2. What is confirmed by said proviso to missionary stations?
The hon. gentleman, after an attentive examination of the first question, says: “I am of opinion that the proviso of the first section of the act of 1848 conferred an immediate title right upon all the societies then within its provisions. Here is a confirmation of title immediately operating proprio vigore for the benefit of all who should at that date be within its provisions.”
For the construction of the law he refers to the opinion of Attorney-General Bates, May 27, 1864, of Secretary Harlan, and the Commissioner of the General Land Office in his instructions to the Surveyor-General, which opinion has never been anywhere seriously questioned. His final conclusion is: “I am satisfied that on the 14th of August, 1848, there was existing a missionary station of St. James.”
This opinion is so well established by the documentary evidence and the opinion of the gentlemen above quoted that there cannot reasonably be the least doubt in the mind of any candid man as to the existence of the St. James’ Mission on the 14th of August, 1848—a fact acknowledged by all, irrespective of party or creed.
Let us now come to the second question, about what is confirmed by the proviso.
Here the hon. gentleman experiences some uneasiness in regard to the words land now occupied of the proviso. He knows not exactly what they mean. He is not ready to say whether in every case “all the land claimed ought to have been enclosed, cultivated, built upon, or the like.” Then he speaks of “stakes or other marks,” and says that “for the liberal purposes of the proviso (?) he would give the language the most liberal construction, but knows of no rule so liberal as to hold land occupied which has never been included in any inclosure, etc.” (He had a little before said he was not ready to require in every case enclosure of the land; it is only a trifling contradiction!) Why should he be so troubled about “enclosure, stakes, etc.”? Had he not before his eyes the following rules, given by the Commissioner of the General Land Office to the Surveyor-General in 1853, to direct him?
“1. Such provision is understood to grant 640 acres to each separate and distinct missionary station referred to.
“2. In order to comply with the terms of the grants, ... it will become necessary to cause to be made a special survey of a square mile, which shall include the land occupied with the buildings, and improvements in the centre, as nearly as may be.”
These rules are undoubtedly plain and clear, and no candid man can deny that the intentions of Congress in granting 640 acres to each missionary station were as well, if not better, known to the commissioner in 1853, as they can now be known after twenty years. He knew that it was not as an alms, but in consideration of the services rendered by the missionaries in laboring to civilize and christianize the Indians, that the grant was made by Congress. The same view has been invariably taken by all his successors in office, by all the occupants of the Department of the Interior, and all the Attorney-Generals from 1853 to 1872. Accordingly, all cases of missionary stations have been settled whether they were fenced or not. The Methodist Mission at the Dalles in Oregon, received from the government $20,000 for a portion of its claim, which was not fenced in 1849, and had never been before. The title of the Presbyterian Mission at Walla Walla, and many others which were in the same condition, were readily acknowledged and granted. Should not all these incontrovertible facts have convinced the Hon. Assistant Attorney of the true meaning of the words “the land now occupied”? But they did not.
Yet notwithstanding his apparent disposition “for the charitable purpose of the proviso to give the language the most liberal construction,” he cannot go so far as went all the secretaries, the attorney-generals, and the commissioners in office during the course of the twenty previous years. He seems to have been sent to teach them that they all have erred in the interpretation they have given to the proviso, and accordingly he sets himself up as a reformer. Therefore, grounded on his far superior legal acquirements, he hesitates not to say: “I am unable to see how Commissioner Wilson reached the conclusion in his instructions to the Surveyor-General. It is in my opinion an erroneous construction of the proviso.” The Hon. Mr. Wilson, as well as all the other hon. gentlemen who approved his construction, will no doubt be much flattered by the compliment.