Imatges de pÓgina
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in Natchitoches, Attakapas, and Opelousas, and unlimited in Upper Louisiana? And what policy dictated the limitation of grants in the laiter 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 directs 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 ir 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 ob served 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 ex tend itself to the Province of Upper Louisiana. But it is a mistake to suppose that a prohibition was necessary to deprive the Lieutenant Govern or of the power of making grants, and that, without a prohibition, his gran would be valid. The reverse of this is true-his grants are invalid unles authorized by an express authority from the King, either as derived throug! the Governor General, in the form of laws, or otherwise. Can it be be lieved that there existed an express authority which authorized this granto 10,000 arpents, without any reference to settlement, cultivation, or property qualifications? The view which has been taken excludes such belief; an 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, thoug! 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 mea to prove that there existed any unwritten law, in virtue of which the office mentioned, or any other officer of the Crown, was authorized to make grant

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 nune, 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 issueil, before the 10th day of March, one thousand eight hundred and four, by the 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 pvery such case, it shall and may be lawful for such person or persons, &c.

proper authorities, to present a petition to the District Court of the State of Missouri, setting forth," &c. The section then proceeds to direct what facts the petition must contain, and after having stated these, declares that the said court is thereby "authorized and required to hold and exercise jurisdiction of every petition presented in conformity with the provisions of this act, and to hear and determine the same," soc. “in conformity with the principles of justice, and according to the laws and ordinances of the government under which the claim originated.” The 2d section declares, “That every petition which shall be presented under the provisions of this act, shall be conducted according to the rules of a court of equity;" and further declares, “That the said court shall have full power and authority to hear and determine all questions arising in said cause, relative to the title of the claimants, the extent, locality, and boundaries, of the said claim, or other matters connected therewith, fit and proper to be heard and determined; and by a final decree, to settle and determine the question of the validity of the title, according to the law of nations, the stipulations of any treaty, and proceedings under the same ; the several acts of Congress in relation thereto ; and the laws and ordinances of the government from which it is alleged to have been derived ; and all other questions properly arising between the claimants and the United States. These discordant provisions of this act, make it difficult to ascertain its intention, as to the rule of decision which the court is to adopt.

It is to be remarked, that the act vests a new jurisdiction. The first part of the first section defines, with great precission, the cases of which the court is authorized and required to take jurisdiction. Any claim not included in that description, is not within the jurisdiction of the court. To give jurisdiction, the claim must be in virtue of a French or Spanish grant, or of a concession, warrant, or order of survey. These are the only cases to which the jurisdiction extends. But the description does not stop here ; other circumstances must attend it; a further description must apply to each case, to bring it within the jurisdiction. The grant, concession, warrant, or order of survey, which is to form the ground of claim, must have been “ legally made, granted, or issued, before the tenth 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;" it must have been “protected or secured by the treaty between the United States and the French Republic, of the 30th day of April, 1803;" and it must be such as

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.” If the claim is without any member of this description, the jurisdiction of the court cannot embrace it. If, for instance, it was not originated before the 10th day of March, 1804, or by the proper authorities, or could not have been perfected into a complete title under, and in conformity to, the laws of the government from which it was derived, jurisdiction would not attach. If, however, jurisdiction attaches to the case in consequence of its being of the description mentioned in the act, it does not follow that the claim would necessarily be entitled to confirmation ; for although the claim, at its inception, should be such as might have been confirmed, the term “might," implies possibility, and such a claim, therefore, might or might not have been confirmed, according to circumstances, and as the principles of justice should require ; the claimant might not have complied

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with the conditions of the grant, or the commands of the law; or he might have abandoned his claim. Such a claim, therefore, the court in the latter part of the section, is authorized to hear and determine in conformity with the principles of justice, and according to the laws and ordinances of the government” from which it is derived.

The first part of the 1st section not only defines the jurisdiction of the court, but also furnishes a rule of decision, which the court is necessarily to regard in determining the validity of the claim. Among other things, it requires that the claim must be such as "might have been perfected into a complete tille under, and in conformity to the laws, usages, and customs of the Government from which it is derived, had not the sovereignty of the country been transferred to the United States." The claim before the court, is for 10,000 arpents of land, founded upon a concession issued in 1796, by the Lieutenant Governor of Upper Louisiana; and public service is the con. sideration upon which the concession is alleged to have been issued. No loeation of this concession was made until the 20th of February, 1904, some time after the treaty of cession must have become known to the claimant. No settlement, no improvement or cultivation is alleged to have been made; nor, in issuing the concession, was regard had to the means of the claimant. In conformity with what law of the Spanish Government could this claim have been confirmed? Not in conformity with the regulations of O'Reily. It is the intention of these, that grants should be made with a view to settlement and cultivation, and that the property and qualifications of the applicant should determine the extent of ihe grant. It is their further intention, that a failure to settle or cultivate, should occasion a forfeiture of the grant: they authorize no grant which is not subject to these conditions; they authorize no grant to be made except with regard to the means of the applicant; nor do they authorize any grant of a greater extent than a league square.

Neither would the regulations of Gayos, or of Morales, have authorized the confirmation of the present claim. They present the same objections to its confirmation that have been already adverted to, as growing out of the regulations of O'Reily. Each of these regulations contain provisions not to be reconciled with the idea that the present concession could have been confirmed, in conformity with law, had no change of sovereignty taken place. They equally evince an intention to authorize grants, with a view to tíħage, and the settlenient of the country, and to secure these objects, they required that, in all grants to be made, regard should be had to the family and property of the grantee, to determine the extent of the grant.

The 9th section of Gayoso's regulations directs, that, “ to every new settler, answering the foregoing description, and married, there shall be granted two hundred arpents of land; fifty arpents shall be added for every child, he shall bring with him."

The 10th section of the sam regulations declares, that, “to every emigrant possessing property, and uniting the circumstances before mentioned, who shall arrive with an intention to establish himselt, there shall be granted 200 arpents of land; and, in addition, 20 arpents for every negro that he shall bring: Provided, however, that the grant shall never exceed 800 arpents to one proprietor. If he has such nuinber of negroes as would entitle him, at ihe above rate, to a larger grant, he will also possess the means of purchasing more than that quantity of land, if he wants it, and it is necessary, by all possible means, to prevent speculations in lands."

Both these sections refer, expressly, to the province oi Upper Louisiana, then known by the name of Illinois, as manifestly appears by the context.

The 1st section of the regulations of Morales prescribes, that, “ to each ncwly arrived family who are possessed of the necessary qualifications to be admitted among the number of cultivators of these provinces, and who have obtained the permission of the Government to establish themselves on a place which they have chosen, there shall be granted for once, if it is on the bank of the Mississippi, four, six, or eight arpents i: front on the river, by the ordinary depth of forty arpents, and if it is at any other place, the quantity which they shall be judged capable to cultivate, and which shall be deemed necessary for pasture for his beasts, in proportion according to the number of which the family is composed; understanding that the concession is never to exceed 800 arpents in superficies.”

The 10th section of the last mentioned regulations prescribes, that, “in the posts of Opelousas and Attakapas, the greatest quantity of land that can be conceded shall be one league front by the same quantity in depth, and when forty arpents cannot be obtained in depth, a half a league may be granted, and for a general rule, it is established, that, to obtain in said posts a half a league in front by the same quantity in depth, the petitioner must be owner of 100 head of cattle, some horses and sheep, and two slaves; and also in proportion for a larger tract, without the power, however, of exceeding the quantity before mentioned.”

The first section of the regulations last mentioned, after having directed the grants which are to be made on the Mississippi, directs that, if made at any other place, “the quantity which they shall be judged capable to cultivate, and which shall be deemed necessary for pasturage for his beasts, in proportion according to the number of which the family is composed; understanding that the concession is never to exceed 800 arpents in superficies.” This section lays down the general rule which is to prevail throughout the province. . The larger grants authorized at Opelousas and Attakapas by the 10th section, is an exception to this general rule, which exception is confined to the posts mentioned: so that the regulations of Morales limit grants in Upper Louisiana, like those of Gayoso had done, to 800 arpents, while they authorized them at the post of Opelousas and Attakapas to the extent of a league square. It does not appear to be necessary to inquire into the reasons upon wilich grants a league square were authorized at the posts mentioned, while 800 arpents only could be granted, under any circumstances, at any other place in the province. It is worthy of observation, however, that the regulations of O'Reily contain a like exception, in favor of these po:ts, and also of Natchitoches.

The 14th section of Gayoso's regulations, operates directly upon the present claim; it declares, that the new settler to whom lands have been granted, shall lose them without recovery, if, in the term of one year, he shall not begin to establish himself upon them, or if, in the third year, he shall not have put under labor ten arpents in every hundred."

So, likewise, does the 4th section of the regulations of Morales, which declares, that “the new settlers who have obtained lands, shall be equally obliged to clear and put in cultivation, in the precise time of three years, all the front of their concessions, or the depth of at least two arpents, on the penalty of having the lands granted, remitted to the domain, if this condition is not complied with.”

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