The Southwestern Historical Quarterly, Volume 26, July 1922 - April, 1923 Page: 57
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Life and Service of John Birdsall
Republic cleared of Indian claims, and subject to the disposition
of our own citizens, is very plain-but that they also are of right
entitled to a resting [place] and suitable provision in the country
where their lot has been cast is equally plain, and, whatever may be
the disparity between them and us in point of intellegence, power,
and social condition, they have the same right as ourselves to
the benefit of those great principles of natural justice and equity,
which are immutable and universal.
I have been favored by Chief Justice Collingsworth with a
perusal of the note of his opinion on this subject, and fully con-
cur in all the views he presents.
With great respect Your Obdt Servt
To President Houston
Sir, In reply to your Excellency's note requiring my opinion
whether a Judge of the District Court can compell the Commis-
sioners of the County land boards, by mandamus, to issue certifi-
cates to persons whose claims have been rejected by the boards,
and whether the proof by the applicant and witnesses to estab-
lish his claim before the boards can be taken upon interrogatories
under the order of a Judge, and the Commissioners be required
to act upon it, I have the honor to state, in answer to the first
inquiry, that the boards of Commissioners in hearing and decid-
ing upon a claim presented to them, act in a judicial and dis-
cretionary capacity-they are to hear and weigh the proofs offered,
and if satisfactory to pass the claim, otherwise reject it.
It is a well established rule that whenever a discretion is al-
lowed an officer or board of officers in acting upon 'any matter,
their judgment or decision cannot be controlled by the writ of
Besides this in the case of the land Commissioners a specific
remedy is given the party claiming to be aggrieved, by appeal to
the District Court, under the 16th section of the law.
In answer to the 2nd Inquiry, my opinion is that the land law
contemplates a personal appearance of the claimant and his wit-
nesses before the board of Commissioners in all cases, and relies
upon this as the most efficient and important safeguard against
frauds and impositions. The phraseology of the law fully jus-
tifies this construction and its policy certainly would require it.
With great respect your obdt servt
Houston 30th Apl 1838
'Some twenty-five additional 'Birdsall letters and documents are to be
found in various collections in the State Library. The most important
,repositories are Letter Book No. 2, transferred from the State Department;
the Lamar Papers; and Domestic Correspondence.
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Texas State Historical Association. The Southwestern Historical Quarterly, Volume 26, July 1922 - April, 1923, periodical, 1923; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth101084/m1/63/: accessed April 30, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting Texas State Historical Association.