was again closed until the 2d of March, 1857, and then opened for one day, and again closed.

The practice is said to have been for the register to receive "a descriptive written list" from each applicant for the lands he wished to purchase or enter, and afterwards, when the applications had been examined in their order, and all conflicting claims adjusted, for each applicant "to deposit land warrants or money sufficient to pay for all land applied for and free from conflict.' (Such is the statement of James H. Birch, jr., in his memorial.)

During one of the periods when the office was thus closed, on the 26th of November, 1856, Messrs. Felix and O'Reilly claim to have made their application at Plattsburg for leave to enter the lands now in dispute.

Pursuant to the practice here stated, the register opened the land office at Plattsburg on the 2d of March, 1857, when (as described by James H. Birch, jr., in his memorial) these proceedings occurred:

"The number of applicants present being unusually large, the register, whose duty it was to receive applications, mustered all in a line in the open street. Commencing at one end, under his supervision each drew for the privilege, in turn, of making application and for priority of office work. Everything seemed fair, and so far as I know or believe, the most perfect satisfaction was felt and expressed by every applicant present. Applications were then made in turn; the register received them, dated them, and filed each under his official endorsement. They were thus made, and ever since have been public records of the government. The official maps of the office were then rapidly marked in the usual way, to indicate that the land had been applied for, and all conflicting applications decided by offering each to the highest bidder. The uncontested were then taken up in their order, and duplicates issued, as in the cases of September and November, recited. On that day I was one of the applicants, and under the rule of the office applied for several thousand acres. Of the amount applied for about 30,000 acres turned out to be free from conflict, when I delivered to the register and receiver the full amount in warrants, with the officer's fees for locating the same, in American gold. For the warrants thus delivered and money paid I demanded from the register and receiver, and received, a descriptive receipt in full for all the land thus sold to me, which receipt is now in my possession, dated March 2, 1857. Having drawn No. 13 for office business, my office duplicates are dated on the 13th and 14th of March.

Assuming the entire accuracy of this statement, and that all the proceedings were in good faith, the committee does not see how the memorialists could acquire any right as against the adverse parties, (Messrs. McLaughlin and Felix,) who had applied to enter the lands bona fide at the General Land Office on the 5th of February, and whose application and warrants were then in the regular course of transmission by mail to Plattsburg. For, under the practice of the local office, as related by Mr. Birch, the respective applications of the memorialists could take no effect in law by the delivery of their several descriptive lists (so called) on the 2d of March.

1st. Because the lists were to be examined at some future time, with

a view to determine whether they conflicted with each other, and in case of conflict to settle priorities or adjust rival claims. Obviously, then, no right vested, nor was any contract of purchase or location consummated by the mere delivery of a descriptive list.

2d. The fact that afterwards a regular application was to be made, and was made, de novo, to enter the lands mentioned in the descriptive lists of March 2, 1857, shows that the delivery of such lists was but an informal request to the register, to be considered and answered in future, and not an application, in præsenti, to purchase or locate any particular tract of land.

3d. The persons who delivered these descriptive lists on the 2d of March were under no obligation (according to the practice here claimed) to pay the purchase money or deliver any warrant for the lands so described. The statement of James H. Birch, jr., is conclusive in this regard.

"Every applicant would be required to deliver a descriptive written list to the register; and, as soon as conflicts were settled, to deposit land warrants or money sufficient to pay for all land applied for and free from conflict."

Clearly, under such a system, one person might deliver to the register "a descriptive written list of all the lands in the district; and afterwards, at his leisure, raise money or obtain warrants, wherewith to consummate the entry of such particular tracts as are found most desirable, making no formal application as to the residue, and never paying for them. Nor would the case be different under this alleged practice, if the person who delivered a descriptive list should also, at the same instant, pay a sum equal to the purchase money, or furnish any number of warrants; because the application of the money or warrants to the particular tracts to be entered (out of the whole descriptive list) remained for future decision. It would be no more than constituting the register and receiver his private bailers or agents.

The proceedings at Plattsburg on the 2d of March, 1857, can have no legal interpretation, therefore, except this: Each applicant, for his own convenience, notified the register, by the delivery of a descriptive list, that he would, at a future time, whenever his case should come to be considered in its turn, make formal and due application for some or all of the lands therein specified, and, if then allowed to enter them, would furnish money or warrants wherewith to consummate the purchase or location. Such proceedings are not and never can be held conclusive as against third persons, who have actually made and consummated their entries of the same lands, in good faith before the periods at which the informal application comes to be considered.

Indeed, before the proceedings of the Plattsburg office on the 2d of March can be of any effect as against Messrs. McLaughlin and Felix, or any other stranger, it must be shown that the alleged practice had ripened into a usage, inasmuch as, clearly, it is not a practice authorized by law or the regulations of the department, as is now interposed for the assertion of alleged rights which (according to the records required by law and the regulations to be made and preserved) have no existence. As to the qualities of a usage such as here claimed, they are well defined in law; it must be certain, uniform, reasonable, and notorious. Two instances, three instances, twenty instances, merely

as such, cannot make a usage. The alleged practice at the Plattsburg office dates no further than June, 1856, as already mentioned, and not more than two or three cases are specified by the memorialists in which it would have come under the observation of the Commissioner of the General Land Office. Those two or three cases it is unnecessary to relate, since, in the opinion of the committee, they do not suffice to establish any usage as against Messrs. McLaughlin and Felix or the public at large.

In the present case, as we have seen, the descriptive lists of the several memorialists were not reduced to formal applications until after the 7th of March, 1857, when the formal, regular, absolute applications to enter of Messrs. McLaughlin and Felix reached the Plattsburg office and took complete effect.

In his statement, already quoted, James H. Birch, jr., alleges that he delivered to the register and receiver, on the 2d of March, "the full amount" due for the lands mentioned in his descriptive list, "in warrants," together with the amount of their fees in gold. "For the warrants thus delivered and money paid," he says, "I demanded from the register and receiver, and received, a descriptive receipt in full for all the land thus sold me, which receipt is now in my possession, dated March 2, 1857.” A copy of this "descriptive receipt" has been furnished to the committee:

"It is hereby certified that James H. Birch, jr., has this day applied, purchased, and paid for the following described lands, lying in the district of lands subject to sale at the land office at this place, and the duplicates for the same will [be] issued as soon as the business of the office will permit

[Then follows a specification of several tracts, containing, in all, 30,239 39 acres.]

Signed by James H. Birch, register, and H. Whittington, receiver, land office at Plattsburg, dated March 2, 1857.

It is difficult to reconcile the terms of this "receipt" with the transaction as described in Mr. Birch's memorial. He did not apply to purchase lands, in the usual sense, on the 2d of March, but only to locate warrants. He paid no money to the receiver, but (as he says) delivered certain warrants to the register. Yet the receipt declares that he "purchased and paid for" the lands in question, and that "duplicates for the same" were afterwards to be issued. Now, except in the case of a sale, no duplicate can be issued rightly; for that is an acknowledgment from the receiver, in duplicate, that the purchase money has been paid in coin, or in public securities or obligations to be returned and cancelled at the treasury of the United States. No such "receipt" as that exhibited can be appropriate in the case of an entry made under a land warrant. The only explanation, therefore, lies in the fact that Mr. Birch applied to enter the lands as an agent of other parties, resident in Kentucky, and took this "descriptive receipt" for his own security or accommodation. It seems to have been transmitted at once to his principals. As a paper by which to conclude the government, or third persons, it cannot be vindicated, because no such receipt is authorized upon the location of a land warrant, and no duplicate could ever have been issued, as

suggested therein, without a violation of law. It must be treated as a private memorandum or informal certificate.

Mr. Birch did not purchase the lands, nor pay for them; he delivered land warrants for location, and the written applications attached to those warrants, signed by himself, bear date the 13th of March. That application, so far as the rights of third parties are involved, must conclude him.

It will be observed that the committee lays no stress on the alleged attempt of Messrs. Felix and O'Reilly to enter these lands at Plattsburg, on the 26th of November, 1856. The testimony is clear that they had not selected any lands in Missouri at that time; their selection was made afterwards. The case must stand, and does well stand, upon the application to enter made by Messrs. McLaughlin and Felix, at the General Land Office, February 5, 1857, which became perfect and effectual on the 7th of March. The committee agrees with the decision of the Secretary of the Interior, September 4, 1857, in this respect:

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The Commissioner has not strengthened his case by referring to an immaterial fact, and attaching so much importance to an application which, if made in due legal form, gave them, at most, only an equitable right of entry. But the lands were vacant on the 7th of March. McLaughlin and Felix had then made a legal application and filed their warrants, and they were entitled to the lands; and every entry made subsequent to that date was permitted by the register and receiver in fraud of their legal rights."

So much of the Commissioner's letter to the register and receiver, dated July 10, 1857, as recognizes the attempted entry of November 26, 1856, was erroneous; but as the same lands were applied for, in due form of law, at the General Land Office, on the 5th of February, 1857, the error is an immaterial one.

In the voluminous correspondence laid before the Senate, in answer to the resolution of March 8, 1858, many collateral topics are discussed. These do not touch the merits of the present controversy, and the committee will dispose of them as briefly as possible.

The memorialists affirm that the Commissioner, the chief clerk, or some one connected with the General Land Office, is or was interested in the application of Messrs. McLaughlin and Felix; but this allegation has been completely disproved.

The Commissioner and the chief clerk are accused also of unfairness, partiality, suffering undue influence, and the like, but upon no grounds which the committee deem substantial, or even plausible. The decisions were all proper, and rightly made, and from them, of course, no sinister motive can be inferred.

It is said, furthermore, that the Commissioner had previously decided otherwise, in two cases of appeal from the Plattsburg office. The committee has examined those cases carefully, so far as they are stated in the correspondence, and has arrived at the conclusion that they were such in their circumstances, or so reported to the General Land Office, as to demand the application of altogether different principles. Nor does it appear that the peculiar methods of transacting business at the Plattsburg office were known to the Commissioner,

and, far less, were authorized or recognized by him. They are contrary to his express instructions of August 19, and October 12, 1856, as well as the general regulations of the department.

In his letter of instructions of the 19th August, 1856, to the register of the Plattsburg office, the Commissioner says: "If, as inferred from your statement, it has been the habit of permitting persons to register their names without at the same time filing applications for and designating the lands which they desired to enter, and where their names should be reached on the docket allowing them to make any number of applications, and to enter and locate any quantity of land they might desire, such proceedings are wholly unauthorized, and you will take care, hereafter, to avoid a recurrence to such a system. "You are referred, for further information relative to the proper method of conducting your official business, during a great competition to enter land, to the letter of the 12th ultimo from this office to the register and receiver at Council Bluffs, Iowa, a copy of which is herewith enclosed." In this letter, the Commissioner says: "In connexion with the subject, I herewith enclose a copy of a letter dated the 17th of June last, to the register at Fort Dodge, Iowa, and take this occasion to inform you, that in the administration of the land business of their district, it is the duty of the register and receiver to receive applications for the purchase or location of any lands in the district, subject to entry at private sale, in the exact order of the filing of applications and tender of the consideration, without restriction as to ranges, taking care not to allow a monopoly of purchase in favor of any one person, and not permitting each to purchase at one time more than the extent of an ordinary entry. Where greater quantities are desired by any one applicant, the party must take his turn according to the principle here laid down, until, from time to time, he may be accommodated, with proper regard to the equal privileges and rights which others also may have, to make purchases. Should occasion arise for restricting entries to ranges, for a limited period, it can only be done by the register and receiver, pursuant to express authority from the department, and after public notice."

In his letter of the 12th October, 1856, to the register and receiver at Plattsburg, the Commissioner says: "It appears from this letter" (letter of J. H. Birch, jr., attorney for Redan & White, to Commissioner) "that Martin W. Redan and James D. White applied to locate warrant No. 38,173 on the above described tracts, and were refused permission to locate the same, for the reason that, under a rule adopted by a former register, applications for about 100,000 acres had accumulated, and that the present register therefore refused to receive any further applications until those then on hand had been disposed of, and that the papers in this case are submitted for the purpose of ascertaining whether a register of a land office can properly refuse, at any time, to receive an application to enter a tract of land which is vacant, and to the entry of which there appears to be no legal objections. In reply, I have to state that it is the duty of a register to receive, and to act upon, and consummate, so far as his official action is required for that purpose, at the time of reception, all such applications to enter or locate lands subject to entry at private sale, as may be presented to