Page:United States Statutes at Large Volume 4.djvu/611

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TWENTY-SECOND CONGRESS.Sess. I. Ch. 180.1832.

Statute Ⅰ.

July 9, 1832.

Chap. CLXXX.—An Act for the final adjustment of private land claims in Missouri.^[1]

1833, ch. 84.
All unconfirmed land claims to be examined.Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it shall be the duty of the recorder of land titles in the state of Missouri and two commissioners

↑ Notes of the decisions of the Supreme Court on land titles in Missouri.
The state of Missouri was formerly part of the territory, first of France, next of Spain, then of France, who ceded it to the United States by the treaty of 1803, in full propriety, sovereignty and dominion, as she had acquired and held it; by which this government put itself in place of the former sovereigns, and became invested with all their rights, subject to their concomitant obligations to the inhabitants. Both were regulated by the law of nations, according to which the rights of property are protected, even in the case of a conquered country; and held sacred and inviolable when it is ceded by treaty, with or without any stipulation to such effect: and the laws, whether in writing, or evidenced by the usage and customs of the conquered or ceded country, continue in force, until altered by the new sovereign. Strother v. Lucas, 12 Peters, 410.
No principle can be better established by the authority of the Supreme Court, than “that the acts of an officer, to whom a public duty is assigned by his king, within the sphere of that duty, are prima facie taken to be within his power.” The principles on which it rests, are believed to be too deeply founded in law and reason, every to be successfully assailed. He who would controvert a grant executed by the lawful authority, with all the solemnities required by law, takes on himself the burden of showing that the officers has transcended the powers conferred upon him; or that the transaction is tainted with fraud. Ibid.
Where the act of an officer to pass the title to land according to the Spanish law, is done contrary to the written order of the king, produced at the trial, without any explanation; it shall be presumed that the power has not been exceeded; that the act was done on the motive set out therein; and according to some order known to the king and his officers, though not to his subjects; and courts ought to require very full proof, that he had transcended his powers, before they so determine it. Ibid.
In favour of long possession and ancient appropriation, every thing which was done shall be presumed to have been rightfully done; and though it does not appear to have been done, the law will presume that whatever was necessary has been done. Ibid.
The stipulations of the treaty ceding Louisiana to the United States affording that protection or security to claims under the French or Spanish government to which the act of Congress refers, are in the first, second, and third articles. They extended to all property until Louisiana became a member of the Union; into which the inhabitants were to be incorporated as soon as possible, “and admitted to all the rights, advantages and immunities of citizens of the United States.” The perfect inviolability and security of property is among these rights. Delassus v. The United States, 9 Peters, 117.
The right of property is protected and secured by the treaty, and no principle is better settled in this country, than that an inchoate title to lands is property. This right would have been sacred, independent of the treaty. The sovereign who acquires an inhabited country, acquires full dominion over it; but this dominion is never supposed to divest the vested rights of individuals to property. The language of the treaty ceding Louisiana, excludes any idea of interfering with private property. Ibid.
On the 18th of April, 1802, the lieutenant-governor of Upper Louisiana granted sixteen hundred arpents of land near certain rivers named in the grant, with directions to survey the same in a vacant place of the royal domain; but no survey was made before the cession of Louisiana to the United States. By the court—As the grant contained no description of the land granted, and was not located within the time prescribed by the act of Congress, of the 10th of March, 1804, it comes directly within the point decided by the Supreme Court in the case of John Smith, T., and cannot be confirmed. Wherry v. The United States, 10 Peters, 338.
In repeated decisions the Supreme Court have affirmed the authority of local governors, under the crown of Spain, to grant land in Louisiana, before the same was ceded by Spain to France: and the court have also affirmed the validity of descriptive grants, though not surveyed before the 11th of March, 1804, in Missouri, and the 24th of January, 1818, in Florida. Mackey v. The United States, 10 Peters, 340.
A grant or concession made by an officer who is by law authorized to make it, carries with it prima facie evidence that it is within his powers. No excess of them, or departure from them, is to be presumed. He violates his duty by such excess, and is responsible for it. He who alleges that an officer intrusted with an important duty has violated his instructions, must show it. Delassus v. The United States, 9 Peters, 117.
The instructions of governor O’Reilly, relative to granting lands in Louisiana, were considered by the court in 8 Peters, 455. These regulations were intended for the general government of subordinate officers, and not to control and limit the power of the person from whose will they emanated. The Baron De Carondelet must be supposed to have had all the powers which had been vested in Don O’Reilly, and a concession ordered by him as valid as a similar concession directed by governor O’Reilly would have been. Ibid.
A concession of land was made by the lieutenant governor of Upper Louisiana, at the time when the power of granting lands was vested in the governors of provinces. This power was, in 1799, after the concession, transferred to the indendant-general: and after this transfer, in January, 1800, the order of the survey of land was made by the lieutenant-governor. The validity of the order of survey depends on the authority of the lieutenant-governor to make it. The lieutenant-governor was also a sub-delegate, and as such was empowered to make inchoate grants. The grant was confirmed. Chouteau’s heirs v. the United States, 9 Peters, 137.
The transfer of the power to make concessions of lands belonging to the royal domain of Spain, from the governor-general to the intendant-general, did not affect the power of the sub-delegate, who made this concession. The order in this case is the foundation of title, and is, according to the act of

[p565-1] Notes of the decisions of the Supreme Court on land titles in Missouri.
The state of Missouri was formerly part of the territory, first of France, next of Spain, then of France, who ceded it to the United States by the treaty of 1803, in full propriety, sovereignty and dominion, as she had acquired and held it; by which this government put itself in place of the former sovereigns, and became invested with all their rights, subject to their concomitant obligations to the inhabitants. Both were regulated by the law of nations, according to which the rights of property are protected, even in the case of a conquered country; and held sacred and inviolable when it is ceded by treaty, with or without any stipulation to such effect: and the laws, whether in writing, or evidenced by the usage and customs of the conquered or ceded country, continue in force, until altered by the new sovereign. Strother v. Lucas, 12 Peters, 410.
No principle can be better established by the authority of the Supreme Court, than “that the acts of an officer, to whom a public duty is assigned by his king, within the sphere of that duty, are prima facie taken to be within his power.” The principles on which it rests, are believed to be too deeply founded in law and reason, every to be successfully assailed. He who would controvert a grant executed by the lawful authority, with all the solemnities required by law, takes on himself the burden of showing that the officers has transcended the powers conferred upon him; or that the transaction is tainted with fraud. Ibid.
Where the act of an officer to pass the title to land according to the Spanish law, is done contrary to the written order of the king, produced at the trial, without any explanation; it shall be presumed that the power has not been exceeded; that the act was done on the motive set out therein; and according to some order known to the king and his officers, though not to his subjects; and courts ought to require very full proof, that he had transcended his powers, before they so determine it. Ibid.
In favour of long possession and ancient appropriation, every thing which was done shall be presumed to have been rightfully done; and though it does not appear to have been done, the law will presume that whatever was necessary has been done. Ibid.
The stipulations of the treaty ceding Louisiana to the United States affording that protection or security to claims under the French or Spanish government to which the act of Congress refers, are in the first, second, and third articles. They extended to all property until Louisiana became a member of the Union; into which the inhabitants were to be incorporated as soon as possible, “and admitted to all the rights, advantages and immunities of citizens of the United States.” The perfect inviolability and security of property is among these rights. Delassus v. The United States, 9 Peters, 117.
The right of property is protected and secured by the treaty, and no principle is better settled in this country, than that an inchoate title to lands is property. This right would have been sacred, independent of the treaty. The sovereign who acquires an inhabited country, acquires full dominion over it; but this dominion is never supposed to divest the vested rights of individuals to property. The language of the treaty ceding Louisiana, excludes any idea of interfering with private property. Ibid.
On the 18th of April, 1802, the lieutenant-governor of Upper Louisiana granted sixteen hundred arpents of land near certain rivers named in the grant, with directions to survey the same in a vacant place of the royal domain; but no survey was made before the cession of Louisiana to the United States. By the court—As the grant contained no description of the land granted, and was not located within the time prescribed by the act of Congress, of the 10th of March, 1804, it comes directly within the point decided by the Supreme Court in the case of John Smith, T., and cannot be confirmed. Wherry v. The United States, 10 Peters, 338.
In repeated decisions the Supreme Court have affirmed the authority of local governors, under the crown of Spain, to grant land in Louisiana, before the same was ceded by Spain to France: and the court have also affirmed the validity of descriptive grants, though not surveyed before the 11th of March, 1804, in Missouri, and the 24th of January, 1818, in Florida. Mackey v. The United States, 10 Peters, 340.
A grant or concession made by an officer who is by law authorized to make it, carries with it prima facie evidence that it is within his powers. No excess of them, or departure from them, is to be presumed. He violates his duty by such excess, and is responsible for it. He who alleges that an officer intrusted with an important duty has violated his instructions, must show it. Delassus v. The United States, 9 Peters, 117.
The instructions of governor O’Reilly, relative to granting lands in Louisiana, were considered by the court in 8 Peters, 455. These regulations were intended for the general government of subordinate officers, and not to control and limit the power of the person from whose will they emanated. The Baron De Carondelet must be supposed to have had all the powers which had been vested in Don O’Reilly, and a concession ordered by him as valid as a similar concession directed by governor O’Reilly would have been. Ibid.
A concession of land was made by the lieutenant governor of Upper Louisiana, at the time when the power of granting lands was vested in the governors of provinces. This power was, in 1799, after the concession, transferred to the indendant-general: and after this transfer, in January, 1800, the order of the survey of land was made by the lieutenant-governor. The validity of the order of survey depends on the authority of the lieutenant-governor to make it. The lieutenant-governor was also a sub-delegate, and as such was empowered to make inchoate grants. The grant was confirmed. Chouteau’s heirs v. the United States, 9 Peters, 137.
The transfer of the power to make concessions of lands belonging to the royal domain of Spain, from the governor-general to the intendant-general, did not affect the power of the sub-delegate, who made this concession. The order in this case is the foundation of title, and is, according to the act of

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Page:United States Statutes at Large Volume 4.djvu/611

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