Imatges de pàgina

pedient to be granted ; what would be liberal, what magnanimous, on the part of the government, to grant. These considerations may properly be addressed to the national Legislature. The constitution has confided to Congress the power to dispose of the lands, and other property, of the United States. It is, therefore, with Congress to determine, what, in relation to these claims, is just, or expedient to be granted; what would be liberal, what magnanimous, on the part of the government, to grant. These are powers which belong to Congress ; those which they have conferred upon this court, in relation to these claims, are, to hear such of them as might have "been perfected into a complete title under, and in conformity to, the laws, “ usages, and customs,” and to determine them “in conformity with the

principles of justice, and the laws and ordinances of the government under " which they originated.”

All that the laws authorized the claimant to demand of the former government, the principles of justice require of the United States to grant, and to determine this, is the power which has been conferred upon this court.

This the claimant had a right to expect and to demand of the United States; and so far, his expectation, his demand, would be founded in legal obligation.

But he could have no just expectation, no expectation founded in law, that his title would be perfected, where such title had been originated without the authority of law; and this is more emphatically true, where it had been originated against the policy or the express provisions of the law.

In answer to that portion 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 these 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.

The 2d section of the act which directs the question of the validity of the "title" to be decided "according to the law of nations; the stipulations of "any treaty, and proceedings under the same; the several acts of Congress sin relation thereto; and the laws and ordinances of the government from " which it is alleged to have been derived ;" remains to be briefly considered. The only stipulation in any treaty, which has been brought to the view of this court, is contained in the 3d article of the treaty by which Louisiana was acquired. By this stipulation, the inhabitants of the ceded country were to be maintained and protected in their property. It protects rights, such as they were ; it does not confer or enlarge them ; it does no more than the law of nations would have done, in the absence of any stipulation whatever. The inhabitants of Louisiana, under this stipulation, have the same claim against the United States, in relation to the soil, that existed against Spain at the date of the transfer, and none other.

It is insisted for the petitioners, that the proclamation of Salcedo and Cassa Calvo, commissioners on the part of the Spanish government to deliver the possession of Louisiana to France, under the treaty between France and Spain, confirms all grants and concessions

By the treaty of St. ILDEFONSO, of the 1st of October, 1800, Spain ceded Louisiana to France; by the treaty of the 30th of April, 1803, the same country was ceded to the United States, and on the 18th of May, 1803, the proclamation mentioned, was issued ; nearly three years after Spain had parted with her right to the country.

If it were any part of the object of that proclamation to confirm grants or concessions, or to declare the intention of the treaty of St. Ildefonso, in relation thereto, it might then become necessary to consider the effect of such act, either as it might serve as an exposition of the treaty, or the ground of a title. It does not appear, however, to be any part of the intention of the proclamation, either to confirm titles, or to declare that such is the effect of the treaty. Its words are, “His Majesty makes known, that, by the wishes he entertains for the advantage and peace of the inhabitants of the colony, he expects, from the sincere and close amity and alliance which unites the Spanish government to that of the Republic, that the latter will give orders to.. the Governors and other officers employed in its service in the said colony and city of New Orleans, to the end, that the churches and other houses of religious worship, served by the curates and missionaries, should continue on the same footing, and enjoy the same privileges, prerogatives, and immunities, which were granted to them by the titles of their establishments; that the ordinary judges continue equally as the tribunals established, to administer justice according to the laws and customs adopted in the colony; that the inhabitants should be maintained and preserved in the peaceable possession of their property; that all concessions* or property of any kind soever, given by the governors of these provinces, be confirmed, although it had not even been done by his Majesty.”

The plain senseof this, is, that his Majesty expects that the French Republic will give orders to the Governors and other officers employed in its service, in the colony and city of New Orleans, to the end, that is all concessions, or property of any kind soever, given by the Governors of these provinces, be

* Concession. - This is believed to be an erroneous translation ; that grants, and not concessions, would be the true translation - Whether the proper translation would make the term grands or concessions, way not deemed material to the determination of the ca'ise. The document, in the original language, has not therefore been adverted to.

It is reinarkable, however, that the words, "even though they had not been cofirmed by his Majesty,” which immediately follow, imply, that the confirmation by the King was necessary to give a complete title. The words are not, even though they had not been confirmed by the Governor General, or Intendant, as they would have been, if, in the opinion of the authors of the proolamation, those officers could have given complete titles; and more particolarly, if the words bad reference to concession, these being subject to immediate confirmation by the Governor General, or the Intendant, on the latter succeeding to the power of the former. The inferences which would s. em to follow, are, that the confirmation of the king was necessary to a complete title ; and that the proclamation has reference to grants as distinguished from concessions : the latter term applying to the act of the Licuten. ant Governor by which the title was originated, and the former to the act of the Governor General, or the Intendant, which confirms that title. These inferences appear to b: fortified by the fact, that the concession was to be referred to the Governor General, or Inten. dant, for confirmation, and not to the King; that if the title had to be referred to the Kirige for his confirmation, this reference would not take place until after the confirmation by the Governor General, or Intendant ; and by the additional fact, that the titles mentioned are those which had been “given by the Governors of these provinces,” nieaning, the Gover. nors who had successively administered the government of the then provinces, and not to the titles which had been given by the commandants of posts, who in some places in the provice had, and in others hail not, the title of Lieutenant Guvernor. The titles, therefore, given by the commandant of a post, or a Lieutenant Governor, are not supposed to be referred to in the proclamation. All this is mere suggestion.

confirmed, although it had not even been done by his Majesty." His Majesty then expects, that these orders will issue from the French Republic, but, until such orders should issue, and confirmations take place under them, the concessions would remain unconfirmed. Have those orders ever issued from the French Republic, and the confirmations been made in pursuance thereof? Upon what is this expectation of his Majesty predicated? Not upon any stipulation in the treaty; No! it is predicated upon the “ sincere and close amity and alliance which unites the Spanish government to that of the Republic ;” and upon “the wishes his Majesty entertains for the advantage and peace of the inhabitants of the colony.The hypocrisy which could presume to mock a people with such grounds of hope, is aggravated no less by the ignorance upon which it presumes, than by the reflection, that its author had wholly disregarded that interest, at a time when he might have secured it, about which he now affects to feel solicitude!! This proclamation then, is no confirmation ; no exposition of the treaty of St. Ildefonso ; and as regards the right of property, it is not a law, nor intended to be such ; it is a notice merely. It is therefore unnecessary to consider whether it could be regarded as a proceeding under, or resulting from, a stipulation in any treaty; or how far this clause in the act is qualified by the provisions contained in the the previous section....!!,&f' store forti ? ??. ?;!!!!!!

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 the 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 rernark, that there is certainly no act of Congress, which would authorize the confirmation of the present claim, or any part thereof. i i nging to d

it fororo."
A decree must go against the validity of the title. EDIBLE !! !

In the course of this cpinion, a more extensive range may, at first view, appear to have been taken, than was necessary to the determination of the cause before the court. The questions, however, which had been discussed and decided, will, upon a nearer view, be found to belong to the cause, and their discussions to have been, in some degree, necessary to the elucidation of the questions involved in it. The title to more than a million, perhaps millions, of acres of land, was supposed to depend upon the decision of the questions which have been considered ; and the opinion having mainly proceeded upon a view which had not been taken at the bar, and having been extended to an inquiry into the source and nature of the Spanish title's to lands in Louisiana, and to an enquiry concerning the laws under which those titles were derived ; and the decision of most of the points, therefore, having proceeded chiefly upon grounds which had been little, or not at all examined, in the argument of the cause, it is deemed proper lo remark, that counsel will not be excluded from again stirring any of the points which bave been here decided, when they may hereafter arise in any other cause.

[From the Missouri Advocate and St. Louis Enquirer, of April 8, 1826.]. To the Editor.

SIR: I have read, with the attention which the subject descrves, the opi .nion of Judge Peck, on the claim of the widow and heirs of Antoine Soulard, published in the Republican of the 30th ultimo. I observe, that, although

the judge has thought proper to decide against the claim, he leaves the grounds of his decree open for further discussion.

Availing myself, therefore, of this permission, and considering the opinion so published, to be a fair subject of examination to every citizen who feels himself interested in, or aggrieved by its operation, I beg leave to point the attention of the public to some of the principal errors which I think that I have discovered in it. In doing so, I shall confine myself to little more than an enumeration of those errors, without entering into any demonstration or developed reasoning on the subject. This would require more space than a newspaper allows, and besides, is not (as regards most of the points) absolutely necessary.

Judge Peck, in this opinion, seems to me to have erred in the following assumptions, as well of fact as of doctrine:

Ist." That, by the ordinance 1754, a sub-delegate was prohibited from making a grant in consideration of services rendered or to be rendered.

2d. That a sub-delegate in Louisiana was not a sub-delegate as contemplated by the above ordinance.

3d. That O'Reily's regulations, made in February, 1770, can be considered as demonstrative of the extent of the granting power of either the Governor General or the sub-delegates under the royal order of August, 1770.

4th. That the royal order of August, 1770, (as recited or referred to in the preamble to the regulations of Morales, of July, 1799,) related exclusively to the Governor General

5th. That the word “ mercedes” in the ordinance of 1754, which, in the Spanish language, means “gists,” can be narrowed by any thing in that ordinance or in any other law, to the idea of a grant to an Indian, or a reward to an informer, and much less to a mere sale for money,

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

7th, That the regulations of O'Reily 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 grants to new settlers in Opelousas, Attackapas and Natchitoches, (in 8th article of O'Reily'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 located 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.

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 claimed.”

13th. That the complete titles, (produced to the court) made by the Governor General ur the Intendant General, though based on incomplete titles not conformable to the regulations of O'Reily, Gayoso, or Morales, afford ng

inference in favor of the power of the Lieut. Governor, from whom these incomplete titles e nanated, and must be considered as anomalous exercises of power in favor of individual grantees.

14th. 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.

15th. 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.

16th. That the historical fact, that nineteen-twentieths of the titles to lands in Upper Louisiana were not only incomplete, but not conformable to the regulations of O'Reily, Gayoso, or Morales, at the date of the cession to the United States, affords no inference in favor of the general legality of those titles.

17th. That the fact, thatincomplete concessions, whether floating orlocated, 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 to their claim to the protection of the treaty of cession or of the law of nations.

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.

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 grievous consequences. I shall, however, not tire the reader with any further enumeration, and shall detain him only to observe, by way of conclusion, that the judge's recollection of the argument of the counsel for the petitioner, as delivered at the bar, differs materially from what I can remember, who also heard it. In justice to the counsel, I beg to observe, that all that I have now submitted to the public, has been suggested by that argument as spoken, and by the printed report of it, which is even now

before me.


Be it remembered, that, at a Court of the United States for the Missouri district, begun and held at the city of St. Louis, within and for said district, on the third Monday of April, in the year of our Lord one thousand eight hundred and twenty-six, under the authority of an act of Congress, entitled "An act enabling the claimants to lands within the limits of the State of Missouri and Territory of Arkansas, to institute proceedings to try the validity of their claims,” the following proceedings were had in said court, to wit: “The court being satisfied, from the evidence of Luke E. Lawless, that Stephen W. Foreman, of this city, is the editor and publisher of the Missouri Advocate and St. Louis Enquirer, published in the said city, and that the paper of that name, of the eighth of April instant, which contains a

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