The United States v. Boisdoré et al.

was repealed. It is said that the act of 1844 revived the act of 1824 as amended by that of 1828. That, however, must depend upon the intention of Congress, to be gathered from the language of the act itself. It refers to the act of 1824 by its name, reciting both its date and title. It does not revive the whole of its provisions, but expressly excludes all such portions of said act as referred to the Territory of Arkansas. Here is a special reference to this act only, in a form of expres sion as clear and perspicuous as can be employed. Again, it says, "and the provisions of that part of the aforesaid act hereby revived." What is still more conclusive and decisive is the following provision, viz.: "as if these States had been enumerated in the original act hereby revived." The act of 1824 is not only declared to be revived, but reenacted, excluding all such portions of said act as referred to the Territory of Arkansas.

It is not reasonable to suppose that Congress intended to revive and reënact the whole of the act of the 24th of May, 1828, because no part of the first section could be of any avail. No exceptions are made in regard to this act, and no reference is made to it; while in regard to the act of 1824 the parts rejected are carefully excluded, and the residue only is revived and reënacted. The established rules of construction show, that, where a part is named and excluded, the residue is reënacted. Expressio unius est exclusio alterius. Co. Lit. 210 a, 183 b; Broom's Legal Maxims, 183, 187.

Every part of the act of 1824, except what relates to the Territory of Arkansas, is revived and reenacted by express words; the court will readily perceive that this case is distinguishable from one reported in 7 Cranch, 382. In that case the language of the reviving act was general in the reference to the acts which had expired. Here it is special and specific, and by several modes of expression negatives any such general inference. There is a plain repugnance between the first and eighth sections of the act of 1824 and the second section of the act of 1828. If, therefore, the law of 1824 is revived and reënacted, it is clear that the law of 1828 remains a dead letter.

Questions bearing a strict analogy have often arisen upon repealing statutes, whether it was the intention of the framers to repeal the whole, or only a part, of the acts to which such repealing statutes were applied. No better mode occurs of illustrating the subject, than by referring to the standard rules of construction which have been adopted by the courts in such cases. The word repeal is not to be taken in an absolute sense, if from the whole it appear to be used with a limitation. In every case it is a question of construction whether

The United States v. Boisdoré et al.

it operate as a total, or partial, or temporary repeal. Rex v. Rogers, 10 East, 573.

Where several acts of Parliament upon the same subject. had been totally repealed, and others repealed in part, it was held that it must have been the clear intention of the legislature that only the part of an act particularly pointed out should be repealed.. Camden v. Anderson, 6 Term R. 723; Dwarris on Statutes, 675.

The general principle undoubtedly is, that the repeal of a repealing statute revives the first act, unless the new law contain words indicative of a contrary intention of the legislature; in which case no such consequence follows.

So, it is said, if an act of Parliament be revived, all acts explanatory of that so revived are revived also; which may be true, unless in the latter case, as in the former, the language of the act authorizes a different interpretation. The Bishop's Case, 12 Coke's Rep. 7; Tattle v. Grimwood, 3 Bing. 496; Dwarris on Statues, 676; Brown v. Barry, 3 Dallas, 367.

And where some parts of a revived statute are omitted in the reviving statute, they are not to be revived by construction, but are to be considered as annulled. Ellis v. Paige, 1 Pick. 43-45; Rutland v. Mendon, 1 Pick. 154; Blackburn v. Walpole, 9 Pick. 97.

The law does not favor implications in construing a repealing or a reviving statute. Loker v. Brookline, 13 Pick. 342, 348; Haynes v. Jenks, 2 Pick. 172, 176; Dwarris on Statutes, 675.

If, then, the act of 1824 alone is revived, it follows, by express enactment, that petitioners are required to set forth the names of adverse claimants. This point is too plain to require argument.

The claimants may contend, that, as they do not claim the lands held by adverse parties, but an equal quantity to be hereafter located on the public domain, no parties except the United States are therefore interested. It will be observed, however, by the eleventh section of the act of 1824, that it is only after it has been decreed that the title to the lands claimed is valid, that the right of entering other lands accrues.

It may also be said, that to make the adverse claimants parties would oust the jurisdiction of the court, because the parties defendants would be citizens of the same State as the petitioners; and that the provisions of the act of 1824, which requires persons to be made defendants, whether they are citizens of a different State or not, are unconstitutional. It is true that an act of Congress cannot confer a jurisdiction not warranted by the Constitution. But the error of the argument on the other side consists in supposing that the act of 1824 was the exercise

The United States v. Boisdoré et al.

of the power vested in Congress, arising out of the character of the parties to the suit, and not out of the character of the cause. The distinction between these two classes of cases, which is obvious upon a mere cursory reading of the second section of the third article of the Constitution, is thus stated by Chief Justice Marshall, in delivering the opinion of the court in the case of Cohens v. Virginia, 6 Wheat. 378:"Jurisdiction is given in two classes of cases. In the first, their jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends 'all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.' This clause extends the jurisdiction of the court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied against the express words of the article. In the second class the jurisdiction depends entirely on the character of the parties. In this are comprehended 'controversies between two or more States,' &c. If these be the parties, it is entirely unimportant what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union."

The twenty-fifth section of the Judiciary Act is a notable example of the exercise of the power vested in Congress arising out of the character of the cause. The act of 1824 is an exercise of the same authority.

The points made by the counsel for Boisdoré's heirs were the following:

First Point. The grant emanating from Governor Miro of Louisiana, in 1783, was issued by proper authority, and conferred a valid grant of the lands claimed, though the patent or title in form never issued. From its inception to the time Spain was forcibly expelled this district of country in 1811, and from that time to this, no doubt or suspicion has been entertained of the integrity of the grant, and of its possession in good faith. Its extent only has prejudiced the claim. We insist it was assured as private property under the equity of the treaty of St. Ildefonso, of October, 1800, and expressly by the treaty of Louisiana in 1803. And no indulgent construction of the act of 1824 in its favor is requisite to insure its confirmation by this court. 6 Pet. 723, 728, 729; 8 Pet. 452; 9 Pet. 132, 134, 735, 760; 10 Pet. 341; 12 Pet. 428, 436, 438, 446, 460; 1 How. 24.

Second Point. (This related entirely to the genuineness of the documents offered in evidence.)

The United States v. Boisdoré et al.

Third Point. The partial and incomplete proceedings under the administration of Morales, in 1808 to 1810, instituted to obtain the title in form, we maintain, were lawful and valid to the extent of the adjudications made. That the reference of the subject by Morales to his minister of the treasury, the minister's report favorable to the claim, and then and thereupon Morales's order committing the subject of the application to the Surveyor-General for his action, "that a corresponding title might (may) be furnished," are all proceedings of a judicial character, and furnish evidence of confirmation to this extent. 9 Pet. 743; 8 Pet. 308.

Pintado's despatch, made in reference to these adjudications, but not in pursuance of them, is no doubt invalid, because manifestly unauthorized by the preceding orders. Hence the survey and patent failed.

But this adjudication, to the extent it progressed, was within the lawful jurisdiction of the tribunal, and, pertaining to a date long anterior to the treaty of St. Ildefonso, encounters no opposition from the act of 26th May, 1804, § 14.

Fourth Point. Under the preceding aspect of this case, as well as under the enlarged and liberal equity of the act of 1824, it is of no importance whether any thing was done or suffered, under the government of Spain, for which Spanish authority might have asserted a forfeiture. The commissioners of 1828-29 report the claim as forfeited under the Spanish law, for want of habitation and cultivation. But the report has not a particle of evidence to support this position. It reports habitation only from 1788. (The grant was 1783.) But there is no evidence to show that was the beginning of the settlement. The "quête shows it was settled before its date, 1783. The Minister of the Treasury reports possession from date of the grant to 1808. And we understand the deposition of Rochon to prove possession from 1784. The report of 1828, then, is obviously untrue in fact, while the whole adjudication by the tribunals in 1808 repels every such conclusion. But we assume, as it is indisputable that Boisdoré occupied and claimed this land before the year 1800, and until the United States acquired the possession, that no cause of forfeiture incurred under the gov ernment of Spain, before the year 1800, could be made the subject of inquest and escheat under the government of the United States.

Fifth Point. The act of the 28th of May, 1830, which confirms the report of the commissioners of 1828, and which report recommends this claim for confirmation (for a reasonable quantity) enacts, by way of proviso, that this claim shall not be confirmed to more than twelve hundred and eighty acres.

The United States v. Boisdoré et al.

The record shows that Elihu Carver, United States deputy surveyor, received from the land-office an order of survey, under this act, and, in pursuance of his official duties, and at the cost and expense, and under direction only of the officers of the United States, surveyed the twelve hundred and eighty acres. This law of Congress, and the survey, are interposed in the record as a bar to our claim.

The petitioners disclaim this act; and there is no pretence they ever approved it. No patent has ever issued, the survey is not shown to have been approved, and the record shows sales made of this claim by Boisdoré's heirs to more than five times the quantity so confirmed. The act does not declare a confiscation of the remainder of the claim, and requires no release of one hundred thousand acres of land, for this boon of one thousand two hundred and eighty, being a part thereof. To sustain this bar is to render this proviso in the act of 1830 more potent than the subsequent act of 1844, which gives the right of action under the law of 1824, but which is rendered inoperative as to this case, could this plea in bar prevail.

It is unnecessary to argue what Congress might de in its capriciousness of power. We cannot suppose the court will favor such construction of this act, as imputes the intention to Congress to confiscate this claim, by mere implication of this proviso. Our record proves this claim was regarded good and valid as private property by the Spanish government in 1808. It is unreasonable to suppose the Congress intended to annul or destroy it. 2 Wheat. 203; 7 How. 880; 7 Pet. 86, 87.

Query, If Congress could so confiscate property? 12 Pet. 447. Or could attach a condition and render it obligatory upon such a grant of absolute property, with promise of a title in form? 10 Pet. 306.

Sixth Point. We maintain that the construction of the terms of the grant under the law must define, prescribe, and control the order and direction of the survey; and that the directions, calls, and boundaries prescribed by the decree in this case result from the true and reasonable construction of this grant. 3 Pet. 96, 97; 16 Pet. 199-202.

It is a well-established rule of law, that parol evidence cannot change or vary the written calls in a deed or grant, nor supply calls and boundaries where none are given in the deed.

We have always regarded the boundaries of this claim as the only difficult question in the case. Not that we think it inherently so, but that it has been rendered somewhat questionable from the instructions of the Spanish Surveyor-General Pintado, of the 23d of May, 1810, and by his assumptions in his despatch of the 30th of May, 1810, and his figurative plan therewith.