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According to this evidence, the Lieutenant Governor of Upper Louisiana was not a sub-delegate within the intention of the ordinance. Nothing can be more clear, than that a concession of lands by a Lieutenant Governor, who had not been appointed a sub-delegate by the authority prescribed in the recited section of the ordinance, can be allowed to possess any validity if that ordinance be considered as having been in force.
The House will perceive that the proposition which the Judge was maintaining, was, that the royal order of 1754 was not in force in Louisiana. This first argument is, that the great and almost sole purpose of that order was to make sales of lands for revenue, and not gifts. Whereas, in Louisiana, lands were given to encourage settlement and cultivation.
The second argument is, that, if that order had been there in force, the sub-delegate must have been appointed in conformity with it, that is, by the Viceroys and Presidents of Audiencias, and with the other solemn sanctions thrown around that appointment by that order; and that the sub-delegate, so appointed, would also have had the important power communicated by that order, of sub-delegating his powers to others: whereas, it appeared by the evidence in the case of Soulard, that the Lieutenant Governor was not appointed by those authorities; that his appointment was accompanied by no such sanctions; and that he had no power of sub-delegation. The conclu. sion of the Judge, therefore, was, that the Lieutenant Governor was not a sub-delegate, deriving his powers from the order of 1754, and that the powo ers of a sub-delegate could not be asserted for him, under the authority of that order.
It is submitted to the House, that this train of reasoning is entirely fair, and the conclusion safely and candidly drawn, and that nothing can be more unlike than the impression which would have been made by a fair representation of the Judge's opinion, and that which must have been made by the second charge in the article of “ A Citizen," who gives a result in his own language, in which he presents an absurdity to the mind of a reader, not otherwise informed, and which absurdity he imputes as an assumption, to the Judge.
The third assumption imputed to the Judge, is, “that O'Reilly's regulations, made in February, 1770, can be considered as demonstrative of the extent of the granting power of either the Governor General, or the sub-delegates under the Royal order of August, 1770.
The House will be pleased to observe, that, in the - Missouri Advocate and St. Louis Enquirer," in which this article first appeared, the dates of February and August were printed in italics, though this is not noticed in the printing of the report of the committee. The fact is important, because it shows the manifest design of the writer to call the attention of the reader to the absurdity imputed to the Judge, of considering the previous regulations of O'Reilly as demonstrative of the extent of the subsequent order of the King.
Now, although thc recent production of the order of August, 1770, has rendered it manifest that this order has made no addition to the regulations of O'Reilly, and that, in point of fact, there would have been no mistake even if the Judge had taken the ground imputed to him: yet, as the extent of the order of August, 1770, was not known at the time of the decision, the assumption imputed to the Judge would have been an absurdity, and was obviously intended by the publication to be held up to the community as an absurdity. But the imputation is unjust; the ground taken by
the Judge, and the reasoning in support of it, are to be found in pages 12 and 13 of the report of the committee.
The effect of that reasoning is this: that, although it was unknown what power or discretion that order vested in the Governor General, yet, as grants continued to be made in conformity with the regulations of O'Reilly, the fair inference was, that those regulations were not in conflict with the subsequent order. The language of the Judge on this subject, in page 13, is this: “ that the regulations of O'Reilly are of a date anterior to the order of the King, of 1770, does not appear to affect their authority. There would not, necessarily, be such a repugnancy between this order and those regulations, as to annul the latter. The subsequent sanction of these, and the presumption of their being authorized, thence arising, must be considered sufficient to give them the authority of law, whether the power to make them was comprised in the general and extraordinary powers given to the Governor General O'Reilly, previous to the order of 1770, or not."
This consonance between the regulations of O'Reilly of February, and the Royal order of August following, which was, at the time, a mere inference of the Judge, by reasoning, has since proved, by the production of the order, to have been the fact. But, apart from this consideration, the Judge submits it to the candor of the House, whether his reasoning upon the subject, as found in his opinion, is fairly and respectfully, or even decently, presented by the third charge in the article of “A Citizen.”
The next assumption imputed to the Judge, is in these words: “4th. That the royal order of August, 1770, (as recited or referred to in the preamble to the regulations of Morales, of July, 1799,) related exclusively to the Governor General.”
The court did not assume or decide, that the order of 1770 related exclusively to the Governor General; nor did it exclude the idea that the order might have related to others.
The words of the opinion, are: “We have the testimony of Morales, the intendant, in the preamble to his regulations, that the power to grant lands belonged to the civil and military government, after the order of the 24th of August, 1770. The powers of the civil and military government both centered in the Governor General. To him belonged the power to divide and grant lands in virtue of this order.”
It is submitted, that, to this extent, the inference is fairly drawn from the preamble of Morales. Had the Judge carried his inference to the extent imputed by the charge, it would have been absurd; and it does not mitigate the contempt intended by the charge, that the order, since received, would have justified the inference to its whole extent; because, at the time of the decision, the precise character of this order was unknown, and was generally believed to have been more comprehensive than it has since been found to be.
The next assumption imputed to the Judge, is in these words: 5th. “That the word " mercedes,” in the ordinance of 1754, which, in the Spanish language, means “gifts,” can be narrowed by any thing in that ordinance or in any other law, to the idea of a grant to an Indian, or a reward to an informer, and much less to a mere sale for money."
The court made no such assumption. This misrepresentation was manifestly intended to mislead; and the terms in which it was expressed, can leave no doubt of the contempt intended to be thrown upon the court by the charge.
The only light in which this charge could have struck the mind of the reader of the article, is this: Mercedes, in the Spanish language, means gifts, and nothing more; the ordinance authorizes the officer to make gifts without any reservation; and yet this sapient Judge has decided that this unlimited power to make gifts, authorizes and means only gifts to Indians or rewards to informers; and moreover, that gifts means a sale for money. That such must have been the understanding, and was intended by the writer to be the understanding of every reader of his article, must be obvious to every candid mind; and yet there is not one word of the charge thus imputed to the Judge, which is founded in truth.
To enable the House to appreciate justly the character of this misrepresentation, it is proper to remark, that the word mercedes occurs in the preamble to the royal regulation of 1754, of which there is a translation in the appendix to the land laws, compiled under the resolution of this House, page 973, and where it will be observed that this word mercedes is translated, not gifts, but grants. It is the closing sentence of the preamble, and is in these words: “I have therefore resolved, that in the (mercedes) grants, sales and compromises of royal cultivated and uncultivated lands, now made, or which shall hereafter be made, the provisions of the regulation (this regulation) shall be faithfully observed and executed.” This translation was made by a person chosen by the government, who, of course, had no inter est in perverting the sense.
In Col. White's collection, the word mercedes is rendered by the same English word grants. In the government translation before the court at the time of the decision in Soulard's case, it was rendered grants. The sense of the word, it is to be presumed, like that of all other words which have more than one meaning, depends on the subject to which it is applied, and the connexion in which it is found. In the present case, we see that the translator of the government considered it, when applied to the disposition of the royal lands, to mean grants; and his view of the subject is strongly countenanced by the general character of the ordinance, and especially by the first sentence of the section which immediately follows the sentence just quoted, where, in the general definition of the powers of the sub-delegate, the word mercedes is dropped. The sentence is this: “ That, from the date of this, my royal order, the power of appointing sub-delegates Judges to sell and compromise for the lands,” &c. The Judge has not the command of any law dictionary of the Spanish language, to ascertain the technical sense of that word.
In the general dictionaries the sense is various. Baretti, (octavo edition, London, 1809,) defines merced to mean courtesy, favor, kindness, reward; and in the phrase annexed to bis definition, as explanatory of the last sense, he has thiş: “Servira un senor a merced, to serve a great man without any salary, and to be rewarded at his pleasure.” Cubi, (Baltimore, 1823, duodecimo,) defines merced to mean wages, gift, pleasure. Gallet, in his Spanish, French, and Latin Dictionary, (Lyons, 1790, quarto,) defines it first salaire, prix, du travail. Latin merces; i. e. salury, price of labor, wages, and next Grace, bienfait accorda par le roi. Latin Gratia, i. e. favor, benefit accorded by the King-kindness.
Now it is of a word whose significations are thus various, and which, in the very instance before the court, had been rendered, by the translator of the government, grants, that the author informs his readers the meaning is gifts; thus presenting the idea that this was the only and undisputed meaning of the word: and this unwarrantable assumption he makes for the purpose of caricaturing the opinion of the court into a revolting absurdity.
It will be found, on reference to the opinion itself, that the argument of the Judge is this: The royal order of 1754, was, according to my judgment, not in force in Louisiana, but if you insist that it was, and that it must govern this case, you must bring the case within the ordinance. Your argument is, that the word mercedes, in the preamble, brings the case within it. To which I answer. 1st. That the preamble, in which this word is found, neither gives nor grants any thing, itself, nor directs any to be given or granted by others; it is mere recital, leading to the regulations which follow: 2d. That the word mercedes does not inevitably mean gifts; it has been translated by the officers of the government, grants; it is capable, also, of being translated rewards. It is a word, therefore, at best, of equivocal import. But whether it mean grants, rewards, or gifts, the preamble ble declares, that all such as shall thereafter be made, shall be made in conformity with that ordinance; but in looking through the ordinance, you show the court no article which authorizes such a gift as this.
There is enough in the ordinance to satisfy the word mercedes in either of the significations of which has been given of it: if it mean grants, it is satisfied by those articles which regulate the grant of lands on sale and composition: if it mean rewards, it is satisfied by those rewards presented by the 7thand 8th articles, which offer rewards to those who give information of intruders on the public lands: if it mean gifts, it is satisfied by the second section of the ordinance and the laws 14 and 15 cited therein, which authorize gifts to the inhabitants of towns for pasturage and commons, according to their wants, and to the Indians; but in neither sense do you show any part of the ordinance which authorizes a gift like that which you claimed for Soulard. Reference is made to pages 11 and 12 of the report, for 'the opinion of the court on this subject; and it is worthy of observation, that the author has entirely omitted in this charge, “the gifts to inhabitants of towns for pasturage and commons, according to their wants," which the court admitted might be made under the ordinance. Why it was omitted, is obvious enough; the insertion of such an exception might have put the reader on further inquiry, and would,, moreover, have destroyed the piquancy of the ridicule which arises from grouping together, in one short pithy sentence, Indians and informers as the favored objects selected by the court for the display of the royal bounty of Spain.
The court is next charged with erroneously making the assumptions
6. “That O'Reilly's regulations were in their terms applicable, or ever were, in fact, applied to or published in Upper Louisiana."
7. "That the regulations of O'Reilly, have any bearing on the grant to Antoine Soulard, or that such a grant was contemplated by them.”
8 6. That the limitation to a square league of grants to new settlers in Opelousas, Attacapas, and Natchitoches, (in the 8th art. of O'Reilly's regulations,) prohibits a larger grant in Upper Louisiana.”
In the argument of the cause, no question was raised, relating to the publication of O'Reilly's regulations in Upper Louisiana; nor does the opinion contain any thing relating thereto; nor does it convey an idea that Soulard's grant was contemplated by these regulations. Before reference is had to that part of the opinion to which these statements relate, it should be observed, that the object of the reasoning of the court was to remove all presumption of the legality of the concession, then in question; by showing that an authority to make such a concession, either in the form of law, or otherwise, was necessary to its validity: and that the provisions of the regulations of O'Reilly, and also the general policy of the Spanish Government, as evinced by those regulations, and the regulations of Gayoso and Morales, collectively, did not permit a belief in the existence of any such authority. That, admitting that the concession then before the court, considered alone, would raise a presumption of its own legality; yet such a presumption would continue only so long as it should be unopposed by a presumption of a higher nature; and that the regulations mentioned, being the acts of the supreme authority in the province, the presumption arising in favor of their legality, was a presumption paramount to that arising in favor of the legality of the single act of the Lieutenant Governor, in making the concession: that two incompatible presumptions could not both be true: that the weaker could not prevail against the stronger; and that the stronger must prevail against the weaker.
' It was in the application of this course of reasoning that the court, in its opinion, adverted to several of the provisions contained in the regulations of O'Reilly, of Gayoso, and Morales, to show that those provisions evinced a policy and intention on the part of the Spanish Government, in relation to the disposition of the soil in Louisiana, not to be reconciled with the idea that any law existed, authorizing the grant or confirmation of the claim, then under consideration, even though O'Reilly's regulations were not intended to apply to Upper Louisiana, then known by the name of Illinois. But certainly it is not insinuated in the opinion, that a limitation of a grant to a league square in Opelousas, &c. prohibits a larger grant in Upper Louisiana. The doctrine of the opinion is, that a prohibition was not necessary to prevent such larger grant, but that a positive authority to make it must be shown. Whereas, the charge of error implies the admission of the court, that the right would exist, but for the prohibition. If, indeed, the power had primarily existed, or been previously conferred, a prohibition might have been necessary to prevent its exercise, but that it had not been conferred was an inference which the court could not resist; and that it did not primarily exist, was an assumption of the court, not controverted at the bar. With regard to the 8th charge, the court did not assume that the limitation of grants to a square league to new settlers in Opelousas, Attacapas, and Natchitoches, (in the 8th article of O'Reilly's regulations) prohibits a larger grant in Upper Louisiana. The question was not at all what those regulations prohibited, but what they authorized. The court held the position that O'Reilly's regulations, by their terms, extended to the whole of Louisiana: that the powers of the inferior officers were to be sought for in those regulations, and that when a power was claimed for them beyond those regulations, (which covered the period of the alleged grant to Soulard) that power must be shewn in the form of law or otherwise. On the hypothesis that O'Reilly's regulations constituted the only law on the subject at that period, the Court held that they did not contain the power in question; nor was it pretended that they did.
In reasoning on the probable existence of a tacit power to make the large grant in question of 10,000 arpens, the court say; [pages 13, 14, of the report] "upon what reason is it to be believed that the Governor General intended to authorize grants of land in Upper Louisiana, upon principles different from those upon which grants were to be made in every other part of the province? Upon what reason were grants of land to be limited in