she now does. 
 She would then have got five sections for each mile of canal, measuring 
 it by its serpentine course ; whereas, by the act as it passed, and as con¬ 
 strued by the Department, she only receives a quantity equal to the one 
 half of a parallelogram of ten sections in wudth, the length of which is a 
 right line drawn from one extreme end of the canal to the other. If this 
 view be correct, the words used in the act, “ from one end thereof to the 
 other,” are necessarily employed to define the quantity, and not to limit 
 the place where the Commissioner should make his selection.. The jux¬ 
 taposition of those words makes nothing against this construction. Placed 
 where they are, they qualify the whole sentence, and the sense is the 
 same as though those words were so transposed as to come in immediate¬ 
 ly after the words “ on each side of said canal.” That this was their in¬ 
 tention is evident from the analogy of subsequent legislation in a similar 
 case.—See the act of 24th March, 1828, granting land to Ohio for the 
 Dayton arid Miami canal, (page 113, acts 1st session, 20th Congress,) 
 where equivalent words are used in the order I have last assumed. 
 
 A construction of the act different from the one 1 contend for would 
 make “ sections” synonymous with “ miles.” Give to it this meaning, 
 and this inconvenience (certainly not contemplated) results: that a line 
 drawn parallel with the canal, five miles from it on each side, would cut 
 the sections into fractions, by lines different in their course from the con¬ 
 gressional or public surveys, derange the ancient landmarks, and require 
 minute and expensive resurveys to ascertain*whcre the line would fall, 
 and the residuary quantities in the sections through which it should pass. 
 If, however , it be contended that the alternate sections contiguous to the 
 canut^ five sections in width on each side of the canal, shall be selected 
 by the lines of the 'public surveys^ 1 answer that it will make, as the fact 
 has been, the outer boundary of the grant angular and cragged, and por¬ 
 tions of it will be more than five miles fr om the canal. Ifthc land grant¬ 
 ed is not the identical alternate five sections lying within lines parallel 
 with the canal, and five miles from it, what standard is there in the act 
 • to r egulate the discretion of the Commissioner ^ Going more than five 
 miles from the canal, why shall he be bound, or why at liberty to select 
 a lot or section contiguoiis to one already selected within the given dis¬ 
 tance, any more than one a mile or five miles removed.^ x\gain : if the 
 identical alternate five sections in width along the canal were alone in- 
 terrded to be conveyed, shall not the State be confined to the sections 
 that arc found ther e, whether they be fractional or regular, gaining where 
 
28 
 
 Doc. No. 32. 
 
 they are larger than 640 acres, and losing where they are less } This 
 seems to result upon the hypothesis which I am combating. Yet a dif¬ 
 ferent rule was adopted by your predecessor. He assumed that each sec¬ 
 tion was precisely 640 acres ; and, to determine the quantity, ran lines 
 parallel with the canal, and five miles distant, starting from points due 
 north and south of the canal, which will give precisely the same quantity 
 of land, no matter how crooked the canal, as though the canal ran on a 
 right line from one of its extremes to the other. This was very properly 
 done to ascertain the number of acres in the grant; and every word in 
 that part of the statute which I am considering is necessarily employed 
 to determine this mode of admeasurement of quantity, and not at all re- 
 ferrible to the exercise of that discretion in the Commissioner in making 
 the selections which the statute has conferred. 
 
 It is just as arbitrary a construction of the statute, ar^ just as great a 
 departure from its letter, for the Commissioner, following the lines of the 
 public surveys, to go one rod beyond the belt of five miles, as to allow 
 the meaning which 1 give to the statute. If it was impossible to make the 
 selections strictly within this belt, (as the Legislature must have known 
 it was,) and if it was intended, therefore, to select a quantity correspond¬ 
 ing to the defect contiguous to the belt, why did not the Legislature use 
 language which should clearly convey that idea, as in various similar 
 instances they have done } Upon the construction w’hich I oppose, it is 
 impossible literally to comply with the act ; and if further legislation be 
 necessary to authorize you to select beyond the five-mile strip to supply . 
 a defalcation arising from one cause, to wit, the previous sale of the 
 lands by the United States, it seems to me to be equally necessary where 
 the deficit arises from the non-coincidence of the supposed line with the 
 lines of the public surveys. There is nothing latitudinarian in the con¬ 
 struction which I contend for. The true spirit of the act undoubtedly 
 grants the half of the lands within the ten-mile belt, as far as available, 
 and leaves the residue to be selected, as those alternate sections were, 
 by the Commissioner of the Land Office, under the direction of the Pres¬ 
 ident, who are the most appropriate and responsible agents of the grantor, 
 in that behalf, out of any suitable lands belonging to the United States, 
 and not expressly reserved in the act of cession. It is to be presumed 
 that the interests of the Government will be protected by its own high 
 functionaries, and that th^y will not abuse their discretion. A subse¬ 
 quent law^ of Congress gave to the Governor of Ohio the whole range of 
 that State, to make large selections for another purpose. 
 
 This brings me to a consideration of the answer which may possibly be 
 given to my argument, from the fact that a law, to which reference has 
 been made herein, was subsequently passed by Congress, vesting in the 
 State of Indiana title to a given number of acres, in lieu of lands which 
 had been sold or otherwise disposed of by the United States along the 
 line of canal within the State of Indiana, then located.—(Seepage 117, 
 acts 1st session, 21st Congress.) 
 
 The necessity for that act is not admitted, except for the two things 
 which it accomplishes, to wit: 1st’. It allows the selections to be made 
 
 by the canal commissioners of Indiana, instead of the Commissioner of 
 the Land Office ; and, 2d. It allows selections to be made from the 
 very sections reserved to the United States by the act of March 2, • 
 1827, which of course could not be done without an act of Congress. It 
 
Doc. No. 32. 
 
 29 
 
 is true that the act of 30th June, 1834, (page 93, acts 1st session, 23d Con¬ 
 gress,) to make up the defect of lands for that part of the canal lying in 
 Ohio, authorizes the Ohio authorities “ to select an equal quantity from 
 the alternate sections, which would otherwise belong to the United States 
 in the division under the act of March 2, 1827, or from the lands recently 
 acquired by purchase from the Indians, or from other lands in the neigh¬ 
 borhood^ near the line of said canal^ as they shall think proper.” To 
 which it may be observed, as before, that a different agent is authorized 
 to make the selections, from the one named in the act of 1827 ; that it 
 allows the United States’ reserved sections to be taken ; that, as to the 
 lands recently acquired by purchase from the Indians,” it might have 
 been doubted whether the act of 1827 would pass, by relation, the title to 
 lands subsequently acquired by the United States, and, therefore, this 
 provision might have become necessary. This conjecture is strength¬ 
 ened, if (as I believe) the lands last referred to did lie within the ten- 
 mile strip. The last clause, giving the authority to select ‘‘from other 
 lands in the neighborhood,” although that right may previously have 
 existed in favor of the Commissioner of the Land Office^ may very well 
 have been introduced, ex ahundanti cauield^ to prevent the conclusion of 
 an existing right by the expression of a new one, or as presenting at one 
 view all the alternative choices given to the State, whether by that or a 
 forri5er act. 
 
 The second section of the act of 2d March, 1827, cannot be deemed to 
 abridge the discretion given in the first section to the Commissioner of the 
 Land Office in the selection of the lands. It is tantamount to a direction 
 to the Governor to report to the Secretary of the Treasury the route, lo¬ 
 cation, and length of the canal, when located ; and, instead of superseding 
 any duty of the Commissioner of the Land Office, forms the basis upon 
 which he is to proceed to the performance of the duties enjoined upon 
 him bv the act. 
 
 With great respect, your obedient servant, 
 
 ALBT. S. WHITE. 
 
 Hon. James VVhitcomb, 
 
 Commissioner of the Land Office. 
 
 No. 16. 
 
 General Land Office, 
 
 July 26, 1838. 
 
 Sir: By the act of Congress approved 2d March, 1827, (Land Laws, 
 page 933,) entitled “An act to grant a certain quantity of land to the 
 State of Indiana, for the purpose of aiding said State in opening a canal 
 to connect the waters of the Wabash river w ith those of Lake Erie,” 
 there is granted to the State of Indiana, for the purpose stated in the title 
 of the act, “ a quantity of land equal to one half of five sections in width 
 on'each side of said canal, and reserving each alternate section to the 
 United States, to be selected by the Commissioner of the Land Office, 
 under the direction of the President of the United States, from one end 
 thereof to the other,” &c. By the 2d section of the act it is declared, 
 “ that so soon as the route of the said canal shall be located and agreed on 
 
30 
 
 Doc. No. 32. 
 
 by the said State, it shall be the duty of the Governor thereof, or such 
 other person or persons as may have been or shall hereafter be autho¬ 
 rized to superintend the construction of said canal, to examine and ascer¬ 
 tain the particular lands to which the said State will be entitled under 
 the provisions of this act, and report the same to the Secretary of the 
 Treasury of the United States.’^ By the act of the 29th May, 1830, 
 (Land Laws, vol. 2, page 267,) entitled “An act to vest in the State ot 
 Indiana certain lands within the limits of the canal grant,” ther e is vest¬ 
 ed in the State the quantity of “ 29,528.78 acres of the public lands, to be 
 selected by the canal commissioners of said State, from the alternate 
 sections reserved to the United States in the division” made under the 
 act of 1827, which w as declared to be “ in lieu of the aforesaid quantity 
 heretofore sold by the United States, permanently reserved by treaty to 
 individuals, and located by individual grants before the division aforesaid, 
 and which would otherwise have become the property of said State, in 
 virtue of the act above referred to,” &c. 
 
 From the enclosed copy of the correspondence, marked A, betw’een 
 this oflfice and the president of the board of canal commissioners, it wdll be 
 seen (page 21) that,in carrying into effect the act of the 2d March,J827, 
 there were filed in this office, in pursuance of the preliminary requisition 
 of the 2d section of the act, the plats and field notes of connexion w ith the 
 public sill veys, of the route of the canal, from its western termination at or 
 near the mouth of Tippecanoe river, to the western boundaiy of the Stale 
 of Ohio. These constituted the basis of the subsequent action of this 
 office relative to the said grant. 
 
 The particular tracts to wdiich the State became entitled wdthin its 
 limits were ascei tained upon principles previously agreed upon betw'cen 
 the canal commissioners and this office, (see pages 21 and 25 of corre¬ 
 spondence, marked A.) Duplicate lists of those lands W'ere formally ap¬ 
 proved by the President on the 5th January, 1830, and one of them was 
 transmitted to the coinmissioneis, and the other retained on the files of 
 this office. 
 
 Those lists, with an original list dated the 16th November, 1830, (the 
 latter having been subsequently filed by the commissioners of selections 
 under the supplementary act of 29th May, 1830,) comprise all the selec¬ 
 tions made under the aforesaid acts of Congress bv virtue of the canal 
 
 t O V 
 
 grant. 
 
 In connexion with the subject, 1 also herewith enclose papers ol the 
 following description, viz : 
 
 1st. A report, dated December 19th, 1835, ot the commissioners of the 
 Wabash and Erie canal. 
 
 2d. A communication, dated August 15th, 1837, jrom D. H. Maxwell, 
 president of the board of public works of Indiana. 
 
 3d. A copy of a letter, dated 6th September, 1837, from this office to 
 D. Maxwell. 
 
 4th. D. Maxwell’s reply, of the 27th of the same month. 
 
 5th. Argument, dated October 18th, 1837, by the Hon. A. S. White, 
 of Indiana. 
 
 6th. Letter dated 12lh November, 1837, from the Governor of Indi¬ 
 ana. 
 
 7th. Lettei of the 17lh March, 1838, from the Hon. John Living, of 
 Indiana. 
 
Doc. No. 32. 31 
 
 8th. Letter from same, dated 30th of the same month, and my reply to 
 the two last mentioned. 
 
 9th. Communication of the same date from the Hon. John Tipton and 
 the Hon. O. H. Smith, Senators from Indiana, enclosing a joint resolu¬ 
 tion of the General Assembly. 
 
 10th. Letters of the 16th and 23d of April, 1838, from the Hon. John 
 Ewing, and my answer thereto. 
 
 11th. Further argument, dated 28th Apiil, 1838, of the Hon. A. S. 
 White. 
 
 12th. The record of the Wabash and Erie canal grant, in Ohio. 
 
 I deem it proper to state, in reference to the extension of the canal, in 
 Ohio, from the foot of the rapids to the Maumee bay, which has been 
 referred to as a precedent for the subsequent extension in Indiana, that 
 by an act of the Legislature of Indiana, approved 23d January, 1829, 
 (see A, page 5,) the route from the mouth of the Tippecanoe river to 
 the Ohio line, as surveyed by H. Stansbury, United States engineer, 
 was adopted “ for the time being;” and by the 11th section of an act of 
 the Legislature of that State, (see Wabash and Erie canal record, page 
 11,) approved 1st February, 1834, the line in Ohio, surveyed by Mr. 
 Stansbury, from the Ohio line to the foot of the rapids of the Maumee 
 river, was also adopted ‘‘ for the time being.” A joint resolution of the 
 General Assembly of Indiana, approved February 1st, 1836, conveyed 
 and relinquished to the State of Ohio ail the right and interests of the 
 State of Indiana to any land within the limits of Ohio, to which Indiana 
 would be entitled under the act of Congress approved 2d March, 1827, 
 which was met by a preamble and resolution of the Legislature of Ohio, 
 approved 24th February, 1834, (see Wabash and Erie canal record, 
 page 8,) accepting the relinquishment and conveyance made by Indiana ; 
 and, also, by a further act approved 3d of March, 1834, (see Wabash 
 and Erie canal lecord, page 6,) the first section of w'hich, after referring 
 to the resolution of Indiana, provides that, “ when the said lands shall be 
 selected, the commissioners (canal commissioners of Ohio) shall proceed 
 to locate and establish the line of said Wabash and Erie canal, from the 
 east line of the State of Indiana to some suitable point for the termina¬ 
 tion of the same below the rapids of the Miami river of the Lake.” In a 
 letter dated 22d April, 1834, (Wabash and Erie record, page 10,) ad¬ 
 dressed to this office by R. Lucas, then Governor of Ohio, transmitting 
 certified copies of the Ohio act and resolution, he refers to the 11th sec¬ 
 tion of the act of Indiana of the 1st of February, 1834, establishing the 
 line of the canal “ for the time being” as surveyed, marked, and platted, 
 by H. Stansbury, United States engineer, and states that this line will 
 be recognised by Ohio. A letter from the Governor, dated 11th June, 
 1834, (Wabash and Erie canal record, page 12,) transmitting a letter of 
 the 6th of the same month, (see record, page 13,) from the selecting 
 commissioners, accompanied with plats .showing the connexions of the 
 line with the public surveys from “ the Indiana State line to the foot of 
 the rapidsf was received. The act of Congress confirming the acts and 
 resolutions of Indiana and Ohio, whereby the grant was transferred, and 
 requiring the action of this office in furnishing a map, &c., to enable the 
 State to make her selections, was passed 30th June, 1834, from which 
 time there does not appear from the records or files of this office to have 
 been any action in the matter, either by this office or on the part of the 
 
3-2 
 
 Doc. No. 32. 
 
 State of Ohio, until the act of the Legislature of Ohio, approved 4th 
 March, 1836, (see Wabash and Erie record, page 15,) entitled “ An act 
 to organize a board of public works,” which board, by virtue of the pow¬ 
 ers vested in them by that act, on the 8th of April, 1836, (see record, 
 page 17,) passed a resolution, by which the line of the canal it was agreed 
 should be located and established as follows : ‘‘ Beginning at the line 
 between Ohio and Indiana; thence, following the line known as the 
 Stansbury line, to the foot of the rapids of the Maumee river; thence, 
 with the northern bank of said river, to the Maumee bay which location 
 was afterwards acted upon as authorizing the extent of the selections for 
 the part of the canal in Ohio ; and, accordingly, with my predecessor’s 
 letters of the 7th and 31st of October, 1836, (see record, pages 32 and 
 65,) the maps and lists showing the alternate sections of the United 
 States, and lands sold or otherwise appropriated, were, in accordance 
 with the provisions of the 4th section of the act of 30th June, 1834, transmit¬ 
 ted to the Governor of Ohio, since which the State has returned her lists 
 of the selections to this office. 
 
 On the part of the State of Indiana, the right, under the act of 2d 
 March, 1827, is claimed to extend the canal from its former termination 
 at the mouth of Tippecanoe river, to connect with the Wabash river at 
 Terre Haute, as, also, an additional selection of land for the proposed 
 extension. 
 
 It is contended that the termination of the canal at Tippecanoe was 
 only “ for the time being,” and that, by virtue of the grant in the 1st sec¬ 
 tion of the act, the provision in the 2d section of it, and the principle es¬ 
 tablished in the case of Ohio, when that State claimed and exercised the 
 right to extend that part of the canal within her limits from its first ter¬ 
 mination, as surveyed by the United States engineer, at the foot of the 
 Maumee rapids to the Maumee bay, Indiana has an equal right to ex¬ 
 tend the Wabash and Erie canal to Terre Haute, at the other extremity. 
 Further, as will be shown more fully by the accompanying written argu¬ 
 ments, that the State was not estopped in this claim by any former acts ; 
 that the extension could legally have been made in 1829 to Terre Haute, 
 instead of the termination then made at Tippecanoe ; and that what they 
 could have rightfully done then, she could do in 1836. 
 
 It is also contended, on the part of the State, that the grant of a 
 “ quantity of land equal to one half of five sections in w idth on each side 
 of said canal,” in the words of the act of 2d of March, 1827, has refer¬ 
 ence to the quantity of the lands granted, and not to their location ; or, 
 in other words, that it is a grant not of “ one half of five sections in 
 width on each side of the canal,” but of a “ quantity equal to” that half, 
 and which might be selected elsewhere ; that the word “ equaV'* implies 
 comparison, necessarily indicating more than one object; that had the 
 intention been to limit the grant to the contiguous lands, as has been con¬ 
 tended, the act would have read as granting ‘‘ one half of the land wdthin 
 five miles on each side of said canal, in alternate sections, as nearly as 
 practicable according to legal subdivisions. It is proper to state that, at 
 the time of the canal grant, portions of the public lands had been sold or 
 otherwise disposed of on the probable line of the canal, and where it 
 was afterwards located ; and it is insisted that this w^as the reason why 
 the phraseology of the act, bearing the construction contended for, was 
 adopted, it being impossible, otherwise, unless the United States owned 
 
Doc. No. 3*2. 33 
 
 all the land within five miles on each side of the canal, to carry the act 
 literally into execution. 
 
 It is further contended, that the “ selection by the Commissioner, 
 under the direction of the President, from one end thereof [the canal] to 
 the other,” spoken of in that act, refers not to the lands granted to the 
 State, but to the words, “ and reserving each alternate section to the 
 United States,” which is the last antecedent; and that, therefore, the 
 following clause, “ from one end thereof to the other,” relates solely to 
 those reserved alternate sections which Congress intended should be 
 reserved wdthin the five miles on each side of the canal, for the purpose 
 of being enhanced in value more than twofold by that improvement, 
 and thereby obviate an objection against the grant, that it w’ould be in 
 derogation of the original act of cession of the public domain from Vir¬ 
 ginia, by diminishing its proceeds, intended by that cession for a differ¬ 
 ent object. 
 
 It is not deemed necessary to allude more in detail to the arguments 
 relative to this claim, as these are fully presented in the accompanying 
 papers, further than to refer to the enclosed memorandum, marked A A, 
 as containing the conclusions in relation to this case of one of the mem¬ 
 bers of the Indiana delegation ; and, also, to remark, that it is further 
 contended by at least a part of the Indiana delegation in Congress, that 
 the 2d section of the act of 2d March, 1827, which makes it the duty of 
 the Governor or other authorized agent of the State to examine and as¬ 
 certain the particular lands to which the State would be entitled under 
 the provisions of that act, and report the same to the Secretary of the 
 Ti easury, confers on the State the power of making the selection asked 
 for, m the first instance ; and that the Secretary or other proper authority 
 has only the power of subsequent recognition or confirmation, they re¬ 
 garding the words to “ examine and ascertain,” as used in that section, as 
 equivalent to and that the clause in the 1st section which re¬ 
 
 quires a selection to be made by the Commissioner of the Land Office, 
 under the direction of the President, refers exclusively to the last ante¬ 
 cedent, viz : the alternate sections to be reserved to the United States; 
 that the words “ from one end thereof to the other,” coupled with the 
 last-cited phrase, refer also to the same antecedent, as before remarked, 
 and that hence it became necessar'y to make the further provision for the 
 selection of the lands granted by the act to the State. In support of this 
 position it is also urged that, unless the above construction is given to 
 the act, the 2d section would be unmeaning and inoperative, and, at 
 least, unnecessary ; and that a statute should be so construed as to give 
 to every part of it an effect and operation, if possible. 
 
 In view of the magnitude of the interests involved in the case, and of 
 the relation to the subject which, as a citizen of Indiana, I occupy, I 
 have declined expressing my views on the merits of the claim, and 
 would respectfully submit the matter for the examination of the Attorney 
 General, and for his opinion upon certain points that have arisen touch¬ 
 ing the construction of the act, viz : 
 
 1st. ^Vas the State estopped or precluded from extending the canal 
 from the mouth of Tippecanoe river to the Wabash at I'crre Haute, so 
 as to be entitled to the additional quantity of land asked for, under the 
 act of 2d March, 1827 ^ 
 
 2d. If such right existed, can the “ Commissioner, under the direction of 
 
Dur, No. 32 , 
 
 34 
 
 the r*iesideiit of the United States,’’ make an additional selection iioiii 
 [)ub!ic land, beyond the limits of five sections in width on each side of 
 the extended portion of the canal, in lieu of land which has been sold or 
 otherwise disposed of within those limits, and which would otherwise 
 belong to the State ? 
 
 3d. Has the Slate, by the Governor or other authorized agent, a light 
 to make the selection in the first instance, and report such selection to 
 the Secretary of the Treasury or other officer for subsequent confirmation 
 or recognition ? And, also, his opinion on such other points as he may 
 regard as growing out of, and pertinent to, the claim under consideration. 
 
 f am, sir, very respectfully, your obedient servant, 
 
 JAMES WHITCOMB, 
 Commissioner of the General Land Office. 
 
 'ro the Hon. Secretary 
 
 of the Treasury. 
 
 No. 17. 
 
 Attorney General’s Office, 
 
 August 14, 1838. 
 
 Sir : Pursuant to the request contained in your letter of the 30th 
 ultimo, 1 have examined the communication addressed to you by the 
 Commissioner of the General Land Office, and the numerous documents 
 accompanying the same, in relation to the claim made by the State of In¬ 
 diana to additional lands, under the act of the 2d of March, 1827, “to 
 grant a certain quantity of land to the State of Indiana, for the purpose of 
 aiding said State in opening a canal to connect the waters of the Wabash 
 river with those of Lake Erie.” ' 
 
 The legislative provisions and other matters applicable to the ease are 
 so fully stated in the communication of the Commissioner, that, without 
 repeating them, I shall proceed to state my opinion on the three following 
 questions proposed by him : 
 
 1 st. Was the State estopped or precluded from extending the canal from 
 the mouth of Tippecanoe river to the Wabash at Terre Haute, so as to 
 be entitled to the additional quantity of land asked for under the act of 
 2d March, 1827 } 
 
 2d. If such right existed, can the “ Commissioner, under the direction 
 of the President of the United States,” make an additional selection from 
 jiublic lands, beyond the limits of five sections in width on each side of 
 the extended portion of the canal, in lieu of land which has been sold 
 or otherwise disposed of within these limits, and which would otherwise 
 belong to the State } 
 
 3d. Has the State, by the Governor or other authorized agent, a right 
 to make this selection in the first instance, and report such selection to the 
 Secretary of the 'Preasury or other olficer for subsequent confirmation or 
 recognition ? 
 
 The first of the above questions must, in my opinion, be answered in 
 the negative. 
 
 In the communications made to the General Land Office, in behalf of 
 the State of Indiana, reliance is placed on the fact, that although the Le¬ 
 gislature of Indiana adopted, by their act of the 23d of January, 1829, the 
 
T)oo. ]S’(). 32. 
 
 35 
 
 survey of Colonel Moore, the United States engineer, which terminated at 
 the mouth of the Tippecanoe river, yet this was only done, according to 
 the words of the law, ‘‘/or the thne being,'*'* This reservation, it is ar¬ 
 gued, preserved to the State the right to extend the route of the canal to 
 any other point on the Wabash lower than the Tippecanoe, sliouid it l)e 
 deemed advisable. There is certainly much force in this suggestion ; but 
 I do not rest my opinion on this ground, because 1 cannot think that this 
 qualification was inserted in the act of 1829, with any design of reserving 
 the right to vary the western termination in the manner now proposed. 
 
 It appears to me that it was inserted with the view of providing for 
 such occasional variations from the line traced by Colonel Moore as 
 might be found necessary in the execution of the w’^oik, without departing 
 therefrom to any such extent as to render the allotment of the lands to be 
 received from the United States, and which lands were to be immediately 
 designated, inapplicable thereto. A material departure from the line, 
 and an extension of the canal to a distant point on the Wabash, would be 
 inconsistent with this idea. 
 
 It is evident, from the correspondence between the executive authori¬ 
 ties of the State and those of the Federal Government, and froin the 
 acts of those functionaries, that they all supposed that the western termi¬ 
 nation of the canal was to be at or neai' the mouth of the 'Fippecanoe ; 
 and I think it scarcely to be doubted that the l.egislature of the State ac¬ 
 tually intended that it should so terminate ; and that the qualification above 
 quoted had no reference to any probable alteration of the termination, ex¬ 
 cept such as might be found expedient within the ten miles. It would, 
 therefore, in my judgment, be against the probable intent of (he Legisla¬ 
 ture, and the understanding of the public authorities on both sides, to coti- 
 strue the reservation as including the present case. 
 
 I think, however, that the proposed extension of the canal from the 
 mouth of the Tippecanoe (the first-selected point of termination on the 
 Wabash) to Terre Haute, as now proposed, is a measure fully authorized 
 by the act of Congt ess of the 2d of March, 1827, provided it l)e admit¬ 
 ted, as is doubtless the fact, that such an extension is necessary to the 
 completion ot a convenient and useful navigation between the waters of 
 the Wabash and those of the lake. 
 
 In construing this law, w'e are to have special regard to the purposes 
 intended to be accomplished by it. They evidently were to encourage 
 the State of Indiana to construct a canal between the navigable waters of 
 the Wabash and the lake, it being supposed by the law-makers that such 
 a navigable communication W'ould promote the interests of the United 
 States as w ell as those of the State, by enhancing the value of the public 
 linds in its vicinity, and by furnishing increased facilities for the trans¬ 
 portation of the troops and property o^* the United States from place to 
 place, in the region through w’hich it passed. Hence the engagement to 
 grant to the State a certain quantity of land along the r oute of the canal, 
 and hence, also, the stipulation that the United States should have a per¬ 
 petual right of way over* the canal, for the transportation of (heir property 
 and of persons in their service. 
 
 In reference to such a law% it appears to me to be too narrow a con¬ 
 struction of it to hold that (he State is concluded, as to its point of ter¬ 
 mination on the Wabash, by the selection made in 1829. The great ob¬ 
 ject of the law was to promote the opening of a communication from the 
 
36 
 
 Doc. No. 32. 
 
 lake to the navigable waters of the Wabash. Nothing short of this 
 will effectuate the intents of its authors, or secure to the United States 
 the benefits intended to be derived from it. 
 
 If, therefore, it is found, by further investigation, that to secure a con¬ 
 venient and useful means of communication between the navigable wa¬ 
 ters of the river and those of the lake, the canal should be extended to 
 Terre Haute, then I think it not only competent for the State of Indiana, 
 within the true meaning of the act of Congress, but due on the part of that 
 State to the United States, that such an extension should be made. 
 
 If it be said that the United States are satisfied with the communication 
 already opened, and that the construction above given makes the State the 
 sole judge of the question whether the extension is really necessary or 
 not, my answer is, that the power and duty of fixing the terminating point 
 were left by*the act of 1827 exclusively to the State Legislature; that 
 the fact that the greater part of the expense of constructing the canal 
 will fall upon the State is a sufficient guarantee that the extension of the 
 canal to a lower terminating point will not be resolved upon, unless it be 
 really deemed necessary to the usefulness of the work; and that if it be 
 long delayed, the public lands along the route of the proposed extension 
 may all be sold ; and if so, according to a subsequent part of this opinion, 
 the State will be obliged to apply to Congress for relief, w'ho will have 
 full power to deny it altogether, or to grant it on such conditions as they 
 may deem just. 
 
 in respect to time, it is also to be observed that no extension can be 
 made within the law of 1827, however necessary it may be to the perfec¬ 
 tion of the work, unless it be fully completed within twenty years from 
 the date of that law ; it being expressly provided that the canal shall be 
 commenced within five and finished within twenty years from that time. 
 
 The provision just referred to is the only limitation as to time contained 
 in the law ; and as the work was actually commenced within the five 
 years, and as the twenty years have not yet expired, I am of the opinion 
 that the proposed extension of the canal from the mouth of Tippecanoe to 
 Terre Haute, if completed within the twenty years, must be regarded as 
 a part of the canal contemplated by the act of 1827 ; and that, when the 
 same is located and agreed on by the Legislature of the State, the addi¬ 
 tional lands provided by that act, so far as the United States are now in 
 a condition to provide them, may be legally claimed by the State. I per¬ 
 ceive no just ground for distinguishing this claim from that made by the 
 State of Ohio, in respect to the eastern termination, and allowed by the 
 United Slates 
 
 2d. The second of the above questions must, in my opinion, be answer¬ 
 ed in the negative. The arguments offered in behalf of the State have 
 failed to convince me that there is any power in the executive depart¬ 
 ment to remedy the deficiency referred to in the question. In all anala- 
 gous cases which have heretofore occuired, (and one of them was under 
 this very law,) it has been thought necessary to apply to Congress. Inde¬ 
 pendently of the legislative construction which has been given to the 
 law, I should have deemed it unsafe and improper to claim the power sup¬ 
 posed ; after that construction, it seems to me to be wholly inadmissible. 
 
 3d. The third question must also, in my judgment, be answered in the 
 negative. 
 
 It may be conceded that the duty imposed on the Commissioner ol the 
 
Doc. No. 32. 
 
 37 
 
 General Land Office, of selecting, under the direction of the President, is 
 confined, on a strict construction of the 1st section, to the alternate sec¬ 
 tions to be reserved for the United States ; but that selection is to be made 
 in the first instance, and, when made, it necessarily designates the sections 
 to be taken by the State. 
 
 The authority conferred by the 2d section, on the Governor or 
 other agents of the State, is not an authority to select, but to examine 
 and ascertain the particular lands to which the State will be entitled ; 
 and if it includes the power to select, it must be exercised in subordina¬ 
 tion to that previously given to the Commissioner of the General.Land 
 Office. 
 
 In reference to this question, and, indeed, to all the questions proposed 
 to me, it is proper to remark that they have all received a practical con¬ 
 struction, not only as arising under the act of 1827, but under laws of a 
 similar nature which are referred to in the correspondence before me ; 
 and that, where this is the case, the course usually adopted by the depart¬ 
 ment ought not to be departed from, unless clearly found to be erroneous, 
 
 I am, sir, &c. 
 
 B, F, BUTLER, 
 
 Hon. Levi Woodbury, 
 
 Secretary of the Treasury. 
 
 No. 18. 
 
 Treasury Department, 
 
 August 23, 1838. 
 
 Sir : I refer you to a copy of the opinion of the Attorney General 
 upon the questions presented in your letter of the 26th of July last, and 
 request that it may be examined by yourself and the Solicitor, and that 
 you will make report of any objections which, in your opinion, may be 
 taken to the views therein expressed, or to the difficulties in carrying 
 the same into effect. 
 
 LEVI WOODBURY, 
 Secretary of the Treasury. 
 
 James Whitcomb, Esq., 
 
 Commissioner of the General Land Office. 
 
 No. 19. 
 
 General Land Office, Soi.icitor’s Bureau, 
 
 November 27, 1838. 
 
 Sir : In complying with your letter of the 23d August, requesting me 
 to examine the opinion given by the Attorney General, under date of 4he 
 14th August, 1838, and to report any objection which in my views might 
 be taken thereto, and also any difficulties that may be anticipated in car¬ 
 rying the same into effect, I beg leave to state the case from which the 
 questions propounded to him originated, to wit : 
 
3S 
 
 Doe. No. 32. 
 
 The act of 1827, (vol. 1, page 938,) ‘‘granted to the State of Indiana, 
 for the purpose of aiding the State in opening a canal to unite, at naviga¬ 
 ble points, the waters of the Wabash river with those of Lake Erie, a 
 quantity of land equal lo one half of five sections in width on each side 
 of said canal, from one end thereof to the other.” Each alternate sec¬ 
 tion within the five sections of width, to be selected by the Commis¬ 
 sioner of the General Land Office, under the direction of the President, 
 was reserved lo the United States. 
 
 The State was required to commence the canal in five years and to 
 complete it in twenty years, in default of which the amount of the lands 
 sold was to be repaid to the United States. The 2d section of the 
 act made it the duty of the State to locate and agree on the route of the 
 canal, and to ascertain and report to the Secretary of the Treasury the 
 lands falling within five sections of width on each side of the line. The 
 3d section gave the State power to sell after this repor t, and (he selec¬ 
 tion by the Commissioner, based thereon, were made. 
 
 The State of Indiana, by a law approved January 23, 1829, (sec. 4,) 
 located and agreed on the route of all that part of the canal lying in In¬ 
 diana, terminating one end thereof at a navigable point of the waters of 
 the Wabash river. The particular lands to which the vState was suppo¬ 
 sed to be entitled were ascertained by the authorities of the State, and 
 reported to the Secretary of the Tr easury ; and Mr. Graham, under tlie 
 direction of the Pr esident, made the selections of each alternate section 
 reserved to the United States. 
 
 The amount of 29,528.78 acres of the land within five sections ol 
 width, which otherwise would have been vested in the State, was found 
 to be disposed of, and an act of Congress approved May 29, 1830, (vol. 
 2, p. 267,) authorized other lands to be selected in lieu thereof. Selec¬ 
 tions were accordingly made, and finally approved in 1830, when this 
 office and the State of Indiana (as shown by the correspondence and a 
 resolution of the State Legislature approved January 8, 1835) supposed 
 its powers and duties respecting all that part of the canal lying in Indiana 
 were exhausted and ended. 
 
 On the 24th day of February, 1834, by contract between Indiana and 
 Ohio, all that part of the canal lying in Ohio, and the lands granted by 
 the United States to aid in its construction, were transferred to Ohio. 
 
 On the 30th day of June, 1834, a law of Congress was approved, (chap. 
 137, p. 93,) which authorized lands to be selected by the selecting com¬ 
 missioners, in lieu of those sold in Ohio. 
 
 The 3d section declar ed that all lands on and near the line of the ca¬ 
 nal should be reserved from sale until said selections in lieu of sold 
 lands should be made, and also the selections granted by the act of 1827. 
 
 Owing to the difficulty existing between the State of Ohio and Michi¬ 
 gan, relative to the boundary line between the two States, no part of the 
 line of the Wabash and Erie canal in Ohio was located and agreed on 
 by the State prior to the 8th day of April, 1836, at which time the board 
 of public works, who alone were authorized to locate any par t of the 
 route, by their resolution of the said 8th, located and agreed upon the en¬ 
 tire line, extending from the Indiana State line to the Maumee bay—that 
 being the navigable point of the waters of Lake Erie selected by Ohio. 
 
 The lands within five sections of this entire line were ascertained by 
 Ohio, and the alternate sections reserved to the United States were se- 
 
Doc. No. 32. 
 
 39 
 
 lected, as had been done for Indiana on the western part of the line. 
 Since said selections weie completed, this office has supposed its duties 
 under the act of 1827, with reference to the whole line of canal, from the 
 Wabash to Lake Eric, fully performed, and its powers exhausted. Such, 
 also, is the opinion I have entertained. 
 
 The 4th section of an act of the Indiana Legislature approved Janu¬ 
 ary 27, 1836, (as stated by D. H. Maxwell, president of the State board 
 of internal improvements,) “provides for the continuation of the Wa¬ 
 bash and Erie canal, along the valley of the Wabash river, to Terre 
 Haute, and thence across to the Central canal, through which it will be con¬ 
 nected with the Ohio river.” He also states that the board have deter¬ 
 mined to connect the canal with the Wabash by means of locks at Terre 
 Haute, and with no point below. 
 
 On the 15th August, 1837, the president of the board transmitted to 
 the Commissioner of the General Land Office a plat of this extended 
 line, &c., and called upon him to select the alternate sections for the 
 United States, within five sections of width on each side of the line, and 
 to permit the State to select elsewhere a quantity equal to the amount 
 sold by the United States before the present time. 
 
 I understand the Attorney General as deciding— 
 
 1st. That the 4th section of the act of Indiana of 1829 fixed the point 
 of termination for the canal at the navigable waters of the Wabash, near 
 the mouth of the Tippecanoe river; and that the words “/hr the time 
 bemg,^^ in the 4th section of that act, were not intended by the State as a 
 reservation of the right to go below to another navigable point at any 
 future period. 
 
 2d. That the act of 2d March, 1827, fully authorized the proposed ex¬ 
 tension and setting apart of the alternate sections, if it be admitted that 
 such extension is necessary to complete a convenient and useful naviga¬ 
 tion between the waters of the Wabash and Lake Erie. 
 
 3d. That selections of land in lieu of those sold cannot be legally 
 made without a new law of Congress. 
 
 4th. That he perceives no just ground of distinguishing this claim 
 from the one made by Ohio, and allowed by the United States, in respect 
 to the eastern termination of the canal. 
 
 5th. That in all cases where a practical construction of a law has been 
 given by the department, it should not be departed from, unless clearly 
 found to be erroneous. 
 
 With respect to the 1st, 3d, and 5th of these points, I believe no valid 
 exception can be taken to the opinion of the Attorney General. 
 
 On the 1st point, it is adverse to one of the strongest positions taken 
 by the Indiana delegation, viz : “ That a final termination was not de¬ 
 signed by the act of 1829.” It makes the present demand a claim of the 
 right to exercise a second final discretion, for the purpose of determining 
 what point on the Wabash river is the navigable point. 
 
 In reference to the 4th point, I have to state that, in my opinion, there 
 is a material and just ground of distinction, in point of fact, between the 
 claim now presented by Indiana and the one made by Ohio in reference 
 to the eastern termination of the canal, and allowed by tlu; late Presi¬ 
 dent; but, at the same time, 1 find no fault with the opinion of the Attor¬ 
 ney General on this point, for the following reasons, viz: The Attorney 
 General never assumes to determine facts. His opinions are always 
 
40 
 
 Doc. No. 32. 
 
 given, assuming the facts to be as stated in the question propounded to 
 him. By a careful examination of that statement, it will be found that 
 he was left to infer that the line of canal from the Ohio State line to the 
 foot of the rapids in the Maumee river (a connecting point with the nav¬ 
 igable waters of Lake Erie) was finally located and agreed on by the 
 State of Indiana prior to the transfer to Ohio; and that Ohio, taking title 
 from Indiana, was bound by her legal acts. From such premises it would 
 follow that the extending of the line by Ohio, from the foot of the Mau¬ 
 mee rapids to the Maumee bay, was a new extension, allowed after one 
 final termination had been located and agreed on by the State. I have 
 no doubt that the Attorney General so reasoned, and I submit that it was 
 correct reasoning. 
 
 The Indiana authorities have all reasoned in the same way ; and it is 
 not surprising that, so understanding the precedent established by the de¬ 
 partment, she should claim the benefit of a principle which was by her be¬ 
 lieved to have been recognised in reference to the claim of her sister 
 State, and partner in the canal. 
 
 The correspondence between this office and the Governor of Ohio, 
 which by the latter was communicated to the Legislature of Ohio and 
 published, was well calculated to lead to the misapprehension which has 
 obtained, and without which, I apprehend, no such claim as the present 
 would have ever been presented to this department. By an oversight, 
 the Attorney General was furnished with the 11th section only of the 
 act of Indiana approved February 1, 1834, which was nearly a tran¬ 
 script of the 4th section of the act of 1829, and purports to fix finally the 
 line of that part of the canal lying in Ohio, connecting it with the navi¬ 
 gable wateis of the lake at the Maumee rapids. Had the entire law 
 been embraced in the case stated to the Attorney General, he w'ould 
 have perceived the distinction which I take ; for the 23d section provi¬ 
 ded that said 11th section should he inoperative and null^^^ if Ohio, at 
 that session, accepted the canal lands on the terms proposed by Indiana; 
 and Ohio did so accept them on the 24th day of the same month. She 
 took the grant of lands and the canal, before any part of the line what¬ 
 ever was located. The Ohio act of 1834 authorized her canal com¬ 
 missioners, and no one else, to make the location. The commissioners 
 for the purpose of selecting lands, and the Governor, had, neither of them, 
 any authority whatever to adopt Stansbury’s line, or any other line, or 
 portion of a line. 
 
 The Governor’s statement, that Stansbury’s line would be adopted, 
 was never considered as the adoption of that line, or as committing the 
 State upon the subject, simply because it was known that the Legislature 
 of Ohio had not conferred upon him the requisite power, but had confi¬ 
 ded it to the canal board. 
 
 It is true that he and the selecting commissioners proceeded to select 
 lands, and report maps, &c.,on the line of Stansbury, but they were not 
 and could not be recognised at the General Land Office as legal or defin¬ 
 itive, because the act of Congress of 1827 did not authorize selections 
 until after the State had located and agreed on the route of the canal. 
 
 The Ohio canal commissioners refused to locate any part of the line 
 while the boundary of the State remained unsettled, because they 
 thought the natural and proper point of connexion with the navigable 
 w’aters of the lake was below the termination of Stansbury’s line, and 
 
Doc. No. 32. 
 
 It 
 
 within the then disputed territory; and that if they adopted Stansbury’s 
 tine, in the words of the 11th section of the Indiana act of 1834, and the 
 Governor went on to perfect his locations, that the State could not after¬ 
 wards go below to a more suitable navigable point, and obtain the grant 
 of lands, without the assent of Congress. 
 
 The canal remained unlocated, and no lands were selected by the 
 General Land Office, until 1836, when the board of public works 
 of Ohio (to whom had been transferred the duties of the canal com¬ 
 missioners) met, and, by their resolution of April 8, 1836, located 
 and agreed on the entire route, extending from the Indiana State 
 line to the Maumee bay. This, on the part of Ohio, was claimed and 
 allowed to be the only act, of either State, fixing any part of the canal 
 line in Ohio, and was held, as had been before held in reference to the 
 western termination, to be a final exhaustion of the right of the State, 
 under the act of 1827, to determine the point of navigability of lake wa¬ 
 ters most suitable to be met by canal navigation. The lands granted by 
 the act of 1827 were, under the authority of the act of June 30, 1834, 
 selected, and set apart to Ohio. 
 
 It will be perceived that the case of Ohio (aside from the act of June 
 30, 1834) is precisely like that of Indiana, as heretofore allowed. 
 Each State has once located and agreed upon her respective part of the 
 line of canal; each has once exercised her discretion in fixing upon the 
 most suitable point of connecting her respective termination with navi¬ 
 gable waters, and had selections of land from one end of her line to the 
 other. After which, the public sales have progressed, until a large por¬ 
 tion of the land lying within five miles of the new line has been dis¬ 
 posed of to bona fide and innocent purchasers. 
 
 The distinction between the claim now presented by Indiana, and the 
 one allowed to Ohio, is as broad as the distinction between this claim 
 and the first that Indiana made. It is a new offer, after the lapse of 
 several years, to build a new canal from the navigable point of the Wa¬ 
 bash which the Legislature of 1829 selected, to another navigable point 
 selected by the Legislature of 1836, and ninety miles distant from the 
 first point. It is a claim to exercise the discretion of determining upon 
 the most suitable navigable point, which was given to her by the act 
 of 1827, a second time; and if allowed a second time, may with the 
 same propriety be allowed any number of times between this and the 
 year 1847, or as often as the people of Indiana shall return to her Legis¬ 
 lature men who may differ from those who were there during the ses¬ 
 sions of 1829 and 1836. 
 
 I do not consider a construction of the act of 1827 which will lead to 
 the results I have named either correct or admissible. A material ob¬ 
 ject of Congress in enacting laws of the character of the act of 1827 
 may be supposed to have been the expectation of receiving an enhanced 
 price for the alternate sections reserved to the United States, in conse¬ 
 quence of the location of a canal near them prior to a sale. This object 
 is inferrible from the phraseology of the act, as well as from the debates 
 upon the bill prior to its passage. If selections are to be allowed after 
 this late period, the lands being nearly all sold, the object of the law in 
 this respect will be essentially defeated. I submit that the construction 
 of a law which defeats a material object of the lawgiver is rarely, if 
 ever, correct, and that it should be avoided, if possible. Should it be 
 6 
 
42 
 
 Dor. No. 32. 
 
 said that the above object of Congress might have been secured by with¬ 
 holding from sale the lands lying on the new line, my reply is, that it 
 has been the usual practice of Government to refuse to sell lands sup¬ 
 posed to be covered by such grants; but that, in this case, the action of 
 Indiana in 1829 was such as to leave no legitimate ground for antici¬ 
 pating this extension ; and to admit the applicability of such reasoning 
 would be equivalent to an admission that it is proper for the present 
 Executive to depart from the legitimate principles of action which have 
 governed the conduct of his predecessors. It would be tantamount 
 to a decision that their practice of continuing public sales on and in the 
 vicinity of this new canal was unauthorized and illegal. This, under 
 the present opinion of the Attorney General, (as well as by every cor¬ 
 rect rule,) should not be done, unless the practice he found clearly cr- 
 roneoiisy Again : I submit that a construction of the act of Congress 
 of 1827, which would have required the President to reserve from sale, 
 for twenty years, a tract of land ten miles in width, extending from the 
 mouth of Tippecanoe river to the mouth of the Wabash, in anticipation 
 that Indiana might within that period thus far extend her canal, was 
 never designed by Congress. 
 
 In reference to the second point above stated to be determined by the 
 opinion of the Attorney General, it is perhaps proper for me to remark 
 that, in the winter of 1835, at the request of the president of the board 
 of Ohio canal commissioners, I examined the same question, and 
 gave a verbal opinion, ‘‘ that if Ohio located and agreed on the route 
 surveyed by Stansbury, adopting the language of the 11th section of the 
 act of Indiana aforesaid, and closed the selections of land accordingly, it 
 would be treated by the United States as a final termination of the canal 
 at the foot of the Maumee rapids; and that, if at some future period the 
 State should desire to extend the canal to the Maumee bay, lurthei 
 congressional legislation would be necessary, to vest in the State the 
 lands proposed to be granted by Congress on each side of that part of 
 the line. 
 
 That the act of 1827, by necessary implication, gave the State the 
 right to determine the most suitable point of connecting with the navi¬ 
 gable waters of the lake, but would not bear a construction to justify a 
 second exercise of such discretion, after the lapse of five years, and a 
 completion of the selections of lands, so as to enable them to go below 
 to a new point. Of the same opinion, as I understood, were the board 
 and several eminent lawyers of Ohio, including a late chief justice of 
 the State. My reasons for thus giving and now entertaining the same 
 opinion are, that the act of 1827 is one which, by every well-settled 
 rule, should receive a strict construction. It appeared to me to partake 
 largely of the nature of a liberal grant. The grant of power to deter¬ 
 mine the points of union with the navigable waters at either end of the 
 canal is clearly such. The rules applicable to the construction of like 
 grants are collected in 6 Peters, 738 and 739; and, in my judgment, 
 an exception may be taken to the opinion for conflicting with them. 
 Can it be said that the necessary meaning and intendment of the words 
 of the act of 1827 passes to the State the right of making more than one 
 determination or selection of a point of connexion with the navigable 
 waters of the Wabash 1 
 
 It certainly could not have been absolutely necessary for the State to 
 
Doc. No. 32. 
 
 43 
 
 commit an error in fixing the first termination; consequently, it does not 
 follow, by necessary implication, that the act provides for it. It is be¬ 
 lieved that no precedent of the department which will support this claim 
 can be found. The Ohio case is the only one which has been cited, 
 and 1 have shown that it is clearly inapplicable, if not directly against it. 
 
 The difficulties which might be anticipated in carrying the opinion 
 into effect are those usually arising in cases of disputed land titles. 
 
 The operative words of the law of 1827 are, there shall be and 
 hereby is granled.’''* These words pass an estate in presenti: the only 
 restriction upon their natural force is, that the grantee has no power of 
 sale until the route of the canal is agreed on, and the alternate sections 
 to be reserved to the United States have been selected by the Commis¬ 
 sioner. He has no power over the sections not reserved ; when he se¬ 
 lects what was reserved, the title of the grantee is perfect to whatever 
 was, in fact, granted. Should he be directed to proceed and name, for 
 instance, the sections within five miles of the line numbered with even 
 numbers, it would follow that the sections alternate to fhem are then 
 the property of the State, by a title derived in 1827, which operated 
 from date, and that the subsequent sales of such sections are null, and 
 should be cancelled. 
 
 1 am aware that the Attorney General has intimated a different opinion 
 upon this part of the law of 1827. But how can it be said that a law, 
 general in its terms, and professing to grant the half of all that the 
 grantor had within the given limits, conveys a part only of that half? 
 VVhen did the act of 1827 operate as a conveyance, if not from its date ? 
 Of what validity are the sales below the mouth of Tippecanoe, if the 
 United States parted with the title as early as March, 1827? A State 
 cannot grant lands twice. It may be said that the State authorities do 
 not ask for the lands which have been sold to her citizens by the United 
 States since 1827. Admit it. They ask lands in lieu of them elsewhere. 
 Suppose, however, that Congress should refuse to grant land elsewhere, 
 could she not turn round and sell these lands after the alternate sec¬ 
 tions have been reserved to the United States, and thus force Congress 
 to make the grant, or else to pay her citizens for the defective titles 
 they have bought? Most clearly she could, if, as she now contends, she 
 has a legal title and claim to any land on the line of the new canal. 
 
 Would not the honest farmer of Indiana, who, by such a proceeding, 
 should lose his home^ perhaps his all, have just cause of complaint 
 against his country ? And how could his country justify such a disre¬ 
 gard of his welfare? Would it relieve his wounded spirit, or repair the 
 injuiy of being sacrificed to produce a supposed public good, to tell him 
 that the United States thought the parental protection of his own State 
 would have saved him ? Could he not, with propriety, retort: “ 1 relied 
 upon the good faith of the National Government, and not upon the 
 charity of the vState!” 
 
 By refusing to make selections of the alternate sections to be reserved 
 to the United States, and referring the entire subject to Congress, every 
 difficulty may be avoided. Congress will, undoubtedly, do all that is 
 just in the premises, both to the public and to Indiana. If the Urrited 
 States are willing to admit that this new extension is necessary to com¬ 
 plete a convenient and useful navigation. Congress can and will say so. 
 1 do not believe the department authorized to make any such admission, 
 
44 
 
 Doc*. No. 32. 
 
 and without it, the Attorney General does not seem to think the act ol 
 1827 authorizes the extension and recognition of title. 
 
 I am, very respectfully, your obedient servant, 
 
 M. BlRCHAliD, 
 
 Solicitor. 
 
 Hon. Lkvi Woodbury, 
 
 Secretary of the Treasury. 
 
 No. 
 
 20 . 
 
 General, Land Office, 
 
 December 11, 1838. 
 
 Sir : Your letter ot the 23d August last, transmitting a copy of the; 
 opinion of the Attorney General upon the questions presented in my let¬ 
 ter of the.26th* July last, having been received at this office duiing my' 
 absence, and (supposing the subject was still before that officer) I was 
 not aware of its existence until, on inquiry into the action on the appli¬ 
 cation therein referred to, it was recently brought to my notice. In 
 compliance with the request contained in your letter, that the opinion 
 should be examined by the Commissioner and Solicitor, and a report 
 made of any objections which, in their opinions, might be taken to the 
 views therein expressed, or to the difficulties in carrying the same into 
 effect, 1 have the honor to transmit to you the report of the Solicitor of 
 this office on the subject, with the subjoined remarks, suggested by a 
 perusal of that document. Being a citizen of the State whose interests 
 are involved in the question, and the owner of real property nearly ad¬ 
 joining the proposed extension of the canal, I had already, fiom a sense 
 of propriety, and in accordance with precedent, in my letter to you ol 
 the 26th July last, asking the opinion of the Attorney General, declined 
 expressing my views on the merits of the claim, as controlling the pro¬ 
 ceedings of this office on the question, deeming it proper to govern my 
 action on the application by the opinion of the Attorney General. 
 
 In submitting these brief suggestions in compliance with your request, 
 I shall therefore respectfully decline any official action upon the opinion 
 expressed in this communication., until the necessary instructions are 
 given by the supervisory power. 
 
 It is respectfully submitted that the reasoning adopted by the Solicitor 
 does not invalidate that part of the Attorney General’s opinion which 
 affirms the right of Indiana to extend the Wabash and Erie canal from 
 the mouth of Tippecanoe to Terre Haute. 
 
 The act of 1827 granted the lands for the canal to Indiana, subject 
 only to the following conditions, viz : 
 
 The canal was to unite, at navigable points,” the waters of the Wa¬ 
 bash river with those of Lake Erie ; the route to be agreed on by the 
 State ; the \vork to be commenced within five and completed within 
 twenty years, and to remain a public highway for the use of the Unite^l 
 States, free of any charge, forever. It was further provided that, should 
 the State fail in commencing and completing the work within the time 
 prescribed, the proceeds of lands sold in the mean time, under the grant, 
 should be refunded to the General Government. The policy of the law' 
 
iJoc. No. 
 
 45 
 
 32. 
 
 is not now a proper subject of discussion, and it was doubtless supposed 
 by Congress that, in giving to the State the power to determine what 
 were the ‘‘ navigable points,” that power would not be abused, because 
 the land granted would, in all probability, fall far short of the full ex¬ 
 pense of the canal, and the State, therefore, could have no inducement to 
 extend it further than necessary ; and, on the other hand, the United 
 States could not derive the most important benefit contemplated by the 
 act, unless it was extended as far as necessary. Had the State deter¬ 
 mined what were the “ navigable points” before the act of 27th January, 
 1836, authorizing its extension to Terre Haute ? ’ 
 
 The grant was made by Congress in 1827. To save the grant, it was 
 necessary for the State to commence the canal within five years there¬ 
 after. To enable the State to do this, it was deemed necessary to sell a 
 portion of the lands. This she had a right to do by the act, on the con¬ 
 dition that if the canal was not commenced and completed as required 
 by its teims, the pioceeds of the lands thus sold should be refunded to 
 the United States. But, to that end, it was incumb||}a»tiQn|l«ye State to' 
 “ locate and agree” on at least apart of the route of the canal, before 
 any lands could be selected for sale. The first act of the Legislature of 
 the State, designating the route of the canal, was approved 23d Januarv, 
 1829. The 4th section of that act provides “ that the line of the said 
 contem|)lated canal, as surveyed, and marked, and platted, by the engi¬ 
 neer ol the United States, as the same now stands altered by the com- 
 inissioneis of the State of Indiana, as by them surveyed, marked, and 
 platted, (the field notes and plats of all said surveys are now in the office 
 of the Secretary of this State,) be, and the same is hereby,/or the time 
 beings adopted and established as the line of said canal, subject, however, 
 to such alterations as the chief engineer, who may be em])loved by the 
 State of Indiana to superintend the construction of said canal,"may find it 
 necessary, for the interest of the State, to make.” The route of the ca¬ 
 nal alluded to in this section is stated (in the letter of David Burr, the 
 president of the board of commissioners of the canal, communicated to 
 the then Commissioner of the General Land Office, bearing date 26th May 
 1829) to be “ the route levelled and suiveyed by Colonel Moore, Uni¬ 
 ted States engineer, from the junction of the Tippecanoe with the Wa¬ 
 bash river, on its north side, to the mouth of Little river.” “ The line 
 thence passes up the northwest side of Little river to Portage Prairie 
 \yithin six miles of the junction of the St. Joseph’s and St. Mary’s rivers • 
 thence, across the St. Mary’s river near the mouth and down the south 
 side of the Miami of Lake Erie, to (he Ohio State line.” 
 
 J’his letter v»^as communicated for the purpose of procuring a selection 
 ot lands, and a selection was made for that part of the route thus located. 
 
 The question now occurs, did the State, hy the passage of this act, fol¬ 
 lowed by this selection ol lands, exhaust her power to “ locate and 
 
 agree on the route of the canal, and thereby fix the supiiosed “ naviira- 
 ble points ^ 
 
 1 o maintain the affirmative of this question, the position must be taken 
 that the State could act hut once in locating the route. If so, the State 
 could not delegate to Ohio the right of extending that location ; a ri‘dit 
 which, on the above hypothesis, Indiana had parted with by her jirece- 
 dent action. Yet we find that, hy a joint resolution of the Legislature 
 ol Indiana of February J, 1834, the right of that State to that imition of 
 
 
4G 
 
 Doc. No. 32. 
 
 the canal grant lying within Ohio was actually ceded to Ohio, on condi¬ 
 tion that the latter State should construct that part ol the canal lying 
 within her territory. 
 
 The State of Ohio accepted the grant on the terms proposed, by a 
 joint resolution passed February 24, 1834 ; and on the 8th day ol 
 1836, extended the loute from its first eastern termination at the Ohio 
 State line to the Maumee bay on Lake Erie. Congress, by the act ol 
 June 30, 1834, impliedhj admitted the right of Ohio to make the exten¬ 
 sion, by granting lands, in lieu of those previously sold on the route ol 
 the canalt &c., to be selected elsewhere. The right of extension is not 
 expressly granted by (he last-cited act, that not being considered neces¬ 
 sary ; buCby granting additional lands/or the extension the right ot 
 such extension is tacitly admitted, ll, then, the act ol 
 fixing the route from the mouth of Tippecanoe to the Maumee ol the 
 Lake at the Ohio line, precluded that State from making a further loca¬ 
 tion the right of extension on the part of Ohio involves the legal absurd- 
 'ity, that a 4 i » »n » l ii»« ># can exercise a power by virtue ol the grant, ol which 
 the grantor was divested at the time of the grant. Ohio had no origmal 
 ri<^ht to the canal lands within her limits by a grant from Congress. She 
 awjuired them, after they were granted to Indiana, by cession Irom tie 
 
 ’“‘jfl rightly uiidei stand the Solicitor’s argument, ho contends that the 
 Dower was exhausted as to the western termination, but not as to the 
 Lstern. But it is submitted whether such a distinction does in fact 
 exist. The eastern termination is a point on the Miami (or Maumee) 
 of the I.ake, at the Ohio State line, below the confluence ol the St. Jo¬ 
 seph’s and St. Mary’s rivers. The river from this point, as I am in¬ 
 formed by members ol Congress from Indiana, is at times navigable 
 descending boats. It would seem, therefore, that the eastern end of t e 
 canal as fixed by the last-cited act, is at a point occasionally navigMe , 
 and from the application filed, sustained by the history of the country, 
 
 this is all that can be said of the western end. „ , .. „ 
 
 It is well known that there arc. few of even the smallest stiearns in 
 
 the Western States (flowing genei-ally, as they do, through =» 
 country) that are not navigable when swollen by rams; but a canal that 
 could be used only during the very short time that such streams aie 
 navigable would be at once abandoned as a source ol expense. 
 
 Aside from this view, to contend that the western termination ol the 
 canal was final, on the presumption that it is at a navigable point, and 
 that the easter’ii termination, at the Ohio State 
 
 was not final, on the supposition that the Maumee of tl e ^ 
 
 noint was not navigable, it is submitted is a begging of the question , 
 Which is, in fact, whether the mouth ol the Tippecanoe is a naviga e 
 point If it be not, it would seem that the same right now exists to ex- 
 e^d the cmial further down the latter river, that authorized the exten¬ 
 sion of the eastern extremity to the lake It is ‘ha‘ Where s 
 
 ofticial proceedings and correspondence bearing on the mattei, there is 
 equal reason to pfesume that the State regarded the eastern termination 
 
 as first located, as at a navigable point. 
 
 After the first location of the route of the canal from the 
 Tippecanoe to the Ohio State line, the Legislature ot Indiana, by the 
 llTZl of the act of 1st February, 183d, declared »that the line ot 
 
Doe. No. 32. 
 
 47 
 
 canal route, as surveyed, marked, and platted, by H. Stansbury, United 
 States civil engineer, which commences at the State line dividing In¬ 
 diana and Ohio, on the south side of the Maumee river, and is thence 
 
 extended down the vallev of the south side to within about a mile of 
 
 •/ 
 
 Defiance, thence across said river to the north side thereof, thence down 
 the valley of the north side to the termination of the canal below or near 
 the town of Maumee, (the maps, plats, courses, and distances, of which 
 are on file in the office of Secretary of State,) be, and they are hereby, 
 for the time being, adopted and established as the line of said canal, sub¬ 
 ject, however, to such alterations as the commissioners, engineer, or 
 other persons employed to superintend the same, may find necessary for 
 its cheap, safe, and permanent construction to make.” By the 23d sec¬ 
 tion of that act, it was provided that, “ should the State of Ohio, at its 
 present session, pass an act by which that State agrees to accept of the 
 canal lands belonging to this State, lying in the State of Ohio, on the 
 terms and conditions as proposed by this State, then and in that case 
 the provisions of the 11th, 15th, and IGth sections of this act shall be 
 inoperative and of no effect.” 
 
 In preparing the statement of the present claim in this office for the 
 opinion of the Attorney General, the clerk having that matter in charge 
 incorporated the copy of a letter from a former Governor of Ohio to one 
 of my predecessors, which was then believed to have a bearing on the 
 subject, in which the above-cited 11th section was inserted, but not the 
 23d section, repealing the same, on condition that the State of Ohio ac¬ 
 ceded to the grant. I was anxious that every fact bearing on the ques¬ 
 tion should be submitted to the executive law officer for his opinion on 
 the entire question, so as to obviate the necessity of a further submis¬ 
 sion, and reposed entire confidence that every important enactment of 
 Indiana relating to the subject had been furnished by the Governor of 
 Ohio, the rights of which State, as the grantee of Indiana, were affected 
 by them. I'he accompanying documents being very voluminous, and the 
 existence of the 23d section not being at the time present to my mind, 
 if it ever had been, I was not aware of the omission. The error, if it be 
 one, it will therefore be seen, is referrible, in the first instance, to the 
 letter above alluded to, in which, in view of the interests of Ohio, its 
 insertion would naturally be expected. 
 
 It will be seen, from the accompanying report of the Solicitor, that he 
 is of the opinion that, had the attention of the Attorney General been 
 called to the omitted section, his opinion would have been adverse to 
 the right of extension. On this point, I am constrained to differ with 
 the vSolicitor: 
 
 1st. Because, if Indiana had exhausted her power by tbe first loca¬ 
 tion, she could not subsequently extend the location as provided in the 
 above-cited 1 Ith section ; which being in that case a nullity, the 23d sec¬ 
 tion, repealing it, was superffuous, and could have produced no effect on 
 the mind of the Attorney General; and if the State had not exhausted 
 the right by the first location, ( which supposition could alone justify Ohio 
 as her grantee in making the second location,) she has the same right to 
 act a third time, if found necessary to effectuate the objects of the grant. 
 And, 2d. Because, on reference to the opinion of that officer, it will be 
 seen that he does not base the right of Indiana to extend the route to 
 Terre Haute on the extension by Ohio to Maumee bay, as a precedent, 
 
48- 
 
 Doc. No. 32. 
 
 but directly affirms the right claimed, by general reasoning on the lan¬ 
 guage and spirit of the act, and subsequently mentions the extension by 
 Ohio, 4s being in accordance with the principles established by that rea¬ 
 soning’. • ’ 
 
 It is objected that, if the right now claimed is conceded, there is no 
 security .against the State’s making a further extension to the mouth of 
 the Ohio, as the State of Ohio has already extended her part of the ca¬ 
 nal to a bay of Lake Erie. But the law of Indiana, extending the route 
 to Terre Haute, does not qualify it as fixed only “ for the time being,” as 
 was the case in the two previous laws indicating the temporary location. 
 The termination at Terre Haute, besides, is connected with another ca¬ 
 nal, (to be constructed at the expense of the State,) which extends to the 
 Ohio river at Evansville, above the mouth of the Wabash, and renders 
 the apprehended extension to the latter place wholly surperfluous. It 
 is also expressly stated by the authorities of the State, in their corre¬ 
 spondence, that the termination at Terre Haute is to be regarded as final. 
 It becomes, therefore, scarcely necessary to add that the supposed im¬ 
 policy of extending the canal to the mouth of the Wabash has nothing 
 to do with the abstract question of right. 
 
 To the request in your letter for a report as to the difficulties in car¬ 
 rying the opinion of the Attorney General into execution, the Solicitor 
 contends, that as much of the lands on the line of the extension, as now' 
 claimed, have been sold by the United States since the act of 1827, the 
 title of the purchasers would be jeoparded if this claim is recognised 
 on the ground that the act of 1827 was a grant m presenli^ and that one 
 half of all the lands that should be found to lie within the prescribed 
 distance from the canal, as subsequently located, passed before such lo¬ 
 cation from the United States, and became vested in the State ; that in¬ 
 termediate sales to individuals would be in derogation of the right of the 
 vState, and would be annulled ; and that the purchasers could then claim 
 a remuneration from the General Government. If this construction of the 
 act of 1827 be correct, it would have been necessary, for the purpose of 
 avoiding ‘‘ the difficulties” pointed out by the Solicitor, to reserve from 
 sale, until the final location of the route, a quantity of land so very ex¬ 
 tensive as could scarcely have been contemplated by Congress. Until 
 an actual survey was made, it was uncertain not only what the length of 
 the canal would be, but also whether the location would not deviate 
 laterally an indefinite distance from the present route. It would seem 
 that the grant, made as it was without reference to specific or ascertained 
 limits, took effect only on a contingency, which was the subsequent lo¬ 
 cation of the canal by the State, by which alone the limits or extent of 
 the grant could be fixed or ascertained. The Solicitor intimates, as it 
 would appear, that the difficulties arising from conflict of title betw^een 
 the State and individual purchasers, in relation to lands on the proposed 
 extension, would be so much increased by the length of time that had 
 elapsed after the grant in 1827, and until the extension by Indiana in 
 1836, as to render the recognition of the right inadmissible. But the 
 eastern extension by Ohio was not made until the spring of 1836, 
 about nine years after the grant of 1827, and some months after the 
 western extension by Indiana. The extension by Ohio w'as, notwith¬ 
 standing, recognised, although the lands had continued to be sold adja¬ 
 cent to it, after the grant in 1827, and before the selections w'ere made, 
 
49 
 
 Doc. No. 32. 
 
 as appears by a letter of April 22, 1834, from the Governor of that State 
 to the Commissioner of the General Land Office, which will be fomocl' 
 with the accompanying documents. These sales have been i*espeeted," 
 and Congress, by the act of June 30, 1834, granted to Ohio o^erljm^s 
 to an equal amount, in lieu of those sold. It may also be obse^rre'^Hhat 
 if Congress had viewed the act of 1827 as a grant in presenti, it^woudd 
 not have been provided by the 3d section, act of June 30, 1834, thaf uif^ 
 til selections.should be made on the route in Ohio, the lands on each 
 side should be reserved from sale. If the lands had already passed to 
 the State, such a reservation would have been unnecessary. 1 accord 
 with the Attorney General’s opinion on this point of construction, which, 
 if correct, w’ould operate only to set aside all sales made after the se¬ 
 lections of the lands, or, at most, those made after this office! was legally 
 apprized, in August 1827, of the extension. 
 
 It is believed that but few sales within the limits have been made 
 since that time, and of those few^ the patents can be withheld until the 
 decision of the question. If the right of the State is recognised, the 
 purchase-money could be refunded to the purchasers under existing 
 laws and the settled practice of the office. Difficulties in carrying an 
 act into execution, unless amounting to an impossibility, it is suggested, 
 however, can have little to do with its legal construction, because it 
 ought to be presumed that ail the difficulties were contemplated by the 
 Legislature. 
 
 I am, therefore, of opinion that the State of Indiana not only had the 
 right to extend the route of the canal from the mouth of Tippecanoe to 
 Terre Haute, but that it is due to the United States that the proposed 
 extension to a navigable point should be recognised, and thereby save 
 tne lanas already sold, for securing such a public highway for the use of 
 the General Government as was required by the act, and which it would 
 appear from its face was a leading consideration in making the grant. 
 
 Having intended, when the question was submitted to the Attorney 
 General, to govern my action by his opinion, unless otherwise directed, 
 
 I have restricted myself in this communication to the support of the only 
 part of that opinion which is controverted, regarding the residue as 
 obligatory on this office, in the absence of other instructions. 
 
 I herewith transmit, how^ever, the application from the president o( 
 the board of public works of Indiana, and the two arguments filed in this 
 office by a part of the delegation in Congress from that State, which 
 were before the Attorney General, for such consideration and advice, in 
 reference to the residue of the opinion, as they may seem entitled to. 
 
 It is suggested that as speedy action should be had in relation to this 
 question as may be practicable, to give an opportunity to the members 
 of Congress from Indiana, should they think proper, to bring the subject 
 before that body at an early.pwtod of the present session, it the decision 
 of the Department should finely be adverse to the claim. 
 
 I have the honor to be, with great respect, your obedient servant. 
 
 JAMES WHITCOMB, Vominissioner. 
 
 P. S. The papers accompanying your letter of the 23d August last 
 are herewith transmitted. « 
 
 ' To the Hon. Levi Woodbury, 
 
 Secretary of the Treasury> 
 
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 Covina on 
 
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 Montezuma 
 
 
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 ^Kjbckville 
 
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 Sterling' O 
 
 
 
 Canal Lino 
 
 from tho mvfcf// of TJPI^KCAXOli 
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 as su/vei/et/ //i/ 
 
 CHARLES T WHICrO. 
 
 1835 
 
 .Miles 
 
 Profile of the Carml 
 
Gaylord Bros. 
 Makers 
 
 Syracuse, N. Y. 
 PAT. JAN. 21,1908 
 
UNIVERSITY OF ILLINOIS-URBANA