Les Bois v. Bramell. 1806, by James Mackay; and on a plat of the survey, filed with a notice of claim before the board of commissioners organized by virtue of the act of 1805, to examine and report on French and Spanish claims, this of Les Bois was laid down, with six others. Mackay's survey was a private one, made at the instance of the inhabitants of St. Louis, and was not binding on the rights of any one; nor did it profess to exclude the pretensions laid down on the plat, as not being part of the town common, but the reverse. For our further views on the question presented by the instruction, we refer to what is said on it in the case of Mackay's heirs v. Dillon, submitted to us at the same time with the present. The court then instructed the jury as follows: 1. That the inhabitants of the town of St. Louis were confirmed in their claim to commons by the acts of Congress of 1812 and 1831. 2. That the notice of claim of said inhabitants, as filed with the recorder of land titles, and exhibited before the board of commissioners, read here to the jury, is evidence of the extent of the said claim to said commons. 3. If the claim of the plaintiff is included within the boundary of the lands confirmed to the town of St. Louis by the acts of 1812 and 1831, then the jury must find for the defendant; because those acts passed the title to the land in controversy to the inhabitants of said town. These were excepted to. As to the first instruction given, it may be remarked, that by the act of June 13, 1812, Congress provided, that the rights, titles, and claims to town or village lots, out lots, common field lots, "and commons," in, adjoining, and belonging to St. Louis (and other towns) should be, and the same were, thereby confirmed to the inhabitants, &c. That this was a general confirmation of the common to the town as a community no one has ever doubted, so far as the confirmation operated on the lands of the United States; and to which no individual claim or pretension was set up; and the question arising on the instruction is, whether the plaintiff's claim was excepted directly, or by reason of a prior right vested in the plaintiff. The only direct exception in the act is the proviso, That nothing herein contained shall be construed to affect the rights of any persons claiming the same lands, or any part thereof, whose claims have been confirmed by the board of commissioners' for adjusting and settling claims to land in the said territory." The board referred to was organized according to the act of March 2, 1805, with powers to examine such claims as that of the plaintiff, and to decide on their validity; and although, by the act, no power was given to make a conclusive adjudication without the sanction of Congress, yet if any claim was declared good and VOL. IV. 58. MM Les Bois v. Bramell. valid, and recommended for confirmation, it was of the class mentioned in the foregoing proviso, as we suppose, even when acted on under the act of 1805; but by the act of March 3, 1807, § 41, the powers of the commissioners were extended, and confirmations of various classes of claims were authorized to be made by the board conclusively, without the intervention of Congress; and for which patents were to issue, on surveys made by officers of the United States. The foregoing were the only description of titles excepted from the act of 1812; and as the plaintiff's was not one of them, the act did not apply to it in the saving clause. The next inquiry on the first instruction given is, as to the operation of the act of 1831 on the plaintiff's claim. The act of May 26, 1824, gave jurisdiction to the District Court of the United States for the Missouri District, to hear and adjudge, in a mode of proceeding according to the rules governing courts of equity, on all claims of the description, and that were in the situation, of the plaintiff's, the United States being defendants; and either party having the right of appeal to the Supreme Court. The fifth section of the act declares, “That any claim not brought before the District Court within two years from the passing thereof shall be for ever barred, both in law and equity; and that no other action at common law, or proceeding in equity, shall ever thereafter be sustained in any court whatever, in relation to said claim." An act for the relief of Phineas Underwood, and for other purposes, passed the 22d May, 1836, § 2 (1 United States Land Laws, 924), declares, that the time for filing petitions under the act of 1824 shall be and is hereby extended to the 26th day of May, 1828. The act of May 24th, 1828 (4 Lit. & Brown's ed., ch. 90, 298), declares, that the District Courts shall be open for the receiving petitions of claimants, under the act of 1834, until the 26th day of May, 1829, and that the act shall continue in force for the purpose of enabling claimants to obtain a final decision on their claims until the 26th day of May, 1830, and no longer. The plaintiff instituted no proceedings before the District Court under the act of 1824; and on the 26th day of May, 1829, her claim stood and was barred. For further views of this court on the character of the bar, we refer to the cases of Barry v. Gamble, 3 Howard, 55, and Chouteau v. Eckhart, 2 Howard, 352. In January, 1831, the city of St. Louis, and other towns, applied to have their rights of common further confirmed and regu lated; and an act of Congress was passed, declaring,-"That the United States do hereby relinquish to the inhabitants of the several towns of St. Louis, &c., all the right, title, and interest in and to Les Bois v. Bramell. the town or village lots, out lots, common field lots, and commons, -to be held by the inhabitants of the said towns in full property," and to be regulated, or disposed of, for the use of the inhabitants, according to the laws of the State of Missouri." This law vested in the city corporation the town common, in fee simple, and gave full power to the legislature of Missouri to incorporate it into the city, by extending the city charter over it. The importance of the act will be understood, when we examine the plats and other evidences in the record; from which it will be seen, that the city is spreading over the eastern lines of the common, and that it is in part sold out in lots by the corporation already, and fast becoming part of the city. Les Bois standing barred when the act of 1831 was passed, in November, 1832, the city caused the common to be officially surveyed, under instructions from the surveyor-general of Illinois and Missouri, according to the act of 26th May, 1834, § 2 (1 United States Land Laws, ch. 311). This survey was a public one, binding on the United States and the city corporation; and was duly recorded by the surveyor-general in his office. A copy of. the plat is in the record, with a detailed description of landmarks, courses, and distances; and these were given in evidence to the jury in the Circuit Court. Thus stood the defendant's title. On July 9th, 1832, a law was passed by Congress, authorizing commissioners to be appointed to act on claims not confirmed previously; and on the 5th of November, 1833, the board organized under the act declared Les Bois's claim valid; and Congress confirmed it, July 4th, 1836. To avoid the bar, under these circumstances, and to show that neither the act of 1812, or that of 1831, could deprive the plaintiff of her right, it is insisted, she had a vested interest to the land confirmed, when the United States acquired Louisiana, which is protected by treaty stipulation, and that such right no act of Congress could defeat; that by the third article of the treaty of 1803, with France, the inhabitants of the ceded territory were to be incorporated into the Union, to be admitted to the rights, advantages, and immunities of citizens of the United States, and in the mean time they were to be maintained and protected in the free enjoyment of their liberty, property, and religion. And this implied, that after their admission they should be equally protected, and that such would have been the measure of justice applicable to their rights of property by the laws of nations, had the treaty been silent on the subject. On this assumption the plaintiff mainly relies; that it is true in the abstract is not doubted, but it involves several opposing considerations applicable to her title :- 1. Whether such a vested property in the soil existed in Les Bois, before the date of the treaty, as bound the government of Spain to perfect, by the execution of a complete title, the first incipient step. 2. Wheth Les Bois v. Bramell. er the judicial power has any jurisdiction to interfere and enforce such right, supposing it to exist. That this government had imposed on it the same duty to perfect the title that rested on Spain before the country was ceded is not open to question; but this was all the United States were bound to perform. How, then, did the plaintiff's claim stand previous to the cession. Her first decree and order of survey bear date in May, 1802, and the survey was made in August, 1803; but there is no evidence that any part of the land was either occupied or cultivated. The lieutenant-governor's decree is in the usual style, and concludes, "that it is given to serve the interested party to obtain the concession and title in form, from the intendant-general, to whom alone corresponds, by royal order, the distributing and granting of all classes of the royal domain." On the 22d of October, 1798, the king of Spain appointed Morales intendant-general and sub-delegate; he kept his office at New Orleans, and was charged with the superintendence and granting of the public domain in the provinces of Upper and Lower Louisiana, "to the conclusion of all other authority." On July 17th, 1799, Morales published his regulations to the inferior officers and the people of the provinces, so that (in his own language) “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 and 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 and sub-delegates of the intendancy may be informed of what they ought to observe," &c. 2 White's Recopilacion, 234. By article eighteen, it is declared, "Experience proves, that a great number of those who have asked for land think themselves the legal owners of it; those who have obtained the first decree, by which the surveyor is ordered to measure and put them in possession, others after a survey has been made, have neglected to ask the title for the property, and as like abuses continuing for a longer time will augment the confusion and disorder which will necessarily result, We declare that no one of those who have obtained said decrees, notwithstanding in virtue of them the survey has taken place, and that they have been put in possession, can be regarded as owners of land until their real titles are delivered completed, with all the formalities before recited." The formalities recited are found in the three preceding sections, which give precise instructions how the title is to be made out, and where it is to be recorded, by the officers of the general intendancy. The nineteenth article declares, "All those who 'possess' lands in virtue of formal titles made by the governors [such as Delassus was] shall be protected and maintained in their possessions." And by article twenty, "Those who, without the title or pos - Les Bois v. Bramell. session mentioned in the nineteenth article, are found occupying lands, shall be driven therefrom, as from property belonging to the crown," unless they have occupied the same more than ten years. The board of commissioners who confirmed Les Bois's claim acted on the principle, that the regulations of Morales were not in force in Upper Louisiana, more than those of the royal governors, O'Reilly and Gayoso. But as the Lieutenant-Governor, Delassus, referred the claimant in this case, and in all others so far as we know, to the general intendant for a title, and the instructions point out the terms on which a complete title can be had, and the formalities with which it must be clothed, it is difficult to say on what grounds the commissioners come to the conclusion that Morales's regulations were not in force. The rules of proceeding of the board will be found in 5 D. Green's State Papers, 707, and the instructions to which they refer in 2 White's Recopilacion, 228-244. In an affidavit found in the public documents, and furnished by the same board (5 D. Green's State Papers, 708), Delassus states his practice to have been, that, when a petition was presented for land, if he considered the petitioner possessed merits to entitle him to the concession it was granted, subject to the confirmation of the intendant-general, and that he made an order of survey; these he delivered to the petitioner; but that he kept no books, nor did he make any registry of the decree or order of survey; and that whether the surveyor did so or not was no concern of his, the lieutenant-governor's, nor did he deem it material when the survey was made; as to this, there was no time limited. From this loose mode of proceeding, it is manifest the whole matter of perfecting the title was referred to the intendant-general; and he, and those acting subordinate to him in this respect, were undoubtedly governed by the intendant's regulations. As the king's representative and deputy, he was to judge whether the considerations moving the lieutenant-governor were such as warranted the grant; next, whether conditions had been performed, &c. The granting power was in a great degree political, and altogether the exercise of royal authority, and of course subject to no supervision but by the same high authority itself. By the treaty, the United States assumed the same exclusive right to deal with the title in their political and sovereign capacity, nor could the courts of justice be permitted to interfere; if they could, and by their decrees complete the title, all power over the subject might have been defeated, not by the courts of the Union only, but by the State courts also. And therefore the contemporary construction and practical understanding of the treaty for forty years has been, that claims like the plaintiff's had no standing in a court of justice until confirmed by Congress, or by its authority. Next, it is insisted that the confirmation of 1836 established the MM * |