Imatges de pàgina
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6th. That O'Reilly's regulations were, in their terms, applicable, or ever, in fact, were applied to or published in Upper Louisiana.

7th. That the regulations of O'Reilly have any bearing on the grant to Antoine Soulard, or that such a grant was contemplated by them.

8th. That the limitation to a square league of grant to new settlers in Opelousas, Attacapas, and Natchitoches, (in 8th article of O'Reilly's regulations) prohibits a larger grant in Upper Louisiana.

9th. That the regulations of the Governor General, Gayoso, dated 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 lo

of the whole ordinance; it need not necessarily be interpreted to mean gifts, but may as well be interpreted to mean grants; if, however, it necessarily imported gifts, effect is sufficiently given to it in this sense, by the gifts to be made to the inhabi tants of towns for commons and pas turage; and to be made to the Indians, as directed in the 14th & 15th laws before adverted to."

"A consideration, (public services) unknown to the ordinance, except in the case of an informer, as authorized in the 7th and 8th sections, where lands are authorized to be adjudged in moderate quantities, to those who shall give information of them, as being occupied without title."

6th. The regulations of O'Reilly were made for the entire province."

7th. It would appear that the policy apparent in O'Reilly's regulations, did extend itself to the province of Upper Louisiana. "Can it be believed that there existed an express authority, which authorized this grant, of 10,000 arpents, without any reference to settlement, cultivation, or property qualifications? The view which has been taken, excludes such belief, and with it, every presumption in favor of the legality of the concession."

8th. 'Upon what reasons were grants of land to be limited in quantity in Natchitoches, Attacapas, and Opelousas, and unlimited in Upper Louisiana.”

"The regulations of O'Reilly were made for the entire province.'

9th. The 14th section of Gayoso's regulations, operates directly upon the present claim: so likewise does the 4th section of the regulations of Morales."

"That the regulations in which these sections are found, are of a date subsequent to the concession in this

cated or surveyed until February,

1804.

10th. 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.

case, forms no reason why they may not impose duties on the claimants, and prescribe forfeitures for a failure to perform these duties."

10th. "But complete titles have been produced to show, in some instances, that the regulations have not been conformed to by the Governor General, and by the Intendant, in confirmations made by them; and it is thence insisted that they were not in force in the province of Upper Louisiana; or, that, if they were in force there, they were only intended to provide for grants to emigrants and new settlers, and were not intended to provide for grants to the inhabitants generally; and that some law must be presumed which authorized grants of lands generally, in pursuance of which the confirmations mentioned, were made. In answer to it, it may be observed, in addition to what has been before said relative to the subject, that the regulations of Gayoso refer, by express words, to the province of Upper Louisiana, by the name of Illinois, the name by which it was then known; and that the regulations of Morales are general, and are indubitably intended to extend to every part of the province."

"This is equally the intention of each set of the regulations which have been mentioned. The regulations which we have, do not permit us to believe that there existed others."

"That the Governor General, who exercised a legislative power generally, and particularly for the distribu-. tion of lands, should feel himself authorized to dispense with the observance of any of the provisions of his own laws, is not strange. Such a dispensing power is incident to the legislative department of every government. Legislation implies discretion in respect of the rules which are to be prescribed; the Governor General, with whom it was to exercise the power to make the law, could change it, or could dipense with its observ

11th. That, although 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 presumed, "from the official station which he held," to have had notice of their terms.

12th That the regulations of Morales "exclude all belief that any law existed, under which a confirmation of the title in question could have been obtained."

13th. 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 regula tions of O'Reilly, Gayoso, or Mor

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11th. The answer to that part of the argument, on behalf of the petitioners, which denies the force of law to the regulations of Morales in Upper Louisiana, for their supposed want of promulgation, it is only necessary to remark, that such a publication is proved as must have brought them to the knowledge of the ancestor of the petitioners. The official station which he held does not permit us to believe, from the publication proved, that he could have been ignorant of the forfeiture, to be incurred by a failure on his part to comply with the commands contained in those laws. It is, therefore, unnecessary to decide, whether, according to the principles of justice which prevail in our courts, this tribunal can regard a forfeiture as incurred, even under the Spanish Government, and by a subject of that government, for disobedience to laws which had never been promulgated.

12. This preamble to Morales' Regulations, 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 beenconfirmed.”

13th. Vide No. 10, and text of Judge Peck's opinion, opposite, thereto-supra.

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14th Vide No. 10. supra.

N. B. In the argument of the writer of the "Citizen" at the bar, (and as printed pages 26 and 30) the language not only of Morales, but also of Gayoso, in complete titles made by them, and produced in court, was much relied on as furnishing the construction which Morales and Gayoso put on their own regulations.

The words of Judge Peck, No. 10 supra, show that he paid no attention whatever to that argument.

15th. Inasmuch as Judge Peck has omitted to notice the uniform practice of the sub-delegates, or Lieutenent Governors, of Upper Louisiana, it is not possible to cite any specific part of the text of his opinion in which he says that such practice should be disregarded. But inasmuch as such practice was fully prov ed by oral and by written evidence before him, it is manifest, from the whole tenor of his opinion, that he does so disregard it. Vide printed argument, pages 7, 8, 9, 10.

16th. The historical fact is stated in Stoddard's sketches of Louisiana, pages 265 and following. This work (which certainly is entitled to much respect) was cited and referred to by counsel, (Vide printed argument, page 26) and in addition thereto, as proof of the "historical fact," the archives at St. Louis, and the books of the Commissioners and Recorder, and the acts of Congress heretofore passed confirmatory of incomplete titles, not conformable to the regulations of O'Reilly, Gayoso, and Mo es, were urged and relied on, and were all overruled, or disregarded, by Judge Peck.

17th. That the fact that incomplete concessions, whether floating or located, were, previous to the cession, treated and considered by the government and population of Louisiana as property saleable, transferable, and the subject of inheritance and distribution, ab intestato, furnishes no inference in favor of those titles, or their claim to the protection of the treaty of cession, or the law of na

tions.

18th. That the laws of Congress heretofore passed in favor of incomplete titles, furnish no argument or protecting principle in favor of those titles of a precisely similar character, which remain unconfirmed.

Conclusion of the article signed "A Citizen.".

In addition to the above, a number of other errors, consequential on those indicated, might be stated. The Judge's doctrine as to the forfeiture, which he contends is inflicted by Morales' regulations, seems to me to be peculiarly pregnant with griev

17th. This fact was strongly relied on in argument, and proof was produced from the records in the of fice at St. Louis, of the sale, transfer, and devolution of incomplete titles, and lands held under them; titles not conformable to the "regulations," and, in point of form, either precisely the same as the grant to Soulard, or much weaker in point of consideration or merits.-Vide printed argument before referred to, pages 9 and following.

18th. "That part of the act which requires the court to determine the question of the validity of the title, according to the several acts of Congress, &c. has been adverted to on behalf of claimants, but not seriously relied upon as furnishing the ground of a claim to confirmation in the present case. Upon this point, it is only necessary to observe, that there certainly is no act of Congress which would authorize the confirmation of the present claim, or any part thereof."

Nota bene. The writer of the "Citizen" will here observe, that the Judge, in stating that the acts of Congress were not seriously relied on" by the counsel for the petitioners, seems to have forgotton not only the spoken, but the written and printed argument of counsel. Most cer tainly those acts were very seriously "relied on" at the bar, and are dwelt upon in the printed argument at as much length as was compatible with the analytical nature of the report of that argument intended to be made. Vide argument, page 23.

Conclusion', &c.

In this conclusion it is stated by me, that "other errors in the Judge's opinion consequential on those indicated might be shown." This assertion, I believed then, and do still believe to be perfectly true, and could, if it were here necessary, demonstrate

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