Opinion Concerning Swamp Lands in Bureau County, Illinois 
September 28. 1850, by an act of that date, Congress granted the whole of the ``swamp and overflowed lands, made unfit thereby for cultivation'' which remained unsold at that date, to the several States in which they were situated. By that act, upon the assumption that the data for doing so were in the Department of the Interior, the Secretary of that department was directed to make lists of those lands, and cause a patent to be issued for them to each State; and it was provided that the proceeds of said lands should be exclusively applied, so far as necessary, to the reclaiming of those lands by levees and drains.
June 22---1852, by an act of that date, the Illinois Legislature adopted a system for the man[a]gement of the Swamp lands, so granted, within the state. By this act the lands were granted to the counties respectively, and placed under their control with powerPage 353 to sell upon certain terms and limitations. Also by this act the Surveyors of the several counties were to select and designate the swamp lands in their respective counties, which they did, generally taking all the unentered lands. Meanwhile, the United States Land Offices remaining open, and having nothing to guide them, individuals continued to purchase lands within them, in many instances the same tracts which had been selected by the Surveyors as Swamp lands.
The deficiency of data in the Department of the Interior by which to designate the Swamp-lands from other lands; the very liberal designations made by the County Surveyors, and the numerous purchases made, and sought to be made, by individuals from the United States, of tracts claimed by the State as Swampland, led to much difficulty, confusion and embarrassment; even to the taking proof in the local Land Offices, whether particular tracts were or were not, in fact, Swamp land.
March 2, 1855 another act of Congress was passed intended to mitigate, if not entirely overcome this difficulty.
No single patent, as seemed to be contemplated by the first named act of Congress, ever issued; but on the 20th. day of October 1856, a Patent issued to the Governor of Illinois, for the Swamp lands in the Dixon Land District, which District includes the county of Bureau.
April 28, 1856, the Board of Supervisors of Bureau county passed, and entered of record a set of resolutions for the sale of the swamp-lands within that county, of which resolutions the paper hereto attached, marked (A) contains true copies.
In pursuance of those resolutions the ``Drainage Commissioner[''] of that county, made sale of those lands to various purchasers, taking notes, and giving certificates to said purchasers, of which notes and certificates, the papers attached, marked respectively (B) and (C) are blank forms. Some of the purchasers did, and some did not present their certificates and receive bonds as indicated. The paper attached, marked (D) is a blank form of the bonds given, and ready to be given.
February 18, 1857, some question having been made as to the validity of this sale, the Illinois Legislature passed an act ratifying and confirming it.
March 3, 1857, Congress passed another act, confirming a certain selection of Swamp lands, and directing the same to be patented; which ``selection'' so confirmed, was in fact the same, for part of the lands included in which, the Patent aforesaid had then already been issued.
Page 354The notes, as shown by the blank attached, are in common form, containing unconditional promises to pay.
Upon this state of facts, my legal opinion is asked upon the question, following:
``Can the sale of the Swamp Land, by the county, be inforced by the Courts?''
I should state the question, thus:
``Can the makers of the notes successfully defend suits brought upon them?''
Unquestionably they can not, unless they can allege and prove want, or failure of consideration. Neither of these can they do. No deception was practiced upon them. At the time they purchased, and made the notes, they had both constructive and actual notice of everything concerning the title, which really exists. Nothing new has come to light. The certificate received by each purchaser, refers to the resolutions of the Board; and those resolutions show upon what condition, and what alone, the purchaser can be relieved from his note. The condition is ``if the title of the County to any such tract, so contested, shall fail, suitable effort to sustain the same having been made by the purchaser, to the satisfaction of the ``Drainage Commissioner'' at the time of such contest, the County will repay to such purchaser the money, and cancel or release the note received therefor &c'' I understand no such contest has been made in any case; and until this shall be done, no successful defence to a suit upon any of these notes can be made.
If, by any means, any tract was sold, by the county, which was not granted to the State by the United States, the title to such tract would fail, but such case would be an exception. With such, or similar exceptions, if there be any such, the title to the lands sold by the county has not failed, and quite certainly, never will fail. Test it, by supposing practical cases. Suppose the purchaser takes possession---how, and by whom can he be got out? Will the United States undertake to put him out? Will the United States re-assume ownership, and sell, and give a Patent to some individual? Will the State do either of these things? Manifestly not. The idea of such possession ever being so disturbed is absurd. Suppose, then, a stranger squats upon the land, and the purchaser thus loses it, unless he can disposses the squatter. He brings his Ejectment; shows the acts of Congress, and the Patent of the United States to the State; the acts of the Legislature transfering the title to the county, authorizing a sale by the county, and afterwards confirming the sale actually made by the county, together with the conveyance by the county to himself; and his case is made out. Suppose the squatterPage 355 shall then offer to say, that by the acts of Congress, the proceeds of the lands were to be appropriated to the draining of the lands, and that this has not been done. Can a naked wrongdoer be allowed to alledge this? And if alledged, could it, at law, overturn the United States Patent? Was the Patent good, so long as the proceeds remained unappropriated, and bad after they were misapplied? A Bill in Equity, could not be for a moment maintained against the Patent, by a mere wrongdoer.
My opinion is, that the purchasers from the County, will never lose the land, unless it be by some fault of their own; and that they can not successfully defend suits brought upon the notes.
Springfield, Jany. 31, 1859--- A. LINCOLN---