Jurisdiction. This Court has jurisdiction in an appeal from the
Supreme Court of the State of Ohio in a case where was drawn in
question at the trial the construction of the act by which Virginia
ceded the territory she claimed northwest of the River Ohio to the
United States, and of the resolution of Congress accepting the deed
of cession and the acts of Congress prolonging the time for
completing titles to lands within the Virginia Military
Reservation, the decision of the Supreme Court of Ohio, having been
against the title set up under the acts of Congress.
Construction of the acts of Congress relative to the Virginia
reservation of military lands in Ohio.
Josiah C. Parker, the defendant in error, filed a bill in the
Court of Common Pleas of Brown County in the State of Ohio, praying
for an injunction, and that Cadwallader Wallace, the defendant in
error, should be compelled to release his legal title to one
thousand acres of land in the Virginia military district in the
State of Ohio, which Josiah Parker, the grandfather of the
complainant, had entered on or about 12 January, 1788, on part of a
Virginia military warrant, No. 1920, under which entry a survey was
made, but which survey, by the omission of the surveyor, was not
returned to the proper officer for record. The bill stated that the
defendant, Cadwallader Wallace, had caused part of the tract to be
located and had obtained a grant for the same, and upon the said
grant had prosecuted a writ of ejectment against persons in
possession of the land under the complainant.
The defendant held under a patent dated April 13, 1824, issued
to him in consideration of military services performed by Thomas
Parremore to the United States, a captain, for the war in the
Virginia line on continental establishment and in pursuance of an
Act of the Congress of the United States of 10 August, 1790,
entitled
"an act to enable the officers and soldiers of the Virginia line
on continental establishment to obtain title to certain lands lying
northwest of the River Ohio, between the Little Miami and
Sciota."
The survey on which
Page 31 U. S. 681
the patent was founded was dated 17 December, 1823. In an answer
afterwards filed to an amended bill, he says that the complainant
has no equitable claim to the land, because the entry made by him
is based upon a resolution warrant, which is not protected by the
act of Congress, and cannot therefore be a foundation on which to
base a valid entry.
The pleadings also exhibit other questions as to the nature and
validity of the surveys of the land. As no decision of the court
was given upon any of the questions presented by those parts of the
proceedings, they are omitted.
The petition of Josiah Parker, the grandfather and devisor of
the complainant, in 1783, to the Legislature of Virginia for an
allowance of land, and the proceedings thereon, were as
follows:
"To the Honorable, the general assembly: "
"The request of Josiah Parker humbly representeth that he was,
in October, 1775, appointed by the assembly major of the fifth
regiment on continental establishment; that he was, in August,
1776, promoted to the rank of lieutenant-colonel, and the April
following had the honor of receiving a full colonel's commission in
the same regiment, which he retained until August, 1778, when he
resigned it to General Washington on the banks of the North River
after the arrival of Compte D'Estaing and the French alliance. That
previous to all this, he raised the first company of minutemen on
the south side of James River, and was on actual duty at the Great
Bridge with his company until his promotion in the continental
line. That since his resignation, he has, on every invasion, been
employed against the enemy and with active and disagreeable
commands, with the rank still of colonel in the militia, which he
satisfied himself with, though inferior to the rank he held in the
army, as he felt the satisfaction of serving his country; and
during all this his services in the militia, he never received a
shilling of money of any sort from this state or the continent;
notwithstanding, by the act of assembly allowing a bounty of lands
to the officers and soldiers, he is precluded from any share,
because he did not serve three years in a continued line; that
nevertheless he is emboldened to request the assembly will allow
him a colonel's allowance of lands, because they have resolved that
Generals Stephens and Lewson should receive
Page 31 U. S. 682
theirs, and although each of these are general officers of the
militia, yet they were only colonels at the same time with your
petitioner, who remained longer in the continental army than either
of them."
"In the House of Delegates, Tuesday, 18 November, 1783: "
"Mr. Mann Page reported from the Committee of Proposition and
Grievances that the committee had, according to order, had under
its consideration the petitioner of Josiah Parker, to them
referred, and had agreed upon a report, and come to a resolution
thereupon, which he read in his place, and afterwards delivered in
at the clerk's table, where the same was again twice read and
agreed to by the house, as followeth:"
" It appears to your committee that in October, 1775, the said
Josiah Parker was appointed a major of the fifth regiment on
continental establishment, in which rank he acted until August,
1776, when he was appointed lieutenant-colonel, and in April, 1777,
he received a full colonel's commission in the same regiment, and
acted in that rank until August, 1778, when he resigned. It also
appears to your committee, that since that resignation of the said
Josiah Parker, he hath, upon every invasion of this state by the
enemy, been upon duty with the militia in the rank of colonel, with
the command of the whole militia on the south side of James River
after the invasion by General Philips, until the arrival of the
Count de Grasse. Resolved that the petition of the said Josiah
Parker, praying that he may be allowed the bounty in lands by law
given to a colonel in the continental line, is reasonable."
"Land Office, Military Warrant, No. 1920: "
"To the principal surveyor of the lands set apart for the
officers and soldiers of the Commonwealth of Virginia. This shall
be your warrant to survey and lay off, in one or more surveys, for
colonel Josiah Parker, his heirs or assigns, the quantity of 6,666
2/3 acres of land, due unto the said Josiah Parker in consideration
of his services for three years as a colonel in the Virginia
continental line, agreeable to a certificate from the governor and
council, received into the land office."
"Given under may hand and seal of the said office this 21 Nov.
in the year 1783. JOHN HARVIE, R. L. Office. "
Page 31 U. S. 683
The complainant also exhibited in evidence a patent for five
hundred and ten acres, issued to him by the United States as the
devisee of Josiah Parker, which patent, bearing date 1 February,
1827, recited that
"In consideration of military services performed by Josiah
Parker for three years a colonel to the United States in the
Virginia line on continental establishment, and in pursuance of an
Act of Congress of the United States passed on 10 August in the
year 1790, entitled"
"An act to enable the officers and soldiers of the Virginia line
on continental establishment to obtain titles to certain lands
lying northwest of the River Ohio between the Little Miami and
Sciota,"
"and other acts of the said Congress amendatory to the said act,
there is granted by the United States unto Josiah C. Parker,
devisee of the said Josiah Parker, a certain tract of land
containing 510 acres, situate between the Little Miami and Sciota
Rivers, northwest of the River Ohio on the waters of Red Oak and
Eagle Creeks, branches to the Ohio, being part of a military
warrant No. 1920."
The Court of Common Pleas of Brown county, on 26 September,
1826, ordered and decreed that the complainant's injunction for the
land aforesaid, and the costs of the suit at law, be rendered
perpetual, and that said defendant do, by deed duly executed,
within thirty days release to the complainant the land hereinbefore
described by metes and bounds, and in case of failure of said
defendant to execute such release, that then and in that event this
decree shall operate as such release, and it is further ordered and
decreed by the court that the defendant pay the complainant his
costs by him about his suit in this behalf expended, also his costs
about his defense in the action at law expended, within thirty
days, and in case of failure, that said complainant have execution
for said costs, and the parties are hence dismissed. And thereupon
the defendant, by his counsel, gave notice that he would appeal
from the decree aforesaid to the supreme court.
The Supreme Court of Ohio, at November term 1828, affirmed the
decree of the court of common pleas, and the defendant prosecuted a
writ of error to this Court.
Page 31 U. S. 686
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is a writ of error to a decree pronounced by the Supreme
Court of the State of Ohio, sitting in and for the County of Brown,
in a case in which the defendant in error was plaintiff. The case
must therefore be brought within the twenty-fifth section of the
Judicial act or this Court cannot take jurisdiction of it.
The plaintiff in error alleges that the construction of an act
of Congress was drawn in question on the trial and that the
decision was against the title set up under the act, and also that
the construction of a state law was drawn in question as being
contrary to an act of Congress and the decision was in favor of the
party claiming under the state law.
Josiah Parker obtained a land warrant from the land office of
Virginia for his services in the Virginia line on continental
Page 31 U. S. 687
establishment. The defendant in error having located the warrant
on lands in the military reserve and received a patent therefor,
instituted a suit in chancery against the plaintiff in error, who
held the same land under a prior grant, and obtained a decree for a
conveyance. This Court cannot examine the general merits of the
decree. Our inquiries are in this case limited to the question
whether the record shows that an act of Congress has been
misconstrued to the injury of the plaintiff in error or the title
of the defendant in error has been sustained by a law of a state
which is repugnant to a law of the United States. Both questions
depend on the construction of the act by which Virginia ceded the
territory she claimed northwest of the River Ohio to the United
States, of the resolution accepting the deed of cession, and of the
acts of Congress prolonging the time for completing titles to lands
within the Virginia Military Reservation.
The deed of cession was executed by the members of Congress then
representing the State of Virginia on 1 March, 1784, in virtue of a
power conferred on them by the act of cession, which act it
recites. One of the conditions on which the cession is made is, 1
Laws U.S. 474,
"That in case the quantity of good lands on the southeast side
of the Ohio . . . which have been reserved by law for the Virginia
troops or continental establishment, should . . . prove
insufficient for their legal bounties, the deficiency should be
made up to the said troops in good lands to be laid off between the
Rivers Sciota and Little Miamis on the northwest side of the River
Ohio in such proportions as have been engaged to them by the laws
of Virginia."
The deed was accepted by Congress according to its terms. The
act of cession to which the deed refers was passed on 20 December,
1783.
In his answer to an amended bill filed by the plaintiff in the
state court, the defendant says
"That if the complainant's entry does contain that certainty and
precision which the law requires in order to constitute a valid
entry, yet the complainant has no equitable claim to the lands in
question, because, first, said entry is based upon a resolution
warrant, which is not protected by any act of Congress, and cannot
therefore be a foundation on which to base a valid entry. "
Page 31 U. S. 688
The warrant to which the answer refers is in the usual form, and
does not purport to have been issued in virtue of a resolution. But
the warrant did in fact issue on a resolution which appears in the
proceedings in the cause.
It appears that Colonel Josiah Parker presented a petition to
the General Assembly of Virginia in which he stated himself to have
served two years and ten months in the Virginia Line on continental
establishment, after which he resigned his commission as a colonel
in the army. That since his resignation, he had been called into
service as colonel, commanding a corps of militia, during every
invasion of the state. He prays that the assembly will grant him a
colonel's allowance of lands. This petition was referred to a
committee, whose report stated the facts and concluded with the
following resolution.
"Resolved that the petition of the said Josiah Parker praying
that he may be allowed the bounty in lands by law given to a
colonel in the continental line is reasonable."
This resolution was approved by the Senate and was passed 20
November, 1783.
In March, 1807, Congress passed an act extending the time for
locating Virginia military land warrants, which enacts
"That the officers and soldiers of the Virginia Line on
continental establishment, their heirs or assigns entitled to
bounty lands within the tract reserved by Virginia between the
Little Miami and Sciota Rivers, for satisfying the legal bounties
to her officers and soldiers upon continental establishment, shall
be allowed a further time,"
&c. This act was continued by subsequent acts, so as to be
in force when the survey was made under which the complainant in
the state court obtained his decree. Does the act cover his
case?
We think it extends to every case which comes within the
reservation made by Virginia in her act of cession. The deficiency
of good lands on the southeast of the River Ohio having been
admitted by Congress, the inquiry is whether the warrant granted to
Josiah Parker is among those for which the reserve on the
northwestern side of that river was made.
The resolution grants the land to Josiah Parker as a colonel in
the continental line. At the time it was passed, Virginia possessed
the territory in which it was located in
Page 31 U. S. 689
absolute sovereignty. The deed of cession had not been executed
nor had the act been passed by which that deed was authorized.
Congress, by accepting the cession, admitted the right to make it,
and that right has never since been drawn into question.
The resolution then gave to Josiah Parker all the right it
purported to give. What was that? "The bounty in lands by law given
to a colonel in the continental line." By this resolution Josiah
Parker was placed by the State of Virginia on precisely the same
footing with a colonel who claimed under the act which had
previously been passed. Had the cession never been made, no
distinction could have been taken between them. The officer by whom
the warrant was issued perceived no distinction, and the warrant is
expressed to be "for his services for three years as a colonel in
the Virginia continental line." To discover what services the
legislature received as an equivalent for two months of this time,
services performed at the head of corps of militia, we must look at
the petition and the report of the committee.
But the legislature at that time possessed the same power to
bestow its bounty on an officer who had performed the services
stated in Colonel Parker's petition, and in the report of the
committee, as on one who had completed his three years in the
continental line. They possessed the same power to bestow that
bounty on an individual in the form of a resolution as on their
officers generally in the form of an act. The one conferred the
same rights as the other, and was equally obligatory on the state.
Had the lands been retained by Virginia, no distinction could have
been made between these claims, and it is impossible to perceive
any reason why she should have distinguished between them in the
reservation contained in her act of cession. Do the words of the
act set up this distinction?
They are
"that in case the quantity of good land on the southeast side of
the Ohio, which have been allowed by law for the Virginia troops
upon continental establishment, should . . . prove insufficient for
their legal bounties, the deficiency should be made up,"
&c.
It cannot be doubted that Colonel Parker's warrant might have
been located on the land "reserved by law on the
Page 31 U. S. 690
southeast side of the Ohio for the Virginia troops upon
continental establishment."
This reservation is made in general terms. It is not connected
with the allotment of specific quantities for specific services.
Provisions were afterwards made for this subject, and those
provisions varied at different times. At one time, service was
required during the war; by another act, three years' service
entitled the officer to his bounty, and an increased bounty was
allowed for those who had served six years and upwards. Officers
who resigned after serving three years were entitled to the bounty
by an act which was passed so late as the year 1782. Particular
resolutions were passed afterwards in favor of officers who were
deemed by the legislature to have performed services as meritorious
as if they had remained in the regular army for three years. All
these warrants were equally entitled to be satisfied out of the
land "reserved by law on the southeast side of the Ohio for the
Virginia troops on continental establishment." They were equally
"legal bounties," equally bounties "which had been engaged to them
by the laws of Virginia" before her cession of the territory
northwest of the Ohio, for a resolution receiving the assent of
both houses is a law as operative as an act of assembly.
If, then, under the laws of Ohio we may consider the petition of
Colonel Parker and the report of the committee as part of the
record in this cause, the court of Ohio does not appear to us to
have misconstrued the act of cession or any act of Congress.
The decree of the Supreme Court of the State of Ohio sitting
in and for the county of Brown is affirmed with costs.
This cause came on to be heard on the transcript of the record,
from the Supreme Court of the State of Ohio sitting in and for the
County of Brown, and was argued by counsel, on consideration
whereof it is ordered, adjudged, and decreed by this Court that the
judgment and decree of the said supreme court in this cause be and
the same is hereby affirmed with costs.