Imatges de pàgina

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 confirmation 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. from 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 the land, the purchaser is required to pay the dues of medianata, (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 illegal 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 8th 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 shail 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 securing 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 re. gulations 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, vloes 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 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 is 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

in Natchitoches, Attakapas, 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 Gayaso's regulations, and in the 1st 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 encouraged by the distribution of lands in Upper Louisiana as elsewhere in ihe Province? Why, in Upper Louisiana, should grants have been made without regard to the means of the cultivator, or without regard to any cultivation whatever, when these particulars were to be attended to with strictness in every other part of the Province?

The regulations of O'Reily were made for the entire Province. They were made, as we are informed in the preamble to them, in consequence of petitions from the inhabitants, and of the information derived by the Governor in his visit through the country, and in consequence of the reports of the inhabitants assembled in each district by the Governor's order. They were made to "fix the extent of the grants of lands which should thereafter be made, as well as the enclosures," &c. Many of the articles in the regulations refer to particular places, and have a local application merely; but the same policy, namely, the extension of the settlements, and the interest of agriculture, dictated them all.

The regulations having, in previous sections, authorized small grants to be made, in proportion to the means of the cultivator, the 8th section di- , rects that “no grant in the Opelousas, Attakapas, and Natchitoches shall exceed one league in front by one league in depth; but when the land granted shall not have that depth, a league and a halt in front by half a league in depth may be granted;" and the 9th article directs, that; “ to obtain in the Opelousas, Attakapas, and Natchitoches a grant of forty-two arpents in front by forty-two arpents in depth, the applicant must make appear that he is possessor of one hundred head of tame cattle, some horses and sheep, and two slaves to look after them; a proportion which shall always be observed for the grants to be made of greater extent than that declared in the preceding article."

It would appear that the policy apparent in O'Reily's regulations did extend itself to the Province of Upper Louisiana. But it is a mistake to suppose that a prohibition was necessary to deprive the Lieutenant Governor of the power of making grants, and that, without a prohibition, his grant would be valid. The reverse of this is true-his grants are invalid unless authorized by an express authority from the King, either as derived through the Governor General, in the form of laws, or otherwise. 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.

But the evidence of the late Lieutenant Governor is introduced to prove, that, in Upper Louisiana, that officer was unrestricted as to quantity, though the witness does not pretend that he had any authority, other than the law, to make such concessions. The amount of his evidence is, that the law clothed him, as Lieutenant Governor, with power to make concessions, and imposed no limitation as to the extent of the grant. Does the witness mean to prove that there existed any unwritten law, in virtue of which the officer mentioned, or any other officer of the Crown, was authorized to make grants

of the royal domain? If he does, the evidence is untrue. It may be assumed, with certainty, that no unwritten law, no principle of the Spanish Constitution gives to any officer of the Crown the power to grant the royal lands; and that such power, to be legitimate, must be derived from some authority other than the Constitution of Spain, or any unwritten law, usage, or custom. An express written authority was indispensably necessary to authorize the Lieutenant Governor of Upper Louisiana to grant lands. The existence of such authority might be inferred from circumstances, but its existence is indispensable to the validity of a grant. Can it be inferred in this case, that there existed a written authority in the nature of a law, or otherwise, in virtue of which the Lieutenant Governor of Upper Louisiana could grant lands, without regard to settlement, cultivation, the means of the cultivator, or the extent of the grant? It cannot, because the general law, as well as the general policy of the Spanish government, as evinced in all the regulations mentioned, is at war with such inference. If such authority did exist, it being an exception to the general law and policy, must be shown, and is not to be implied or presumed. The witness proves no such authority; he refers to none; he alleges the existence of none, in such way as to prove any thing. If he intended to prove the meaning of the regulations, that is not the subject of proof; these the court must construe for itself ; if he means there was written law, which gave the alleged authority, the better evidence, the law itself, must be produced; if he means that there existed an unwritten law which gave the authority, the witness does not appear to be so learned in legal science as to make his opinion of any value; could it be considered as a foreign law, and therefore the subject of proof, and could it be at all admitted as possible, (which however it cannot) that any unwritten law could give any authority, or pertain to the subject. This evidence, then, does not vary the conclusion before made, that there existed no authority for the concession in question.

But if it were conceded that this concession furnished of itself a presumption of its own legality, and that no circumstances exist to impeach this presumption, this alone would not be sufficient to authorize its confirmation ; the concession itself must be such as "might have been perfected into a complete title, under and in conformity to the laws, usages, and custom, of the Spanish government;" and the claim must be such as “the principles of justice" require to be confirmed. .

The 1st section of the act of Congress, which refers this species of claim to the decision of this court, declares, “ That it shall and may be lawful for any person or persons, &c. claiming lands, tenements, or hereditaments, in that part of the late province of Louisiana which is now included within the State of Missouri, by virtue of any French or Spanish grant, concession, warrant, or order of survey, legally made, granted, or issued, before the 10th day of March, one thousand eight hundred and four, by the proper authorities, to any person or persons resident in the province of Louisiana, at the date thereof, or on or before the tenth day of March, one thousand eight hundred and four, and which was protected or secured by the treaty between the Urited States of America and the French Republic, of the thirtieth day of April, one thousand eight hundred and three, and which might have been perfected into a complete title, under and in conformity to the laws, usages, and customs, of the government under which the same originated, had not the sovereignty of the country been transferred to the United States, in each and rvery such case, it shall and may be lawful for such person or persons, &c.

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