Imatges de pàgina

Ordinance of 1754, as conclusively to show, that the latter was not in force in Louisiana, in the opinion of the framers of these regulations; for if the ordinanee was in force in Louisiana, and the Governor General derived his authority to grant lands from the 12th section of it, he certainly could not annul the provisions of that ordinance from which he derived his authority, by making regulations repugnant thereto.

A comparison of the provisions of this ordinance with those of the regulations mentioned, will show, that there exists a general repugnancy between them, and an examination of the former will also show, that, if it be regarded as having been in force in Louisiana, no concession issued by the Lieutenant Governor, or commandant, can be considered authorized or valid.

The 1st section of the ordinance of 1754, provides, “that, from the date of this my Royal order, the power of appointing sub-delegate judges, to sell and compromise for the lands, and uncultivated parts of the said Do. minions, shall belong hereafter exclusively to the Viceroys and Presidents of my Royal Audiencias of those Kingdoms who shall send them their appointment or commission, with an authentic copy of this regulation."

The said Viceroys and Presidents shall be obliged to give immediate notice to the Secretary of State and Universal Despatch of the Indias, of the ministers whom they shall make sub-delegates in their respective districts and places where they have been usually appointed, or where it may seem necessary to appoint new ones, for his approbation."

Those at present exercising this commission, shall continue. These, and those whom the said Viceroys and Presidents shall hereafter appoint, may sub-delegate their commission to others, for the distant parts and provinces of their stations, as was previously done.”

This section prescribes the authority by which alone a sub-delegate can be appointed. It gives to the Viceroys and Presidents of the Audiencias the exclusive power of making those appointments; makes them the exclusive judges of the places and districts where such appointments may be necessary; and vests the sub-delegates with power to sub-delegate their commission to others for the distant provinces and places of their stations.

Had the Lieutenant Governor of Upper Louisiana, his appointment, as sub-delegate, from the Viceroys or Presidents of the Audiencias? or had he a sub-delegation from one so appointed? It has been proved on behalf of the petitioners, that he had not. The evidence, of the late Lieutenant Governor of Upper Louisiana, to this point, is, that he, and his predecessors, acted as sub-delegate, without any commission, as such; that he, and they, performed the functions of that office in virtue of their commission as Lieutenant Governor which issued from the Governor General of Louisiana; that the practice in other parts of the province, in this respect, was the same as in Upper Louisiana; in all, the Lieutenant Governors were, ex officio, sub-delegates. An appointment from the Viceroys or Presidents of the Audiencias of the Lieutenant Governor to be sub-delegate, is not permitted to be inferred from the performance of the duties of that office; the absence of such appointment, as well as the authority, in virtue of which the duties of the office were assumed, having been proved. 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 ofthe ordinance, can be allowed to possess any validity, if that ordinance be considered as having been in force. The 12th section of this ordinance, which is relied upon on behalf of the petitioners, as authorizing grants of land in Louisiana by the Governor General, does not vest that ofhcer with power to appoint sub-delegates; this power having been exclusively given, by the 1st section, to the Viceroys and Presidents of the Audiencias, but vests him with precisely the same power and jurisdiction, in relation to the sale and grant of lands, which had been given in previous sections to the Audiencias, and directs, in addition, that certain other officers shall be associated with him, by whose advice confirmations are to issue.

The 12th section is in these words: “In the distant provinces of the Audiencias, or where the scene intervenes, as Carracas, Habanas, Cartagena, Buenos Ayres, Panama, Yucatan, "Camana, Margarita, Puerto Rico, and in other of like situation, confirmation shall be issued by their Governors, with advice of the Officiales Reales, King's (Fiscal Minister) and of the Lieutenant General Letrado, where he may be stationed. The same officers shall also determine the appeals from the sub-delegate, who shall have been, or shall be appointed in each one of the said provinces and islands, without recourse being had to the Audiencia, or chancery of the district, unless the two decisions be at variance, and then this is to be officially, and, by way of consultation, to avoid the expenses of appeal. Wherever there shall be two Officiales Reales, the younger in office shall be the advocate of the Royal treasury in these causes, and the elder, the associate judge of the Governor, using the aid of counsel where there is no Auditor or Lieutenant Governor; and if the question is a point of law, by applying to any lawyer within or out of the district, and where there shall be but one Official Real, any intelligent person of the place may be appointed as the advocate of the Royal treasury.

“ It shall also be the duty of the Governors, with their appropriate judges, to examine concerning the compositions of the sub-delegates, as provided in respect to the Audiencias."

The 5th section, which prescribes duties to the Audiencias, and the other officers to whom the power of confirmation is given by the ordinance, mea ning the Governors mentioned in the 12th section, is in these words: “The possessors of lands sold, or compromised for, by the respective sub-delegates, from the said year 1700, to the present time, shall not be molested, disturbed, nor informed against now, nor at any time, if it shall appear that they have been confirmed by '

my Royal person, or by the Viceroys and Presidents of the respective districts while in office; but those who shall have held their lands without this necessary requisite, shall apply for their confirmation to the Audiencias of their district, and to the other officers on whom this power is conferred by the present regulation. These authorities having examined the proceedings of the sub-delegates, in ascertaining the quantity and value of the lands in question, and the patent that may have been issued for them, shall determine whether the sale or composition was made without fraud or collusion, and at reasonable prices. This shall be done with the judgment and advice of the Fiscals. Aster considering every circumstance, and the price of the sale or composition, and the respective dues of " mcdianata(first fruits of the half year) appearing to have been paid into the Royal treasury, and the King's money being again paid in the amount that may seem proper, the confirmation of the patent of possessors of these lands, shall be given in my Royal name, by which the property and claim in said lands shall be rendered legal, as well as in the waters and uncultivated parts,

and they and their successors, general and particular, shall not be molested therein.

In addition to the duties prescribed in this section, the 9th prescribes, that "the Audiencias shall issue the confirmations by provinces, andin my Royal name, after an examination by the Fiscal as before said, without greater judicial expense to the parties than what is required by the regulated prices for such act.

“For this purpose, they are to collect from the sub-delegates of their district the proceedings that have taken place in the sale or composition of that for which coulirmation shall be required. With these, and in proportion to the estimated value of the lands, and considering, at the same time, the benefit which it was my pleasure to grant to these my subjects, by relieving them froin the expense of applying to my Royal person, they shall determine the sum to be paid me for this new favor."

In these sections, no power is given to the Audiencias, or to the Governors, to appoint sub-delegates. But the intention to make sales, and not gifts of lands, which is perceivable in them, furnishes ground for a further objection to the validity of the concession in this case, if the ordinance extended to Louisiana. By these sections, no confirmations are to be made, except upon sales, or compromises, for a consideration in money proportioned to the estimated value of the land, the payment of which consideration is to precede the confirmation; and, in addition to being compelled to pay the

value of ihe land, the purchaser is required to pay the dues of mediunata, (first fruits of the half year) and also, to pay for the favor which it was the Royal pleasure to conser, in relieving him from the expense of applying to the Royal person to obtain confirmation.

The laws, 14 and 15, cited in the second section of the ordinance, the requirements of which laws are there directed to be regarded, show that the King's general intention is to sell his lands. In the former of these laws he declares, that, “ as we have succeeded to the entire seignory of the Indies, and all the lands and soil that have not been granted away by the Kings, our predecessors, or by us, in our name, belonging to our patrimony and our royal crown, it is proper that all lands held under false and iliegal titles should be restored to us; and that all the land that shall remain, after receiving what may be necessary for constructions, commons, and pasturages, for the places which are necessary, not only for the present but for the future; and after distributing to the Indians what may be necessary for tillage and herding, confirming the land they now hold, and granting them more, shall be free for grants and dispositions thereof at our pleasure,” &c. And in the 15th law, after having, among other things, directed an adjustment of title, it is directed, that “ all the lands that shall remain to be adjusted shall be offered at public sale, and knocked down to the highest bidder,” &c.

The Sth section of the ordinance directs that “ a proper reward shall be given to those who shall inform of lands, grounds, places, waters, and of uncultivated and desert lands, and shall be allowed a moderate portion of those of which they shall have informed as being occupied without title;" the 7th section having authorized the sub-delegate to determine the quantity to be granted for such service.

A view of the whole ordinance removes all doubt as to the general intention to sell and not to give the royal lands, except to the inhabitants of towns for pasturage and commons, according to their wants, and to the Indians, as mentioned in the laws, 14 and 15, just recited, and except so far as the grants which may be made to those who shall give information against persons occupying lands without title, authorized by the 7th and 8th sections, may be considered as in the nature of gifts.

From this view of the ordinance, the ambiguous meaning of the term mercedes, to be found in its preamble, produces no difficulty. The sense in which that terin must be received, is to be determined by a view 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 inhabitants of towns for commons and pasturage, and to be made to the Indians, as directed in the 14th and 15th laws, before adverted to.

If, then, this ordinance was to be be made the basis upon which the rights to confirmation in this case should be determined, the claim could not be confirmed, on the ground that the concession was not made upon a sale for money, and at the reasonable value of the land, but was 'made in consderation of public services; a consideration 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 thein as being occupied without title. This is the only species of service for which this ordinance authorizes a concession. This is the only case in which a sub-delegate is made the judge of the value of services. He is not made the judge of the value of services of the nature of those upon which the concession in question is alleged to have been issued.

From this examination, it will appear to be the interest of the claimant to deprecate a decision which is to make this ordinance the rule by which his rights are to be tried. The repugnancy between this ordinance on the one hand, and the regulations of O'Reily, Gayaso, and Morales, on the other, is apparent ir, the end and objects of each, and in their respective pro. visions. To raise a revenue was the leading object of the former, and the sale of lands the means to be used for its accomplishment; and the settlement of the country and interests of tillage were the objects of the latter, and donations of land were the means to be used for sccuring these objects. The repugnancy is such that both cannot exist together : one must give way to the other—one must be regarded as void of authority.

The regulations, especially those made by the governors, were the acts of the supreme authority in Louisiana; the acts of that authority, which the inhabitants there regarded as both legislative and executive, which, in 1799, abolished the former government, and established a new one; abrogated the existing laws, and introduced a new code; that the regulations were the acts of an authority so transcendent, furnishes a presumption in favor of their legality. That the acts of the supreme authority in Louisiana must be regarded as prima facie authorized, is a proposition, the admission of which appears to be necessary to entitle any of the acts of that government to be regarded as valid. The presumption arising in fayor of the authority of the Governor General to make regulations for the distribution of the royal lands, is fortified by the length of time during which grants were made in pursuance of those regulations; and which, it is reasonable to believe, were made with a knowledge of the Spanish Court. And is further supported by the recital contained in the preamble to the regulations of Morales, that the power to grant lands belonged to the civil


and military government, since the order of the King of 1770. What this order was; what power, what discretion it vested in the Governor General in making grants of the royal domain, and what restrictions it imposed, is left to be inferred (in the absence of the order) from the regulations themselves, and the other acts of the Governor General under it. In relation to these regulations, they may be regarded as rules which the governors prescribed to themselves, and to the inhabitants of the Province, and bear evidence that they had their source in a discretionary power. They are, therefore, to be regarded as laws in respect of the subject which they regulate; this conclusion follows from what has been said, and is consistent with a doctrine already laid down, that no grant of the public domain can be regarded as legal, except made in virtue of an authority from the Crown; such authority in this instance being presumed. That the regulations of O'Reily 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 suh. sequent sanction of these, and the presumption of their being authorized, thence arising, must be considered suificient 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'Reily, previous to the order of 1770, or not.

From what has been said, it appears that the regulations of O'Reily, of Gayaso, ard of Morales, are the only laws which regulated the distribution of lands in Louisiana, under the Spanish Government. Was the concession, in this case, authorized by these laws? It is not pretended that it was; and that it was not, is unquestionable. But it is insisted, for the petitioners, that the regulations of O'Reily did not extend to Upper Louisiana, and that those of Gayaso and of Morales, being of a date subsequent to the concession, ought not to affect it; that if the regulations did not authorize this concession, they did not prohibit it; and that, as it is not prohibited, a presumption arises in favor of its legality; that this presumption sustains the validity of the concession, and is sufficient to authorize its confirmation by this court.

In examining this reasoning, if it be admitted that the concession of an inferior officer is to be considered as prima facie authorized, this presumption, like all others, can stand only so long as it shall remain unopposed by evidence, or presumptions of a higher nature. A presumption can weigh only so far as it is calculated to induce belief; and so soon as it shall cease to do this, in consequence of the existence of facts, inconsistent with such belief, it ceases to make a prima facie case-oeases to furnish ground upon which a decision can rest. The presumption which arises in favor of the validity of the acts of the supreme authority, especially such as the enactment of regulations, and the acknowledgement of the authority of these for a series of years, is of a higher nature than that which arises in favor of the legality of a single act, or even a series of acts, such as concessions of land by the Lieutenant Governor, particularly when these acts are to be subject to the approval and confirmation of that supreme authority which gave those laws that were to regulate the subject of concessions.

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 quantity

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