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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 ihe 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 woulu 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 may think 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 disposes 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 its 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, “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 bere described was prepared by the Spanish moDarch 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, immediutely 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 lau'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 question 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 influence 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 Louisia na 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 Slst 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 Ordinance of 1754, as conclusively to show, that the latter was not in force in Louisiana, in the opinion of the framers of these regulations; for if the ordinance was in force in Louisiana, and the Governor General derived his authority to grant lands from the 12th section of it, he certainly could not annul the provisions of that ordinance from which he derived his authority, by making regulations repugnant thereto.
A comparison of the provisions of this ordinance with those of the regulations mentioned, will show, that there exists a general repugnancy between them, and an examination of the former will also show, that, if it be regarded as having been in force in Louisiana, no concession issued by the Lieutenant Governor, or commandant, can be considered authorized or valid.
The 1st section of the ordinance of 1754, provides, “that, from the date of this my Royal order, the power of appointing sub-delegate judges, to sell and compromise for the lands, and uncultivated parts of the said Do. minions, shall belong hereafter exclusively to the Viceroys and Presidents of my Royal Audiencias of those Kingdoms who shall send them their appointment or commission, with an authentic copy of this regulation."
" The said Viceroys and Presidents shall be obliged to give immediate notice to the Secretary of State and Universal Despatch of the Indias, of the ministers whom they shall make sub-delegates in their respective districts and places where they have been usually appointed, or where it may seem necessary to appoint new ones, for his approbatione”
“Those at present exercising this commission, shall continue. These, and those whom the said Viceroys and Presidents shall hereafter appoint, may sub-delegate their commission to others, for the distant parts and provinces of their stations, as was previously done.”
This section prescribes the authority by which alone a sub-delegate can be appointed. It gives to the Viceroys and Presidents of the Audiencias the exclusive power of making those appointments; makes them the exclusive judges of the places and districts where such appointments may be necessary; and vests the sub-delegates with power to sub-delegate their commission to others for the distant provinces and places of their stations.
Had the Lieutenant Governor of Upper Louisiana, his appointment, as sub-delegate, from the Viceroys or Presidents of the Audiencias? or had he a sub-delegation from one so appointed? It has been proved on behalf of the petitioners, that he had not. The evidence, of the late Lieutenant Governor of Upper Louisiana, to this point, is, that he, and his predecessors, acted as sub-delegate, without any commission, as such; that he, and they, performed the functions of that office in virtue of their commission as Lieutenant Governor which issued from the Governor General of Louisiana; that the practice in other parts of the province, in this respect, was the same as in Upper Louisiana; in all, the Lieutenant Governors were, ex officio, sub-delegates. An appointment from the Viceroys or Presidents of the Audiencias of the Lieutenant Governor to be sub-delegate, is not permitted to be inferred from the performance of the duties of that office; the absence of such appointment, as well as the authority, in virtue of which the duties of the office were assumed, having been proved. According to this evidence, the Lieutenant Governor of Upper Louisiana was not a sub-delegate within the intention of the ordinance. Nothing can be more clear, than that a concession of lands by a Lieutenant Governor who had not been appointed a sub-delegate by the authority prescribed in the recited section ofthe ordinance, can be allowed to possess any validity, if that ordinance be considered as having been in force. The 12th section of this ordinance, which is relied upon on behalf of the petitioners, as authorizing grants of land in Louisiana by the Governor General, does not vest that offcer with power to appoint sub-delegates; this power having been exclusively given, by the 1st section, to the Viceroys and Presidents of the Audiencias, but vests him with precisely the same power and jurisdiction, in relation to the sale and grant of lands, which had been given in previous sections to the Audiencias, and directs, in addition, that certain other officers shall be associated with him, by whose advice confirmations are to issue.
The 12th section is in these words: “In the distant provinces of the Audiencias, or where the scene intervenes, as Carracas, Habanas, Cartagena, Buenos Ayres, Panama, Yucatan, "Camana, Margarita, Puerto Rico, and in other of like situation, confirmation shall be issued by their Governors, with advice of the Officiales Reales, King's (Fiscal Minister) and of the Lieutenant General Letrado, where he may be stationed. The same officers shall also determine the appeals from the sub-delegate, who shall have been, or shall be appointed in each one of the said provinces and islands, without recourse being had to the Audiencia, or chancery of the district, unless the two decisions be at variance, and then this is to be officially, and, by way of consultation, to avoid the expenses of appeal. Wherever there shall be two Officiales Reales, the younger in office shall be the advocate of the Royal treasury in these causes, and the elder, the associate judge of the Governor, using the aid of counsel where there is no Auditor or Lieutenant Governor; and if the question is a point of law, by applying to any lawyer within or out of the district, and where there shall be but one Official Real, any intelligent person of the place may be appointed as the advocate of the Royal treasury.
.6 It shall also be the duty of the Governors, with their appropriate judges, to examine concerning the compositions of the sub-delegates, as provided in respect to the Audiencias."
The 5th section, which prescribes duties to the Audiencias, and the other officers to whom the power of confirmation is given by the ordinance, meaning the Governors mentioned in the 12th scction, is in these words: “The possessors of lands sold, or compromised for, by the respective sub-delegates, from the said year 1700, to the present time, shall not be molested, disturbed, nor informed against now, nor at any time, if it shall appear that they have been confirmed by my Royal person, or by the Viceroys and Presidents of the respective districts while in office; but those who shall have held their lands without this necessary requisite, shall apply for their confirmation to the Audiencias of their district, and to the other officers on whom this power is conferred by the present regulation. These authorities having examined the proceedings of ihe sub-delegates, in ascertaining the quantity and value of the lands in question, and the patent that may have been issued for them, shall determine whether the sale or composition was made without fraud or collusion, and at reasonable prices. This shall be done with the judgment and advice of the Fiscals. After considering every circumstance, and the price of the sale or composition, and the respective dues of "medianata" (first fruits of the half year) appearing to have been paid into the Royal treasury, and the King's money being again paid in the amount that may seem proper, the confirmation of the patent of possessors of these lands, shall be given in my Royal name, by which the property and claim in said lands shall be rendered legal, as well as in the waters and uncultivated parts,