BARRY v. GAMBLE

The cause was submitted upon printed arguments, by Lawless for the plaintiff in error, and Spaulding for the defendant in error. These arguments occupy nearly fifty pages in print, and the Reporter regrets that his limits will not permit their insertion, in extenso.

Lawless argued that the power of the government of the United States, after the cession of Louisiana, was not as great over incomplete titles to land as that of the King of Spain; and although it might be true that the latter possessed the power of recalling the title and granting the land to another person, yet the government of the United States was controlled by the treaty of cession, by the law of nations, and by the Constitution and laws of the United States. The question presented to the officers of the United States was not whether the King of Spain could have arbitrarily annulled the grant to Mackay, but whether, at the date of the treaty, it was not entitled, under the laws and usages of the Spanish government, to be consummated and clothed with the forms of a complete title. He then proceeded thus:

"But it was not merely complete titles that constituted property, and proof of property, in land, under the French and Spanish government in Louisiana. Those grants and orders of survey, made by the lieutenant-governor of Upper Louisiana, of which the Supreme Court of Missouri speaks with such contempt, constituted property, and imparted a right of property, just as much as a complete title could do. This has been specifically laid down as law by the Supreme Court of the United States. In every case, on appeal from the United States District Court of Missouri, under the act of 1824, in which the decree of that court was reversed, and the claim confirmed, the Supreme Court of the United States based their confirmation on the ground that such a title created property, and, as such, was protected by the treaty. In the case of Delassus v. The United States, and in this very case of Mackay's Widow and Heirs v. The United States, Chief Justice Marshall, who delivered the opinion of the court, on this head is unambiguous and peremptory. `In Delassus' case,' says the chief justice, `the language of the treaty excludes every idea of interfering with property — of transferring lands which had been severed from the royal domain.' In Mackay's case, the chief justice reiterates this doctrine; indeed, not only the reasoned opinion of the Supreme Court of the United States in this case, as reported in 9 Peters, treats the grant to Mackay as having constituted property, and a title to the land described in it at the date of the treaty, but the formal decree of the court, as the same is set out on the present transcript, exhibits this ground of confirmation. The court, on turning to this decree, as spread on the transcript, will find these words: `It is further ordered, adjudged, and decreed, that the title of the petitioners to the land described in this petition to the District Court is valid by the laws and treaty aforesaid, and the same is hereby confirmed as therein described, and that the surveyor of the public lands in Missouri be, and is hereby, directed to survey the quantity of land claimed in the place described in the petition and grant, or concession.'

"It is manifest, from the terms of this formal decree, that the Supreme Court of the United States took a very different view of the original title of Mackay from that which the Supreme Court of Missouri has presented. It is difficult to conceive how the Supreme Court of Missouri, with those opinions and the decree in favour of Mackay before them, could have attributed to the grant to Mackay such an unsubstantial and shadowy character, as not only to be liable to be annulled by the order of an absolute king, but by the arbitrary fiat of an intendant-general at New Orleans; and it is still more difficult to conceive how, with the treaty before them, and the decree of the Supreme Court based upon that treaty, they could have come to the conclusion that Mackay had no property in the land described in his petition and concession at the date of the treaty.

"It is submitted, therefore, that the Supreme Court of Missouri, when they treat the grant to Mackay, and his title under it to the land which it describes, as a something which Congress might, or might not, as it best pleased them, annul or acknowledge, do not sufficiently respect the decisions of this high court, or do not understand them.

"We have already observed, that whatever might have been the power of the Spanish king over the grant to Mackay, previous to its being perfected into a complete title at New Orleans, the treaty of cession, and transfer of the province of Louisiana, for ever protected the grantee from its arbitrary exercise, and that no power was imparted to Congress, other than that of confirming the grant if the treaty protected it, and which power has had its final action.

"But we must deny, with all due respect to the Supreme Court of Missouri, that, previous to the treaty of cession, the grant to Mackay, and his right and title to the land described in that grant, were so entirely at the mercy of the government, be that government Spanish or French, as the opinion of the Supreme Court would intimate.

"The established fact, that Mackay's grant created a right of property, repels such a doctrine. It is true, that the King of Spain was, in a political sense, and as contradistinguished from constitutional sovereigns, an absolute monarch; but it is no less true, that in Spain and her colonies the rights of property were religiously respected and protected. The `Recopilacion,' the `siete partidas' under Spain; the custom of Paris, under the kings of France, were as protective of private rights, as English or American law could be, and perhaps more so. When it is considered, that grants and orders of survey in Upper Louisiana were disposed of and adjudicated upon as property; when the records of that province abundantly prove, that property of this description was sold and transferred inter vivos, and descended, and became distributable ab intestato, and was the subject-matter of last wills and testaments, it would seem to be a necessary consequence, that such property was protected by law, and that the title to it was not at the mercy either of the King of Spain or the First Consul of France, and still less of the intendant-general at New Orleans.

"In every case (and few can be cited) in which land, previously granted by the authorities of Louisiana, has been conceded to a third person, it will be found, either that the first grant was forfeited by the non-performance of a condition, or that the land included in it was formally re-united to the royal domain. It will be seen, by reference to all the concessions and grants, even those which have been consummated by the signature of the governor-general previous to 1798, or that of the intendant-general and assessor subsequent to that year, that, so cautious was the government and careful, in their protection of private vested rights, there was uniformly a proviso or saving clause in each grant, declaring that it should prejudice nobody."

Lawless then argued, that Congress had never intended to annul the grant to Mackay; that the 4th section of the act of 1805, and 5th section of the act of 1807, did not include it, because they referred to, and operated upon, only such grants or incomplete titles as bore date subsequent to the 1st of October, 1800, whereas the grant to Mackay was in September, 1799. And admitting, for the sake of argument, that it was affected by those acts, yet the forfeiture was waived by the United States, and his claim placed on a perfect level with every other by the acts of 1824, 1826, and 1828.

With regard to the opposing titles, under the New Madrid location, Mr. Lawless contended, that it was void, because laid upon land which was not "public land," because it belonged to Mackay; or, if it was public land, it was not land "the sale of which had been authorized by law," and referred to the opinions of Mr. Wirt and Mr. Butler in the "Opinions of the Attorneys-General of the United States," edited by Gilpin, pp. 263, 273, 1199; and then proceeded thus: —

We have endeavoured to demonstrate, that the very first element, the subject-matter itself, of Lafleur's location was wanting; that the land covered by his location was not public land, and never has been since the date of the grant of it to James Mackay, in 1799.

As to the second requisite, that the location should be made on land, the sale of which was authorized by law, the question presents itself, by what law? The only law that regulated, at that time, the sale of public land, was the act of February 15th, 1811, (2 Story's Laws, p. 1178.)

By the 10th section of that act, the President of the United States is authorized to direct such of the public lands as shall have been surveyed to be offered for sale, with the exception,

1. Of section No. 16 in each township;

2. Of a tract reserved for the support of a seminary of learning;

3. Of all salt springs, lead mines, and lands contiguous thereto;

4. Of all tracts of land, the claim to which has been filed in due time, and according to law presented to the recorder, for the purpose of being investigated by the commissioners appointed for ascertaining the right of persons claiming lands in the territory of Louisiana: (by the act of Congress, June 4th, 1812, styled, under the new organization, the Territory of Missouri.)

It must be conceded, that, under this 10th section of the act of 1811, the President had no authority to direct that any land should be offered for sale, until after the survey thereof.

The object of this inhibition was, manifestly, that the system of surveys should be fully established, and the sales and entries in the land-offices should conform to the sectional divisions and subdivisions.

It is no less manifest, that another object in thus restricting the power of the President was, to ascertain the precise location of the salt springs and lead mines in the territory of Missouri, and the quantity of land contiguous thereto, and which, for the working of those mines, ought to be reserved from public sale.

It is equally clear, that a respect for vested rights, and for the treaty of cession, dictated the reservation of lands included in claims filed, under the requirements of the acts of Congress, in the office of the United States recorder.

Now, it really seems difficult to comprehend on what principle a New Madrid locator could treat as land authorized to be sold, and as public land, that very land which the President of the United States was forbidden so to treat.

The counsel for the plaintiff in error respectfully contends, (with all deference to the Supreme Court of Missouri,) that the exceptions and reservations, and conditions as to surveys in the 10th section of the act of 1811, are, and were, very good and wise provisions, and that a location, such as that under Baptiste Lafleur, being made in total disregard and violation of those enactments, is not an irregularity merely, but an absolute nullity.

The effort by the Supreme Court of Missouri to cure the original defects of the location by the operation of the act of 1822, has been already commented on, and the fallacy of the reasoning, it is hoped, established. That act certainly did not cure the defect of a location on a salt spring, or a lead mine, or a sixteenth section, still less upon private property.

It may be that the act of 1822 was concocted and intended to effect such impolitic and iniquitous results, but, fortunately, the terms of that act do not justify such an application of its provisions, and certainly the intention of those who applied for and obtained its passage is entitled to no consideration.

A proclamation by the President of the United States was not issued till 1823, and of course no sale of lands till that year took place in Missouri. The surveys were not returned till 1822. It was impossible that the President could have known what lands he should direct to be sold until those surveys were returned and examined, and approved at Washington city.

It was under the 3d section of the act of 17th of February, 1818, that the President directed the lands in the district of St. Louis to be offered for sale. That law did not, in any respect, affect the exceptions and reservations in the 10th section of the act of 1811. The 3d section of the above act of 1818 provides, that whenever a land-office shall have been established in any of the "districts for the land-office" created by the 1st section, the President shall be authorized to direct so much of the lands, lying in such district as shall have been surveyed according to law, to be offered for sale, with the same reservations and exceptions, and on the same terms and conditions, in every respect, as was provided by the 10th section of the act of 1811.

Thus, it may not only be contended, that, notwithstanding the act of 1811, the President was not empowered to direct a sale until after the passage of the act of 1818, which created the machinery of sale, and portioned out Missouri into "land districts."

There was no law for the sale of the land in the St. Louis district at all in force at the date of the location by Hunt, under Lafleur, to wit, on the 17th of July, 1817. There was, at that time, in existence, neither a St. Louis land district, nor a St. Louis land-office, nor, as has been shown, any public survey made according to law. The land in Missouri (at least in that region of it in which Mackay's grant is located) was, on the 17th of July, 1817, in the same state as on the date of the last private survey made under the Spanish and American governments respectively.

How, then, can it be successfully argued, that a location thus premature — thus, not only not authorized, but in direct violation of two acts of Congress, was only an "irregularity?" The case of Lindsay and others v. Lessee of Miller, 6 Peters, 672, and the case of Jackson v. Clark and others, 1 Peters, 628, have, it is submitted, no bearing or analogy to the case now before this court. In those cases the question arose on a survey, which was manifestly only irregular from the want of certain technical formalities. The surveys, when made, were made on land which lawfully could have been surveyed. The surveys were not absolutely void, and the Supreme Court of the United States therefore decided that the act of 1807 protected them, and that no location of a Virginia military warrant under that act could lawfully be made upon land which had previously been so surveyed.

If there had been a law specifically prohibiting such surveys, or if they had been made-on land not by law susceptible of such surveys, no doubt they would have been void, and the Virginia military warrant would have been well laid upon them.

It may be observed, also, that those surveys, though irregular, were made officially, and were based on a substantial legal right in the person for whom they were made; whereas the New Madrid location in the present case was, as has been shown, an ex parte private act of an interested individual, who had no other colour of claim to the land, and was entirely at his own risk. If such a location be declared valid, the locator must necessarily have exercised, in his own case, a high judicial function, namely, the construction of an act of Congress, and not only that, but the functions of a jury of twelve men on a question of fact, and of a witness to prove the fact.

1st. The "locator" construed the words in the act of 1815, "public land, the sale of which is authorized by law," to mean land which, though not at the date of his location authorized, as public land, to be sold, might, thereafter, by possibility, be "authorized to be sold."

2d. The locator assumed the fact, that land which his location called for was "public land."

3d. The locator assumed the fact, that the land located by him contained neither salt spring nor lead mine, nor was "contiguous" to a salt spring or lead mine.

4th. The locator assumed the fact, that when the public surveys should be made, the land would certainly not include, or interfere with, the sixteenth section.

5th. That it would not interfere with seminary land.

6th. That his location would cover no land included in a Spanish or French grant, or order of survey.

This would have been a portentous power, indeed, to vest even in the New Madrid sufferer; how much more productive of injustice and spoliation, if imparted to a New Madrid speculator!

The counsel for the plaintiff in error, therefore, in conclusion, submits —

1st. That the title to the specific land in dispute is protected by the treaty of cession, and could only be affected or divested by judicial action;

2d. That the title of James Mackay and his heirs has been confirmed by the Supreme Court, because of its original validity, and its being protected and guarantied by the treaty of cession;

3d. That previous to the confirmation of the grant to Mackay, the land included in it has never been re-annexed to the royal domain, or to the public land of the United States;

4th. That the location by Hunt and Lafleur, on the 17th July, 1817, was not merely "irregular," but was absolutely void.

5th. That Congress has not given, nor could give, by any retroactive law, validity as against a vested right to a location void ab initio;

6th. That the acts of Congress of 2d March, 1805, section 4, and of March 3d 1807; section 5, have no operation on the grant to Mackay, inasmuch as this grant bears date previous to the 1st October, 1800;

7th. That, even if the acts of 1805 and 1807 bere on the grant to James Mackay, the acts of Congress of 1824, and the acts in amendment and continuation of that, have remitted Mackay and his heirs to all their original right and title;

8th. That the patent, given in evidence by the defendant in error, having been shown to be based on a void location, is itself void at law and in equity;

9th. That the patent having been issued in the year 1827, and pending the protective action of the law of 1824, as respects French and Spanish claimants and grantees, the patentee and his assigns are bound to that act as by a lis pendens;

10th. That the protest filed in the office of the surveyor-general at St. Louis, by the agent of the widow and heirs of James Mackay, being three years before the date of the patent under Lafleur, is notice to Lafleur and his legal representatives of the claim and grant of Mackay;

11th. That the confirmation, by the Supreme Court, of the grant to James Mackay, and the patent in pursuance of that decree, which has been issued to the confirmees, constitute a full and conclusive proof of title to the land in dispute, and therefore ought to prevail against the location under Lafleur, and the patent issued and based upon it; and

12th. That the judgment and opinion of the Supreme Court of Missouri, being against a right and title protected by treaty, and specially set up and claimed under a treaty and a decree of the Supreme Court of the United States, ought to be reversed.

Spaulding, for the defendant in error, stated the case, commented on the nature of an incomplete title, with the power of the government over it, and proceeded thus: —

The position, then, which I assume in relation to the title set up by the plaintiff in error is, that under the operation of different acts of Congress, the negligence of Mackay, the holder, has extinguished the claim. Applying the provisions of these acts of Congress to the title set up by the plaintiff in error, it is manifest that Mackay's claim was barred, by his own negligence, when the title of Lafleur was initiated, and up to the time it was completed by the patent.

The 1st section of the act of 1805, (2 Story's Laws United States, 966,) provides for the confirmation of incomplete titles bearing date prior to the 1st of October, 1800; the 2d section makes grants to settlers who had made improvements by permission of the Spanish officers; the 4th section authorizes those who held land by complete titles, and requires every person who claimed land, either by the 1st section of the act, under an order of survey, dated prior to October, 1800, or under the 2d section, by a settlement under permission of the Spanish officers, or by any incomplete title dated subsequent to the 1st day of October, 1800, to file, before the 1st day of March, 1806, with the recorder, a notice in writing, stating the nature and extent of his claim, together with a plat of the tract claimed; and further required that he should, on or before that day, deliver to the said recorder, for the purpose of being recorded, every grant, order of survey, deed, conveyance, or other written evidence of his claim: then, by the proviso to this section, a failure to give the notice, or to record the evidence of title, is made a bar to the claim, and the documents which should have been recorded are never to be received in evidence against a grant from the United States.

The 4th section of the act of 1807, (2 Story's Laws United States, 1060,) extends the jurisdiction of the commissioners to all claims to land in their district, where the claim is made by a person who was an inhabitant of Louisiana, c., and authorizes the commissioners to decide according to the laws and established usages and customs of the French and Spanish governments, upon all such claims. This section extends the time for filing notices of the claims, and written evidences of claims, to the 1st day of July, 1808, and declares that the rights of such persons as shall neglect to do so within the time limited by the act, shall, so far as they are derived from or founded upon any act of Congress, ever after be barred, and become void, and the evidences of their claims shall never after be admitted as evidence in any court of law or equity whatever.

This last section extends the jurisdiction to all descriptions of claims, and gives the utmost latitude to the commissioners in seeking the rule by which the claims are to be confirmed, while, at the same time, it is just as imperative as the former law, in requiring the exhibition of the claim and the recording of the written evidence of title. So, the 7th section of the act of 13th June, 1812, (2 Story's Laws, 1260,) contains provisions which have the same effect upon claims and evidences of title not filed and recorded before the 1st of December of that year, declaring that the evidence of the claims shall never be admitted against any grant from the United States.

This court has fully considered these acts in the case of Strother v. Lucas, 12 Peters, 448, and, remarking generally upon their provisions, the court says — "Congress, well aware of the state of the country and villages, wisely and justly went to the extent perhaps of their powers, in providing for the security of private rights, by directing all claimants to file their claims before a board especially appointed to adjust and settle all conflicting claims to lands. They had in view another important object, to ascertain what belonged to the United States, so that sales could be safely made, the country settled in peace, and dormant titles not be permitted either to disturb ancient possessions, or to give to their holders the valuable improvements made by purchasers, or the sites of cities which had been built up by their enterprise. Accordingly, we find that, by various acts, the time of filing such claims is limited, after which they are declared void, as far as they depend on any act of Congress, and shall not be received in evidence in any court, against any person claiming by a grant from the United States.

"These are laws analogous to acts of limitation for recording deeds, or giving effect to the awards of commissioners, for settling claims to land under the laws of the states; the time and manner of their operation, and the exceptions to them, depend on the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which calls for their enactment. Reasons of sound policy have led to the general adoption of laws of both descriptions, and their validity cannot be questioned. Cases may occur where the provisions of a law may be such as to call for the interposition of the courts, but these under consideration do not. They have been uniformly approved by this court, and ought to be considered as settled rules of decision, in all cases to which they apply."

The court, then, in applying these laws to a title as old as 1787, at page 454, says — "We must, then, take the defendant as one holding the premises in controversy by a grant from the United States, and, as their grantee, entitled to all the protection of the laws appropriate to the case." — "The plaintiff, therefore, is brought within the two provisions of the laws; that by Madame Chancellier not having filed her claim within the time limited by law, she could not set up any claim, under any act of Congress, or be permitted to give any evidence thereof in any court, against a person having a grant from the United States, under the confirmation of the commissioners and the act of 1812."

In the case now before the court, we have an exemplification of the very evils which the Court, in the case of Strother v. Lucas, considered these acts of Congress designed to prevent. We have a man pointing out a portion of unoccupied waste land, as public land, liable to be appropriated by the location of a New Madrid certificate; and after it has been so appropriated and patented by the government, we have a claim set up, by the heirs of that man, under a dormant title, which had been held back, notwithstanding the imperative provisions of these acts of Congress, and stating, on the face of their petition, that it had never been presented to any of the tribunals established for the investigation of such titles.

Had the claim of Mackay been exhibited and recorded as the acts of Congress required, then the 10th section of the act of 3d March, 1811, (2 Story, 1200,) would have expressly reserved the land from sale, until the final action of Congress upon the claim, and a person attempting to appropriate it, by the location of a New Madrid certificate, would have acted with notice that such claim existed; but, as it was not so recorded, there was no evidence upon any land-record of the country that such claim existed; and the land now claimed appeared to every person who could have access to these records, to be vacant public land, subject to any disposition which could lawfully be made of any part of the public domain.

( Spaulding then proceeded to comment upon the acts of 1824 and 1828, and particularly upon those clauses which saved the rights of adverse parties; after which he took up the title of Lafleur under the New Madrid grant, and argued thus:)

The plaintiff in error, having given in evidence a notice or application made by Theodore Hunt, for the location of the certificate of Lafleur upon the land in question, dated in July, 1817, and a survey made by a deputy surveyor in April, 1818, with the proclamation of the President for the sale of the land in the township, to take place in October, 1823, objects to the title of the defendant in error, on the following grounds: — 1st, That, at the time of the location, the land was not public land; 2d, That, if it was public land, the sale of it was not authorized by law, and therefore it was not subject to location.

The first objection of the plaintiff in error, that, at the time of the location, the land located was not public land, subject to be located, is based upon the assumption that it was Mackay's land, and involves the consideration of the argument made against the title of Mackay. If, by the operation of the different acts of Congress, Mackay's negligence had barred his claim, and shut out his evidence of title from the consideration of courts of justice, the land was in every sense public land, subject to such disposition as the government might think proper to make of it. To say it was still his land, as against the government and the grantees of the government, is to assert that his title remained valid, notwithstanding enactments which annulled it, on account of his neglect to comply with the requirements of law. It is unnecessary further to pursue the answer to this objection of the plaintiff in error.

The second objection, upon which most stress is laid, is, that at the time of the location, this land was not of the description liable to location — that is, land the sale of which was authorized by law.

It may be of importance to determine, if we can, from the evidence in this case, when the location was made.

The plaintiff in error has fallen into the mistake of supposing that the notice or application for the location, made in July, 1817, is the location itself. This error might have been avoided by an examination of the decision made by this court in Bagnell and others v. Broderick, 13 Peters, 436. In that case, the court held, that this notice or application forms no part of the title, and is not part of the evidence on which the general land-office acted, but the patent issued on the plat and certificate of the surveyor, returned to the recorder's office, and which was by him reported to the general land-office. Again, the court says: — "The only evidence of the location recognised by the government as an appropriation, was the plat and certificate of the surveyor."

As the notice or application is not the location, we next look to the survey spread on the record: this is dated in April, 1818, as the time when the deputy surveyor of the United States made the survey on the ground, but when this survey was returned to the office of the surveyor-general, or when it was approved in that office, does not appear, and especially it does not anywhere appear on the record when the surveyor-general returned to the recorder of land-titles the plat with the notice, designating the tract located, as required by the 2d section of the act, nor when the recorder issued the patent certificate under the 3d section.

In this state of the evidence, it cannot be known whether the survey made by the deputy surveyor, although dated in April, 1818, was returned, or, if returned, was approved in the office of the surveyor-general, at any time anterior to the proclamation by the President for the sale of the land in the township.

It appears, by inspection of the survey given in evidence, that it was made after the public surveys had established the townships, c., as it describes the land as situated in two townships. The question, therefore, which the plaintiff in error has attempted to raise, is not presented by the record. But it is not my purpose to avoid the discussion of the question, if we can really get it into a tangible form.

The question, if I have understood the argument made in behalf of the plaintiff in error, is, whether the patent issued to Lafleur is not void, because the survey was made for him at a time when the sale of the land was not authorized by law?

If we turn again to the language of the act, we find that the words upon which most stress is laid — "the sale of which is authorized by law" — are used as descriptive of the land to be located, and have no reference to time. If there were, then, classes of lands which, by law, were reserved from sale so that no officer of the government could, without a violation of law, attempt to sell them, and there were other public lands in relation to which the executive of the United States was already intrusted, by law, with the power to direct the survey and sale, so that no farther authority was needed, we have the key to the right understanding of the words employed in the act of 1815.

The act of 3d March, 1811, 2 Story, 1197, is that which directs the sale of the public lands, and makes the reservations from sale. It is upon this act, and upon those which establish land-offices in different parts of Missouri, and refer to this for the direction of the different offices, that the sales of land in Missouri have taken place.

The 8th section of this act empowers the President to direct the surveyor-general to cause the public lands in the territory of Louisiana to be surveyed.

The 10th section empowers the President to direct the land, when surveyed, to be offered for sale, and prescribes the duties of the different officers, when the President has designated the days of sale. This section reserves from sale — 1st, section number 16 in each township; 2d, a tract for the support of a seminary of learning; 3d, salt springs and lead mines, and lands contiguous thereto; 4th, by the proviso to the section, "no tract shall be offered for sale, the claim to which has been in due time, and according to law, presented to the recorder of land-titles in the district of Louisiana, and filed in his office, for the purpose of being investigated by the commissioners appointed for ascertaining the rights of persons claiming lands in the territory of Louisiana." This section authorizes the sale of the mass of public land, and forbids the sale of particular descriptions of land: we have, then, the division of the land into the two classes — those the sale of which is authorized, and those the sale of which is not authorized; and the act of 1815 authorizes locations to be made on lands of one class, and not on lands of the other.

This construction is further sustained by the designation of land, subject to the location, in the present tense: "the sale of which is authorized by law." In 1815, when this law was passed, a very large portion of the land in the territory of Missouri had not been surveyed, so that if the intention of Congress was to make a survey of the public lands a pre-requisite to legal locations, by the use of these words, then, as it was evidently designed to give a range for these locations as extensive as the territory, the language employed, instead of being "the sale of which is authorized by law," would have been, the sale of which is or hereafter shall be authorized by law.

As the act speaks of the authority then existing by law for the sale of the public land, it evidently excludes the idea that the sale was only authorized when the President had issued his proclamation for the sale: for at that time the President had never issued any proclamation for any sale in the territory of Missouri.

The other interpretation of these words will, as I believe, be considered as expressing the meaning of Congress; that is, that they refer to the two classes of land, one of which was then authorized by law to be sold, and the other was expressly, by law reserved from sale.

I am aware that great reliance has been placed on the official opinions of Mr. Wirt, when he was attorney-general, given in relation to these locations, and also upon the opinion of Mr. Butler, given upon this very claim of Mackay, after its confirmation, and upon the opposing claim. These were, certainly, gentlemen eminent in the profession, whose opinions are entitled to high consideration, but still they are not conclusive authority.

I have but a single remark to make upon Mr. Butler's opinion, and that is, that he is totally mistaken as to a cardinal fact in the case. He assumes that Mackay's claim was filed and recorded according to law, so that the land was expressly reserved from sale by the 10th section of the act of 1811, and that therefore it was not subject to location. Now, if Mr. Butler had read the petition on which the confirmation was procured, he would have seen it there stated, that the claim had never been filed nor recorded according to law, and that, therefore, the land was not only by law public land, but that it was not, and never had been, reserved from sale.

On the opinion of Mr. Writ, I have to remark, that he appears to have fallen into the mistake of supposing, that the notice or application of the party for a location was the location itself, and to have directed his arguments chiefly against that instrument. It is true, that Mr. Writ argues against surveys made under New Madrid certificates which did not conform to the lines of the public surveys; but it is to be observed, that this conformity to the public surveys is nowhere required in the law which regulates these locations; and although it may be very convenient, and be very consistent with the general purposes of the government, in maintaining regular subdivisions of the public lands, it is nowhere required as necessary to the validity of a location.

The effect produced by the opinions of Mr. Writ was the passage of the act of 26th April, 1822, 3 Story, 1841, which directed that locations made under these certificates, if made in pursuance of the provisions of the act of 1815 in other respects, should be perfected into grants, in like manner as if they had conformed to the sectional or quarter-sectional lines of the public surveys, and the sales of the fractions made by such locations should be as valid against the United States as if the fractions had been made by rivers or other natural obstructions.

The great argument of Mr. Writ against the locations which were made before the public surveys was, that they would not conform to the legal subdivision of the public lands, when they should be surveyed, and thus confusion would be introduced into the system. Now, this act of 1822 takes the location as made, and the confusion as existing; and directs the issuing of patents, notwithstanding this want of conformity to the lines of sections.

Yet it is argued, that because this act ratifies the locations which do not conform to the public surveys, only when they are, in other respects, in pursuance of the act of 1815, the objection still is to be made, that they were made on land which was not surveyed, and the sale of which was consequently not authorized by law.

This is only coming back again to the discussion of what lands were authorized to be sold; which, I think I have shown, was all not reserved from sale. It is beyond dispute that the land in controversy was not reserved from sale.

But what is the real extent of the objection we are considering? It is this: applications were made to locate portions of the public lands before the public surveys; locations have been so made, and they do not conform to the sectional lines, when they have been afterwards run. The act of Congress declares that this shall be no objection to the locations, yet it is agreed now, that although the act has waived all objection to the result produced, it still retains the objection to the cause which produced it; so that, substantially, the act has accomplished nothing, and the United States, although they have sold the surrounding fractions, and have waived all objection to the want of conformity in the location to sectional lines, and have patented the land as located, may still, in all cases where the applications were made before the public surveys, come in and claim the land; or, that an intruder or trespasser on the land which the government has thus patented, may show that the application for the location of the land was thus made before the public surveys, and set up the pretence that the patent is void.

This case would present some most remarkable features, if such an objection could prevail.

Here is an application for the location of a tract of land, bounded on three sides by known Spanish surveys, and to run to a point in the line of another Spanish survey. The only new line to be run is that on one side, which is necessary to fix the quantity. A survey is made under that application calling for the townships and ranges, which shows that the survey was not made before the United States surveys. A patent is issued by the government, and in a suit brought by a purchaser under that patent it is objected, not that the land was reserved from sale — not that location could have been differently made if the government surveys had been a thousand times run — not that it does not conform to boundaries which would have fixed its limits whenever it might have been made, (seeing that it is bounded on three sides by established Spanish surveys,) but that the application was made prior to the public surveys, therefore the application was void, and the survey was void, and the location was void, and the patent was void, and but for Mackay's confirmation, the land would be mere vacant, unappropriated land; and though an owner of part of the land, under the Lafleur patent, has been more than twenty years in possession under the title of Lafleur, he has all the time been a mere trespasser!

The cases in which the validity of patents have been examined in suits at law, are too familiar to the court to need any extended remark from the counsel. From the case of Polk's Lessee v. Wendell, to the present time, the principles upon which patents have been adjudged void, have been where the state has not had title to the land granted; where the officer had no authority to issue it; where the land has been appropriated by a species of title which could not by law appropriate it; where the patent has issued against some express prohibition of law, or for land reserved from the disposition of it attempted by the patent. The patent to Lafleur is within neither of these classes. The whole of the objections now made to it would be answered to the satisfaction of the plaintiff in error, if the deputy surveyor in 1823 had run around the same lines which were run in 1818, and then had sat down and made precisely the same plat, and the same field-notes. And how is it known that he did not? The purchaser under Lafleur gave no evidence about a survey. The survey of 1818 was given in evidence to impeach the patent; the patent itself implies that all was done which was necessary to its being regularly issued.

I really feel that I would be trifling with the court to make a more extended argument in the case.

The propositions I maintain are the following: —

1. That upon this record the Mackay title commences, as against the defendant in error, with the confirmation, as no document is shown anterior to that confirmation; and the confirmation does not, as against the defendant in error, establish the existence of any prior claim.

2. That if the existence of a genuine Spanish order of survey should be assumed, as against the defendant in error, all claim under it was barred by the acts of Congress.

3. That if the existence of such order of survey should be assumed, whether the claim under it were barred or not, the confirmation of the claim is, by the act under which it was obtained, expressly postponed to the Lafleur title.

4. That the patent of Lafleur is the better legal title, unless there is some defect that renders the patent void.

5. That the Lafleur title is above exception, regular, and effectual.