Imatges de pàgina

ples, commands, and prohibitions, in those regulations contained, are not to be reconciled with any idea of the legality of the said concession, and are incompatible with the existence of any law, usage, or custom, in conformity with which the said concession might have been confirmed, had no change of sovereignty taken place: the court doth therefore find the alleged concession and claim of the petitioners to be illegal in its origin, and invalid, and doth therefore decide, adjudge, and decree, against the validity of the same; and doth further order, adjudge, and decree, that the said petitioners pay all cosis and cliarges occasioned in an about the prosecution and defence of this suit: and thereupon the said petitioners, by their attorney, aforesaid, pray that they may appeal from the judgment aforesaid, of the court here, so as aforesaid rendered to the Supreme Court of the United Stated, and to them the same is granted by the court here."

By which it will appear an appeal was prayed on the same day; and afterwards, on the 30th December, 1825, the follo:ving appeal bond was executed and filed with the papers:

Know all men by these presents, that I, Marie P. Leduc, am held and firmly bound unto the United States in the penal sum of five hundred dollars, to the payment of which, well and truly to be made, I bind myself, my heirs, administrators, and executors, firmly by these presents. Sealed with my scal, and dated this thirtieth day of December, eighteen hundred and twenty-five.

The condition of the above obligation is such, that whereas Julie Soulard, widow, James G. Soulard, Henry G. Soulard, Eliza Soulard, and Benjamin A. Soulard, children and heirs of Antoine Soulard, deceased, have this day prayed for, and obtained, an appeal to the Supreme Court of the United States, from the decree of this Court of the United States for the Missouri District against them, in a suit wherein they are petitioners, and the United States are defendants: Now if the said petitioners shall well and truly prosecute the said appeal with effect, and shall pay all costs occasioned by them in the prosecution of the same, and shall well and truly pay all costs which may be adjudged against them in said suit, then the above obligation to be void; otherwise to remain in full force and effect.

M. P. LEDUC, (L. S.]

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I, Isaac Barton, Clerk of the Court of the United States for the Missouri district, do hereby certify, that the appeal in the case of Julia Soulard, widow, and James G. Soulard, and others, children and heirs of Antoine Soulard, deceased, against the United States, was taken at the December term of said court, being on the twenty-sixth day of December, one thousand eight hundred and twenty-five, and that, on the thirtieth day of December, one thousand eight hundred and twenty-five, said court adjourned, to sit again on the third Monday of April then next.

In testimony whereof, I have hereunto set my hand, and affixed [ L. s. ] the seal of said court, at St. Louis, the sixteenth day of September, one thousand eight hundred and twenty-six.


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Court of the United States for the State of Missouri.

PECK, JUDGE. James G. Soulard and others,

The United States. This is a petition under the act of Congress of the 26th May, 1824, which authorizes certain claimants of lands to institute proceedings in this court, to try the validity of their claims, to obtain confirmations thereof.

The petition states, that, in the year 1796, a concession for 10,000 arpents of land, to be located on any part of the royal domain, was issued by Don Zenon Trudeau, Lieutenant Governor of the province of Upper Louisiana, to Antoine Soulard, the ancestor of the petitioners, who was then the Surveyor General of said province, in consideration of public services: that, on the 20th of February, 1804, the quantity of land as couceded, was located and surveyed by Don Santiago Rankin, deputy surveyor under said Soulard, and that a certificate of said survey was recorded in the book of records of the public surveys, kept by the Surveyor General: that, before the time when claims should have been filed, pursuant to the act of Congress of the 2d of March, 1805, the said decree of concession and certificate of survey were, by mistake, thrown into the fire and destroyed; and that said Soulard believing he was excluded from the benefit of any of the acts of Congress passed for the relief of land claimants, in consequence of the loss of said papers, omitted to file any notice of said claim, and that he had consequently derived no benefit of any of the laws of Congress theretofore passed for the relief of land claimants.

A jury, to whom the court had submitted that fact for trial, found, that a concession, as above stated, had issued to the ancestor of the petitioners. No settlement or improvement is alleged, nor any thing in relation to those qualifications of the grantee, as to property, which are required by the regulations. This statement of facts is all that is necessary to be prefixed to the opinion of the court.

A mass of evidence was offered on the hearing of the cause, but except that which is adverted to, and stated in the opinion, no part of it is material.

Opinion of the Court. The interests to be affected by the decision of the questions arising in this case, are extensive. The questions themselves are novel. There is nothing in relation to them which can be regarded in the nature of a precedent, or authority to influence their decision. They are now, for the first time, without any light from this source, presented for judicial determination. In their investigation, it is necessary to explore an extensive field,-a region of waste, where darkness obscures, and labyrinths embarrass; where the desolating hand of revolution, and of time, has removed many of those landmarks which, at any time, were scarcely distinguishable. Hesitation and distrust, therefore, must reasonably accompany the inquiry.

What were the laws which regulated the disposition of the King's domain, at the date of the alleged concession, is a question, first in order for examination.

It is contended on behalf of the petitioners, that the Slst article of the ordinance of the King of Spain, became in force in Louisiana, immediately on the ratification of the treaty of Fontainebleau, of the 3d of November, 1762; or, at all events, on the occupation of Louisiana by Spain, in 1769, under that treaty.

The assumption, that this article of the ordinance became in force in Louisiana, as contended for, either as it is attempted to be supported by the law of nations, or by the proclamation of Count O'Reily, Governor General, appears to be without foundation.

By the law of nations, the ancient laws of a ceded country, continue in force until changed by the new sovereign. But this principle does not apply to those laws which a sovereign may have thought necessary to establish for the purpose of regulating the manner in which the royal lands should be disposed of. It is a principle which applies to the municipal regulations of a country in general, and is necessary to the preservation of order, the protection of rights, and the redress of injuries. A different rule would be productive of great inconvenience. If a change of sovereignty, of itself, introduced the laws of the new sovereign, the consequence would be, that the inhabitants of a ceded country must often become subject to laws which they had not the means of knowing; which might be locked up in a foreign language, and of which there could have been no promulgation. These reasons, upon which, doubtless, the principle of the law of nations, adverted to, was established, do not exist in favor of the establishment of the same principle in relation to those laws which may regulate the disposition of the sovereign's domain. These are excepted from the operation of the general principle of the law of nations here laid down. Each sovereign disposes of his royal lands in such manner as he

proper. He

may grant them from under his own hand; or, he may adopt the more convenient and judicious mode of delegating to others the power to grant them, subject to such instructions or laws, as to him may appear expedient. But when a sovereign ciisposes of territory hy treaty, he thereby parts with the right to grant lands in such territory; the title to them having passed by such treaty to another; and the authority of all persons whom he may have authorized to grant lands for him, ceases with his own; and all laws relating thereto become inoperative, the subject upon which they were to operate, namely, the litle of the sovereign, having been transferred to another. The consequence which follows this, is, not that those laws of the new sovereign, which should regulate the sale of his royal lands, would be thereby introduced into the ceded country, but, that no laws whatever, in relation to that subject, would be in force there; and therefore, that no lands could be there granted, except by the sovereign himself, until he should provide therefor by law, or otherwise.

It is possible for the legislative power of a government, so to form iis laws, as to make them extend to, and be in force in countries thereafter to be acquired. This is a possible exercise of power, to which every government is competent. It is said by Mr. Livingston, in his answer to Mr. Jefferson, in the discussion of the question of title to the Batture at New Orleans, that this was done by Spain, in relation to her American possessions thereafter to be acquired. His words are,“

His words are, “A code had long been prepared for the government of the Spanish colonies in the Indies, by which name they designated all their American possessions. It is called the Recopilucion de las leyes de las Indies. It introduces the law of Castile, those of the Partidos and of Toro, that is to say, the whole body of the laws of Spain, in all cases not provided for by the laws of the Indies, and declares that the laws of that collection shall prevail in all the Spanish colonies, as well those

then established, as those which might in future be discovered or established."

"The moment then, that Louisiana became a Spanish province, it was subjected de jure, to the system of laws I have described; and de facto, none other has had the slightest authority since the transfer.” (5th Am. Law Jour.

p. 143.) That such a code as is here described was prepared by the Spanish moparch for his American dominions is certain; and that it was the intention that this code should prevail in all the Spanish possessions in America, may likewise be admitted; but it by no means follows, that it was to prevail in all countries in America, which might thereafter be annexed to the Spanish dominions by treaty, immediately on the ratification thereof, without any further act on the part of the Spanish government, to extend it to such acquired countries; that it was to prevail in countries which, at the date of such annexation, should be inhabited and provided with laws, in countries whose language and laws should be foreign to such code; in countries where, from this cause, as well as for want of promulgation, the means of knowledge of the laws contained in such code, had not been afforded.The intention of this legislative declaration is sufficiently satisfied, by allowing it to extend the law's to which it has reference, to all the then Spanish colonies in America, and to such as might thereafter be established in the said dominions, as well in countries then discovered, as in those thereafter to be discovered; and by allowing it also to express an intention, that the code was to be adapted to, and to prevail in, all the Spanish possessions in America, as well those acquired by treaty as others; but, with respect to the former, that they should be extended there, and made to prevail there, by an act of the government competent for such purpose, after such annexation by treaty.

A view of the Spanish dominions in America, at the date at which the code was given, favors the construction here contended for. The words themselves do not embrace the case of an acquired colony. It is scarcely to be supposed, that such a case was intended by the lawgiving power to be embraced by them; shall we allow a sense and interpretation, a comprehension to words beyond their necessary and proper import? Shall we do this in derogation of the principle of international law before mentioned; in violation of those maxims of justice that should receive a universal recognition? If this construction be not correct, at what point of time was the code of the Indies to be regarded as in force in Louisiana! Was it to be regarded as in torce there, immediately on the occupation of the country by Spain, and without any promulgation or translation of them? or was some further act necessary on the part of Spain to introduce them there? This ques:ion must be answered in the affirmative. I do not, therefore, hesitate to deny, to the words quoted by Mr. Livingston, the effect which he imputes to them. The construction here given, agrees with that given by the Spanish government itself, so far as the acts of that government furnishes any construction.

When Spain took possession of Louisiana, in 1769, after the cession to her by France, no magic influenca followed this act; the laws of the country were not thereby changed; nor had they been changed by the ratification of the treaty in 1762. This change remained to be produced by an act of sovereign power on the part of the Spanish government.

Accordingly, Count O·Reily, clothed with extraordinary powers, at the head of a military force, and as the Governor General of Louisiana, by proclamation made immediately after his occupation of Louisiana, and for reasons therein mentioned, abolished the then existing form of government, and established a new one; abrogated the ancient laws, and introduced the code of the Indies, and took measures to provide the inhabitants with the means of becoming acquainted therewith. The code itself is introduced in qualifying terms, and it was clearly no part of the intention of that proclamation to introduce the 81st article of the ordinance of 1754, but only to introduce that portion of the code of the Indies which was of a general nature, and not that which had relation, exclusively, to the sale and grant of the lands of the Crown. It was not until the following year, that O-Reilly directed his attention to this subject. On the 18th of February, 1770, he published a set of regulations, prescribing the terms and conditions upon which lands should be granted.

It is manifest, from these regulations, that O'Reily did not consider the 81st article of the ordinance mentioned, to be in force in Louisiana. He does not pretend to derive his authority to grant lands from that ordinance; but he assumes the exercise of that power, as one among those given by his commission.

We have the testimony of Morales, the intendant, in the preamble to his regulations, that the power to grant lands belonged to the civil and military Government, after the order of the King of Spain, that is, in virtue of the order of the 24th August, 1770, the powers of the civil and military Go. vernment both centered in the Governor General. To him belonged the power to divide and grant lands in virtue of this order.

If the 81st article of the ordinance of 1754, had been introduced into Louisiana, by the law of nations, in virtue of the Treaty, or by the Legislative declaration contained in the code of the Indies, or by the proclamation of O'Reily, and if it also authorized the Governor General of Louisiana to grant lands, why did O'Reily think it necessary to derive this power from the special terms of his commission? And why was a special order of the King deemed necessary for this purpose?

Morales, the intendant, in the preamble to his regulations, after reciting the power to distribute lands, which had been given to the intendancy, by the decree of the King of Spain, of 1798, proceeds to state the manner in which he intends to exercise that trust, thus: “wishing to perform this important charge, not only according to the 81st article of the ordinance of the intendants of New Spain, of the regulations of the year 1754, cited in the said article, and the laws respecting it, but also with regard to local circumstances; and those which may, without injury to the interest of the King, contribute to the encouragement, and to the greatest good of his subjects already established, or who may establish themselves in this part of his possessions."

If the Sist article of the ordinance mentioned were in force in Louisiana, it was a law obligatory upon Morales, the intendant; a command to him, and from which he could not legally depart. How, then, could he perform this important charge “with regard to local circumstances; and those which may, without injury to the interests of the King, contribute to the encouragement and to the greatest good of his subjects.?

It must be that the intendant here considers the ordinance of 1754 in force only by his adoption, and expresses his intention to adopt it so far, and no farther, than local circumstances should make it expedient. The regulatioris of O'Reily, of Gayoso, and of Morales, in their provisions, and the general policy in which they are dictated, are, moreover, so repugnant to the

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