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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,” foc. "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
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 cher 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 location 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 Gayon, 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 tillage, 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; filty 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 himself, 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 a nuinber of negroes as would entitle him, at the 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 Minois, 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 ia 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 pozts, 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, ail 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.”
That the regulations, in which these sections are found, are of a date subsequent to the concession, in this case, forms no reason why they may not impose duties on the claimant, and prescribe forfeitures for a failure to perform those duties. Might not a forfeiture of the present claim have been adjudged under each of these sections? No settlement, no improvement was made, as required by either. This omission, it is declared by each of these sections, is to occasion a forfeiture of the claim. .
on The right of the party, such as it was at the change of the government, is that upon which the court is to decide. If, before this time, it had been abandoned, forfeited, or in any degree impaired, under the laws of Spain, the objection to its confirmation, which Spain might have raised, for either of these causes, may be raised with the same force before this court. The precise clain which existed against Spain, at the date of the transfer, is that which the United States is bound to satisfy. What, then, could the ancestor of the petitioners, at the date of the transfer, have claimed against Spain, on account of this concession? Could he have claimed a confirmation, without having shown a performance, on his part, of all that is required in the 4th and 14th sections, above recited? Could he have claimed a confirmation of his title, except in virtue of some law? In virtue of what law could he have demanded this? What law authorized him to expect its confirmation? If there was none, the claimant could have no just ground to expect that his claim would have been confirmed, and therefore no ground of complaint.
But complete titles have been produced to show, that, in some instances, the regulations have not been conformed to by the Governor General, and by the Intendant, in confirmations made by them; and it is thence insisted, that they were not in force in the province of Upper Louisiana, or that if they were in force there, they were only intended to provide for grants to emigrants and new settlers, and were not intended to provide for grants to the inhabitants generally; and that some law must be presumed, which authorized grants of land to the inhabitants generally, in pursuance of which, the confirmations mentioned were made. In answer to this, it may be observed, in addition to what has been before said relative to this subject, that the regulations of Gayoso refer, by express words, to the province of Upper Louisiana, by the name of Illinois, the name by which it was then known; and that the regulations of Morales are general, and are indubitably intended to extend to every part of the province. This is equally the intention of each set of the regulations which have been mentioned. The regulations which we have, do not permit us to believe that there existed others; Morales, in the preamble to those made by him, mentions those of O'Reily, and of Gayoso, in a manner which implies that these were all of which he had any knowlçdge, and shows, that he was making regulations which were to offer the only means by which lands were to be obtainod; his language is, "That all persons who wish to obtain lands may know in what manner they ought to ask for them, and on what conditions lands can be granted or sold; that those who are in possession, without the necessary titles, may know the steps they ought to take to come to an adjustment; that the commandants as sub-delegates of the intendency, may be informed of what they ought to observe,” &c. This prcamble excludes the presumption, that other laws existed, by which titles could be obtained; and the regulations themselves, exclude all belief that any law existed, under which a confirmation of thc title in question could have been claimed.
That the Governor General, who exercised a legislative power generally, and particularly for the distribution of lands, should feel himself authorized to dispense with the observance of any of the provisions of his own laws, is not strange. Such a dispensing power is incident to the legislative department of every government. Legislation implies discretion, in respect of the rules which are to be prescribed. The Governor General, with whom it was to exercise the power to make the law, could change it, or could dispense with its observance, either on his part, or on the part of the claimant; and it is probable that instances of the exercise of this dispensing power were not rare. That he should have been influenced by the particular circumstances of any case not within the law, or even by personal considerations of regard, in making grants not provided for by his own laws, is a presumption more to be relied upon, than that which is contended for on the part of the petitioners.
In relation to the disposition of the Royal domain, the Governor General and the Intendant successively represented, to some extent, the power of the King; to what extent, we are left to infer from their recorded acts only. The Congress of the United States succeeded to the powers of the Intendant, and of the crown of Spain. What portion of this power has Congress delegated to this court ? It cannot be admitted, as contended for at the bar, that, because the Governor General, out of the plenitude of his power, or the Intendant, on succeeding to that power, might have confirmed the present claim, notwithstanding there existed no law under which its confirmation might have been required; that, therefore, this court may confirm it. It cannot be admitted that this court succeeds to the entire power of the Intendant. Here it is proper to observe the vast distance which, in general, separates the boundary that limits the inquiry of a court of justice, from that which limits the inquiry of a Legislature, in relation to the considerations, which may properly influence the decisions of the one, or the acts of the other, especially in questions between individuals and the government. Courts are governed by rules of law: these form with them the subject of inquiry ; the limits of their jurisdiction. But it is otherwise with the legislature: the defect in the law, its inadequacy to afford redress, is, in general, not only the cause of, but is necessary to justify, an application to that body. And on an application to this body for any purpose of relief, the claim to such relief may be urged upon every consideration which might be supposed to influence the deliberation of wise and good men, in the exercise of a discretion limited only by the constitution. That justice, clemency, and fostering care, which a government should extend to its citizens ; that policy which should direct its measures, may all be invoked in support of a claim, when the legislature is the tribunal addressed. There must necessarily be reposed a latitude of discretion, equal to every emergency, in some department of every government, to enable it fully to display either wisdom or justice. This discretion, the King of Spain, and, to some extent, the Intendant, might have exercised in relation to applications for grants or confirmations. What portion of this discretion has Congress thought proper to delegate to this court, is a question which again rccurs. The answer is, none. They have leftit in the exercise of those powers which are common to courts of justice in general; in its determinations, they have confined it to rules of law; there are no words in the act which show an intention, on the part of Congress, to clothe it with the extraordinary powers of the legislature, in relation to these claims ; to confer upon it the power to determine what would be ex