The United States v. Boisdoré et al. sacola in 1808 and 1810, relative to the confirmation and survey of the lands in the concession to Boisdoré, were null and void, the Spanish government having then no authority over that part of the country, the same being embraced within the limits of the cession of Louisiana by Spain to France, and by the latter to the United States. § 14 of Act of 26th March, 1804, erecting Louisiana into two territories (1 Land Laws, 114); Foster and Elam v. Neilson, 2 Pet. 254; Lee v. Garcia, 12 Pet. 511; United States v. Reynes, 9 How. 127. II. That the concession by Governor Miro to Louis Boisdoré is void, because no land was severed from the public domain by a survey giving it a certain location previous to the treaty of cession, and the description in it is so vague, indefinite, and uncertain, that no location can be given to the land. United States v. Miranda, 16 Pet. 156, 160; 15 Pet. 184, 215, 275, 319; 10 Pet. 331; 3 How. 787; 5 How. 26. Upon looking at the maps in the record, it will be seen that the plantation of Philip Saucier, now belonging to Joseph and Martial Nicaise, is on the Bay of St. Louis, and the first call in the concession is to commence from that plantation. But from what side or part of it, or from what particular or specific point, is not stated. Pintado's figurative map commences it in the rear of Saucier's plantation, at the northwest corner; while the claimants and the court below commence it on the sea-shore of the Bay of St. Louis, at exactly the contrary point, the southeast corner. The decree says, "having its beginning corner at that point on the sea-shore, at the entrance of the Bay of St. Louis, where the southeast corner of Joseph and Martial Nicaise's claim, formerly the claim of Philip Saucier, has been established by the survey made thereof by authority of the United States." There is then no specific starting-point under the first call of the concession; and the second call is equally vague and indefinite. Boisdoré and his heirs, from 1783 to 1800, during which the country remained under the dominion of Spain, seventeen years, had no survey made by which the location of the lands intended to be conceded could be identified; and shall it be left to them now to choose a point for the beginning of a survey, or can the court arbitrarily fix upon such a point? There is certainly no call in the concession to commence on the Bay of St. Louis, as has been decreed by the court below, and there is therefore no water boundary in the case. Pintado knew better than to commence on the Bay of St. Louis; for, while he speaks in his letter to Lorrens of the confusion and embarrassment of the description, he keeps so far as he can guess to 7 VOL. XI. The United States v. Boisdoré et al. the calls of the concession, as to commence from one of the rear corners of Saucier's plantation. The next call is the Bayou of Maringouins, or Mosquito Village, nearly due west from the Bay of St. Louis, in the direction of Pearl River, but short of it. There is no specific point fixed on the bayou, which, according to the evidence in the case, is from seven to nine miles in length, and navigable for vessels used in the lake trade. Is the mouth or the head intended, or what intermediate point? Monet, one of the witnesses for the claimants, says the head. In answer to the fourth interrogatory for the claimants, he says: "The head of which (bayou) makes one of the corners designated in the title papers of said claim." Others think it should be the mouth, as decreed by the court. The decree of the District Court, commencing on the Bay of St. Louis, below Saucier's plantation, gives to the claimants, from this point, all around the coast of the sea-shore to the mouth of East Pearl River, thence up that river to the easternmost mouth of the bayou, which it fixes as the second call of the concession. Now, with respect to the line thus decreed to be run round the sea-coast, the concession is not only vague and uncertain, but there does not appear to be any call whatever in it which sanctions such a construction, or gives it the slightest countenance. The decree then directs that, between the corner thus fixed on the bayou, and the corner on the Bay of St. Louis, a theoretic base line shall be drawn, and from each of its extremities, and perpendicular to it, there shall be drawn, parallel to each other, two side lines, to run until they strike Pearl River, between which lines the meanders of the river shall constitute the conjunction line of the survey. This theoretic base line is about fifteen miles in length. It will be observed, from the maps of the country, that the line from the mouth of the bayou will run nearly parallel to Pearl River, and strike it about ten miles from its mouth; and that the other line, commencing on the Bay of St. Louis, will strike it at least fifty miles above, and both may, on an actual survey, go beyond even these distances. The last-mentioned line, it will be remembered, is by the concession declared to commence from the plantation of Philip Saucier; but so far from the line fixed by the court below commencing on the southeast corner of that plantation being in consistency with the calls of the concession, it actually cuts off the greater part of Saucier's plantation. In fact, these lines run up, instead of back to the river. Pintado, in his letter before mentioned, had a juster notion of what "approached" to the calls of the concession. He says, "This description causes sufficient embar The United States v. Boisdore et al. rassment in determining the form or figure which the land ought to have; however, as he calls the front the distance from Saucier's plantation to the Bayou of Mosquito Village, the depth, as far as Pearl River, can be understood only by two lines drawn from the said last two points, sc as to strike the said Pearl River; that is to say, the easternmost of the three which take this name; and these lines ought naturally to run to the west, one from Saucier's plantation, and the other from Mosquito Village. The little sketch annexed will give you a clearer idea. Though there is no geometrical precision, it approaches to the figure of the place." Boisdoré himself never dreamed of such a magnificent principality for his cow-pen as is claimed by the petitioners, and given by the decree of the court below. See the testimony of Rochon and Benite, filed by the claimants before the second board of commissioners. The locality, then, of the land not being ascertained, either by the concession or a survey, was not acknowledged by the authorities of Spain, and no effort was made to identify it before the treaty of cession. Nothing was done to withdraw the land intended to be granted from the mass of the public domain, or to show what it was that was to be withdrawn. It therefore remained in Spain at the time of the cession to France, and passed to the United States by the cession of France to them. III. That the concession was only an incipient step towards a title depending upon the establishing of a cow-pen by Boisdoré within a reasonable time, and after being put in possession of the land, and of a survey being made and returned to the Governor, so that it might be known what land was severed from the public domain; and that none of these being done, there was no just or valid claim on the Spanish government to make a perfect title, and of course none on the United States. 66 The act of 1824, in describing the claims which might be prosecuted under it, says, inter alia, they are 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." The considerations which induced Governor Miro to make this gratuitous concession are set forth in it. "Considering the sufficient reasons explained to me above, and having regard to the advantage and utility which will result to the capital from the establishment of a cow-pen." The importance which was attached by the Spanish government to the raising of cattle, is shown in the royal regulation of 1754 (2 White's Recop. 62), and in the Recopilacion of the Laws of the Indies, The United States v. Boisdoré et al. 49 and 50, No. 74 and 76. And by the same laws it was required that the grantees should take actual possession within three months. Ibid. 51, No. 81. See also the second and third articles of O'Reilly's regulations made in 1770, which were in force in Louisiana at the date of this concession. Ibid. 229. In this case, the concession directs the Surveyor-General to establish Boisdoré on the land, and to forward his, the Surveyor-General's, proceedings to the Governor, that a title in form might be furnished to Boisdoré. This was never done, and no legal survey was ever made. The twelfth article of O'Reilly's regulations, above referred to, is as follows: "All grants shall be made in the name of the king, by the Governor-General of the Province, who will at the same time appoint a surveyor to fix the bounds thereof, both in front and depth, in presence of the judge ordinary of the district, and of two adjoining settlers, who shall be present at the survey; the above-mentioned four persons shall sign the proces verbal which shall be made thereof, and the surveyor shall make three copies of the same, one of which shall be deposited in the office of the scrivener of the government, another shall be delivered to the Governor-General, and the third to the proprietor, to be annexed to the titles of his grant." The directions of the concession are in accordance with this regulation, and they are evidently made with reference to it. It furnishes the best criterion of what had to be done by Boisdoré before his grant could be perfected. Suppose that Boisdoré or his heirs had applied to the Spanish authorities in 1800, seventeen years after the date of the concession to him, without proof that he had occupied the land for the purposes mentioned in the concession for the first five years after date (the earliest occupation in evidence is 1788), or that he had been put in possession, and without any survey or other identification of the land, there was no obligation on them to perfect the title. 10 Peters, 331. The claimants themselves show this, by their own statements, in their application to Morales in 1808. IV. That the proviso of the act of 1830, declaring that this claim "shall not be confirmed to more than twelve hundred and eighty acres," prevents the recovery sought in this case; and that the said twelve hundred and eighty acres were in full satisfaction of the claim, and were accepted and surveyed for the benefit of those claiming under the petitioners. In the clause of the act of 1824 conferring jurisdiction on the court, it is declared that the several acts of Congress on the subject of these claims are to be taken into consideration by The United States v. Boisdoré et al. the court in deciding on them. This proviso, therefore, standing unrepealed, is the declared will of Congress that this claim shall not be confirmed for more than is stated. All claims under incomplete titles in the country acquired from France by the treaty of 1803 addressed themselves to the political power, and Congress had a right to confirm part of a claim, and refuse confirmation for the residue, if they supposed it just to do so. 3 How. 788. In the case of The United States v. Reynes, the cou.i gave effect to the act of 1804, which declares that all grants in Louisiana subsequent to the treaty of St. Ildefonso are null and void. That the quantity of land given was intended as a full satisfaction is apparent from the words employed. On the 6th of November, 1830, the twelve hundred and eighty acres were surveyed, and the plat and survey approved 11th August, 1832. This rendered the title complete, for the act does not direct patents to issue. It will be seen from the testimony of Carver, Monet, and Daniel, that the twelve hundred and eighty acres cover the plantation of Francis Saucier and part of that of Daniel, who were purchasers under Boisdoré's heirs. On the question arising on this point, see 3 How. 788. V. That on the 26th of April, 1783, the date of the concession by Governor Miro to Louis Boisdoré, the authorities of Spain had no power to make grants in that part of the country where the lands lie, the cession by Great Britain to Spain not having been made until the definitive treaty of peace of the 3d of September, 1783. 1 Kent's Com. 169; Wheaton's Elements of International Law, 572; Clark v. United States, 3 Wash. 104; United States v. Hayward, 2 Gal. 501; Poole v. Fleeger, 11 Peters, 210; Polk's Lessee v. Wendell, 9 Cranch, 99; and the cases of Foster v. Neilson, Garcia v. Lee, and United States v. Reynes, cited under the first point. VI. That there was no sufficient evidence of the execution of the concession by Governor Miro; and that the proof offered in the shape of ex parte affidavits, supposed to have been before the several boards of commissioners, was not competent. VII. That the petitioners should have made parties to this suit persons claiming the lands, or any portion of them, under a different title, or holding possession otherwise than under them; and the demurrer ought to have been sustained. The act of 1824 directs such persons to be made parties. By the second section of the act of 24th May, 1828, to continue in force for a limited time, and to amend, the act of 1824 (1 Land Laws, 442), so much of the last-mentioned act as required claimants to make adverse parties to the suit, or to show the court what adverse claimants there might be on the land, |