James Madison Papers

To James Madison from William Harris Crawford, 2 September 1816

Department of War September 2. 1816.

Dear Sir,

The Commissioner appointed under the act authorizing the payment for property lost, captured, or destroyed by the enemy &ca., has suggested a doubt under the 9. section of that act, whether the term Military deposite, embraces the case of occupancy by a military force, so as to entitle the owner to compensation for the destruction of the houses or buildings thus occupied.

The occupancy of buildings as a deposite for military stores, ordinarily must have been the result of convention, and on frontier stations, the destruction of them by the Enemy, must frequently have been in the contemplation of the parties.

The occupancy of buildings by a military force, especially in presence of an enemy, or upon a frontier line, the scene of military operations, would frequently be the result of necessity, and not of compact, where nothing has been stipulated, and where of course the possibility of destruction by the enemy, cannot have been provided for, in favor of the owner. I should, therefore, be in favor of a liberal construction in this case, inasmuch as an adherence to the letter, will embrace cases less entitled to the provision granted by that section than those which would be excluded.

Mr. Lee expects precise instructions upon this point, and will not proceed in any case involved in this doubt, until they are received.

Enclosed are several papers submitted to this Department by the Commissioner of the General Land office.

It appears to me, that there is no necessity for taking any notice of the claims of the Indian Warriors, in surveying the lands. The claimant may be authorized to select four quarter sections adjoining each other, and if judged necessary, forming a square, embracing his improvements. This would prevent the necessity of fractions, and supersede the necessity of running any other lines than those of the sections. To meet the case stated, of the habitation being on one side, and the plantation on the other of the river, the party should have the option of selecting on either side; and perhaps the right to select an oblong form, so as to include both, would not be unreasonable. If this proposition is not thought unreasonable in this case, it might be extended to all cases where two plantations are owned by a warrior, but in no case to exceed four quarter sections in a right line.

Some measure must be adopted before the sale of the land to ascertain the persons entitled to the provisions of the treaty, as the evidence now possessed is believed to be insufficient. Perhaps an Agent will be appointed in time to perform this service.

P. S. Upon examining the treaty, it declares that the mile square shall include the Plantation as near the Centre as practicable. If it is to be executed literally, special Surveys must be made. The Treaty makes no provision for the families of deceased Warriors, unless a liberal construction is given to it.

DNA: RG 59—LSP—Letters Sent to the President.

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