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quantity, in Natchitoches, Attacapas, and Opelousas, and unlimited in Upper Louisiana? And what policy dictated the limitation of grants in the latter place, to 800 arpents, which we find in the 9th and 10th sections of Gayoso's regulations, and the first section of the regulations of Morales, if, before these regulations, there was no reason for a limitation? Was not the extension of settlement and the cultivation of the soil, as much to be en. couraged by the distribution of land in Upper Louisiana, as elsewhere in the province? Why, in Upper Louisiana, should grants have been made without regard to the means of the cultivator, when those particulars were to be attended to with strictness in every other part of the province? The regulations of O'Reilly were made for every part of the province, &c.
This is the passage cited to support the 8th charge. Is there any error in the reasoning? But, above all, is there any thing to countenance the assumption imputed to the Judge that the limitation to a league square in one part of the Province prohibited a larger grant in another?
The whole of the opinion to which these three charges are supposed to allude, is to be found in the pages referred to, and further comment is unnecessary to show how grossly they misrepresent the opinion of the Judge.
The next assumption imputed is this:
9. That the regulations of the Governor General, Gayoso, dated the 9th September, 1797, entitled “ Instructions to be observed for the admission of New Settlers," prohibit, in future, a grant for services, or have the effect of annulling that to Antoine Soulard, which was made in 1796, and not located or surveyed until February, 1804.
This again must be met by a fat denial-neither of these assumptions is contained in the opinion. With regard to the first branch of the charge, the author, in order to keep up the color of absurdity which he is seeking to fasten on the Judge, continues to confound the absence of authority with positive prohibition. Thus, in every instance in which the Judge has said that these regulations contain no authority to make the grant in question, the author has made him say that they positively prohibit it; to prove the falsity of which, and thus to convict the Judge of error, the reader of “A Citizen" had only to inspect the regulations themselves. The author's position seems to be, that the authority to make these large grants is to be presumed, without proof, and must be presumed to continue until positively prohibited. The Judge, on the contrary, held that the authority must be proved, and wherever he has stated that the laws placed before him do not prove the authority, the author represents him as saying that these laws prohibit it. But the prohibition does not arise from those regulations, and is not to be sought for on their face, where the author represents the Judge as saying it was to be found. The prohibition arises from considerations extrinsic to the regulations, and antedecent to them. The King of Spain being the owner of those lands, no one could grant them except that Sovereign, or some one authorized by him. The question was, who was authorized? The court said, that the only laws which had been brought to its view, did not show the authority; and hereupon the author represents the court as saying, that those laws show a prohibition. Is this a true statement of the court's position? Let candor, or even charity, answer the question with reference to such a statement made by a counsel in the cause.
The second branch of the charge is still more gross: The court is represented as assuming, that the regulations of Gayoso, in 1797, annulled the prior grant to Soulard, which was made in 1796. The court made no such assumption. While the author was using the liberty of the press to parody, according to his own taste, not only the language, but the meaning of the court, he would have made a much nearer approach to the truth of the case, by representing the court as assuming that Soulard had voluntarily abandoned his claim by failing to comply with one of the regulations of Gayoso's, as well as Morales' regulations. • To expose the misrepresentations of the charge, it is proper to observe, that the King of Spain, by one of the laws in the Recopilacion, (law 11, . page 969, Land laws,) required all persons to whom lands had been distributed, to take possession within three months, on pain of forfeiture. Gayoso and Morales, pursuing the example of their Sovereign, made successively similar regulations in Louisiana. The 14th of Gayoso required all to whom lands had been granted, to take possession within one year, and to make a specified progress in cultivation in three years.
The 4th of Morales is of the same character. Soulard had disobeyed this command. Morales, also, pursuing the policy of his master in another respect, (see Law 14, p. 969–70, Land laws,) had required all holders of incomplete titles to come in and complete them within six months, under pain of forfeiture. Soulard also, disobeyed this call, and the reasoning and conclusion of the court on this subject was, that, if he had ever had title, he had forfeited it by his refusal to obey those calls. The House must perceive, that, under this explanation, the position of the court, if not impregnable, is not, at least, absurd upon its face. But, “A Citizen” gave no such explanation to his readers; on the contrary, the result, as he presents it, places the court in the predicament of giving a retro-active effect to a regulation which was, in truth, prospective, and which the court admitted to be prospective, and exhibits the court as directing the annulling power of the regusation backwards in direct action on the grant, instead of forwards on the omission to obey the command of the regulation. :
That passage of the court's opinion to which this objection of the “Citizen” points, is found in pages 18, 19, of the report of the committee, and Judge Peck invites a comparison of the whole passage with this charge, that the House may test the ingenuousness of the representation.
· The next assumption imputed to the Judge, is this: “10. That the complete titles made by Gayoso, are not to be referred to as affording the construction made by Gayoso himself, of his own regulations.”
13. « That the complete titles (produced to the court,) made by the Governor General or the Intendant General, though based on incomplete titles, not conformable to the regulations of O'Reilly, Gayoso, or Morales, afford no inference in favor of the power of the Lieutenant Governor, from whom these incomplete titles emanated, and must be considered as anomalous exercises of power in favor of individual grantees.”
14. 6 That the language of Morales himself, in the complete titles issued by him, on concessions made by the Lieutenant Governor of Upper Louisiana, anterior to the date of his regulations, ought not to be referred to as furnishing the construction which he, Morales, put on his own regulations.”
15. “ That the uniform practice of the Sub-Delegates or Lieutenant Governor of Upper Louisiana, from the first establishment of that Province, to the 10th March, 1804, is to be disregarded as proof of law, usage, or custom, therein."
These charges are all presented together, because they are of kindred eharacter, involve the same principle, and require the same answer. They
are not true. So far from it, they are diametrically opposed, in point both of fact and doctrine, to the grounds really assumed and maintained by the court. The representation becomes the more extraordinary, because it is e fact which must have been known to the author, that the evidence to which he alludes, in the 15th charge, was objected to by the District Attorney of the United States, as inadmissible; that the court did admit it on the very ground that it raised a presumption in favor of the power of the Lieutenant Governor to make the grant in question; that the District Attorney excepted to the opinion of the court, and that the bill of exceptions now constitutes a part of the record in the case of Soulard, before the Supreme Court:
The court not only admitted all the evidence alluded to in these several charges, but also admitted, in the most distinct terms, that they did afford an inference; that they did raise a presumption; and were to be regarded as proof of the existence of a power, in the Lieutenant Governor, to make the concession on which Soulard relied: and yet precisely the reverse of this is that which is imputed to the Judge in these charges, for which there is not the slightest color in the opinion. The Judge admitted this evidence in the only light, and to the fullest extent, to which it was offered: for it was offered, and could be offered, only as presumptive proof, and in that character it was admitted.
Having received it as presumptive proof-having admitted that it did raise the presumption that was claimed for it-it became the duty of the Judge to weigh this presumption against the other evidence in the cause. That process was performed; and the conclusion of the Judge was, that the presumption admitted to have been raised by this evidence, was overborne by the opposing proof: and because the Judge was constrained, in the conscientious discharge of his duty, to come to this conclusion, he is accused, by this author, of having assumed that the testimony in question afforded no inference, raised no presumption, in favor of the power claimed for the Lieutenant Governor.
There is a statement in the close of the 13th charge, which demands a separate answer. That charge, it will be observed, after accusing the Judge of having assumed that the complete titles made by the Governor or Intendant General, though based on incomplete titles not conformable to the regu. lations of O'Reilly, Gayoso, or Morales, afford no inference in favor of the power of the Lieutenant Governor, from whom these incomplete titles emanated, adds, “and must be considered as anomalous exercises of power in favor of the individual grantees.” This feature, thrown into the charge by way of aggravating the absurdity of the Judge, required only the exercise of a little candor in explanation, to have proved, that, if not impregnably correct, the conclusion was, at least, not marked with the absurdity which the author would inculcate on the reader.
The question was, whether the confirmation by the Governor or Intendant General, of these inchoate titles, afforded satisfactory proof of the powers of those inferior officers to originate those titles. It was admitted by the Court, as already stated, that, instead of affording no inference, they did afford an inference of such power; and the whole question was, whether the subsequent confirmation was satisfactory proof of such power? As the regulations of O'Reilly, Gayoso, and Morales, which had marked out the whole power of the inferior officers, gave no authority to originate such titles, the Court conceived that, although the act of confirmation might prove the power of the confirming officer, it did not prove the power of the officer wbo had originated the claim; because the confirming officer might have the power to establish any claim, however irregular in its inception. An instance of this kind is presented in the 15th law of the Recopilacion: (Appendix to Land Laws, 970) the concluding sentence of which is this, " And because some lands have been granted by public officers who had not the power thereto, and which have been confirmed by us, in our Council, we, therefore, order, that all those to whom warrants of confirmation have been issued, may be at liberty to retain them, and shall be maintained in the possession of what land may be specified therein; and they shall be admitted, in regard to the excess, to the benefit of this law.” That which had happened in this case might have happened in the case at bar; for usurpations by inferior officers, far removed from the control of their superiors, are not uncommon occurrences; and the power of the inferior officer, from the very few confirmations of his acts brought to the notice of the court in Soulard's case, afforded no stronger inference of the power of the originating officer, than the sweeping confirmation made by the king, of grants which, he avows at the same time, have proceeded from officers who had no power to make them. In the case at bar, the presumption of power in subordinate officers was confronted by the published regulations of their superiors, which professed to chalk out the whole of their powers, and yet had not given the power in question. The court, therefore, thought it more rational to refer the confirmation to the sovereign power of the confirming officers, than to infer from that act a power in the inferior, not found in the charters from which all his powers appeared to have been derived. Such was the ground taken by the Judge, in which he conceives, that, if there was inaccuracy there .was no absurdity; and that it presents a very different case from the absurd anomaly exhibited by the charge.
The entire reasoning of the Judge upon this subject, is to be found in pages 13, 14, 15, 16, 17, 18, 19, and 20, of the report of the committee. And Judge Peck desires nothing more than a comparison of this opinion with these charges, to establish that the positions of the assumption here imputed to him are precisely the reverse of the doctrines which he maintains.
The 11th assumption imputed to him is in these words: “11. That altho? the regulations of Morales were not promulgated as law in Upper Louisiana, the grantee in the principal case was bound by them, inasmuch as he had notice, or must be presunied" from the official station which he held, « to have had notice of their terms.”
This is another entire misrepresentation. The error charged to the Judge is based on the assumption, that the regulations of Morales had not been promulgated as law in Upper Louisiana; and yet, says the author, the grantee, Soulard, (who resided in Upper Louisiana) was held to be bound by them, inasmuch as he had notice, or must have presumed, “from the official station which he held,” to have had notice of their terms; whereas the fact is, that these regulations had been promulgated as law in that part, of the province, and, by the complete titles which the claimant himself produced, it appeared that Soulard, who was the Surveyor, referred, in his official reports, to those yery regulations; and, therefore, was proved to have had notice. The truth is, that the publication of these regulations in Upper Louisiana was not questioned at the bar, at the trial, but was tacitly conceded, and it was only denied that the promulgation had been sufficient; but, independent of the presumption of their regular publication throughout the province, after they had been so long in operation, it was expressly proved by the late Lieutenant Governor himself, that he, as Lieutenant Governor, had officially received several copies, not less than six, at the port of St. Louis; and it was further proved that his private Secretary had another fair copy, which he posted up in front of the Government house. The court did not, therefore, in the opinion, consider the question which this statement represents it to have decided, which is, Whether, in case of proof, that the regulations had not been promulgated, the claimant, Soulard, would have been presumed, from his official station, to have had notice of their terms. That was not the case in proof; and, therefore, did not call for consideration. The opinion of the court took the ground that there had, in fact, been a sufficient promulgation. The opinion is found in page 21 of the report, and shows that this statement of the author is a misrepresentation of the opinion.
The 12th assumption of the Judge, is in these words: “12. That the regulations of Morales "exclude all belief that any law existed under which a confirmation of the title in question could have been claimed."
It is only by the unfair process of taking a single detached sentence from the opinion, that the author can gain a color for this charge. Standing alone, as it does, and unexplained, it presents the Judge in the light of having affirmed, that the regulations of Morales, unconnected with its preamble, exclude the possible existence of any law under which a confirmation of the title in question could have been claimed from the Government of Spain.
The House will observe, that the question in Soulard's case, was, whether there might not have been some law or ordinance of intermediate date, between those of O'Reilly's regulations in 1770, and Soulard's grant in 1796, by which the Lieutenant Governor was authorized to make the latter grant. It was alleged by the counsel for the claimant, that there was such an intermediate law. In that part of the opinion to which this charge points, the court was considering the probability of the existence of any such intermediate law, and the language of the opinion in page 19 of the report, is this: “The regulations which we have, do not permit us to believe that there existed others. Morales, in the preamble to those made by him, mentions those of O'Reilly and of Gayoso, in a manner which implies that these were all of which he had any knowledge, and shows that he was making regulations which were to offer the only means by which lands were to be od tained. His language is: 6. That all persons who wish to obtain lands, may know in what manner they ought to ask for them, and on what conditions lands can be granted or sold; that those who are in possession, without the necessary titles, may know the steps they ought to take, to come to an adjustment; that the commandants, as sub-delegates of the intendancy, may be informed of what they ought to observe,' &c. This preamble excludes the presumption that other laws existed, by which titles could be obtained; and the regulations themselves exclude all belief that any law existed, under which a confirmation of the title in question could have been claimed.
The House will perceive that, if the whole passage, or even its substance, had been stated by the author, it would have been impossible for him to have made any thing of it, which his readers could have been induced to believe was error. It is only by separating the last sentence from its context, that a case can be presented which any man could be persuaded to regard as error.