Henry Baldwin

“ It is evident, that the law which gave a title in fee to a village lot, by a continued residence of four years in a house, neither did or could apply to a common field lot, used only for cultivation or pasturage, the owner of which could derive no advantage from his mere right of property, if the adjoining owners did not keep the common fence in repair, or pay the syndic for doing it. ”

“ Every country has a common law of usage and custom, both local and general, to which the people, especially those of a conquered or ceded one, cling with more tenacity than to their written laws, and all sovereigns respect them. ”

“ This Court has defined property to be any right, legal or equitable, inceptive, inchoate, or perfect, which before the treaty with France in 1803, or with Spain in 1819, had so attached to any piece or tract of land, great or small, as to affect the conscience of the former sovereign, 'with a trust,' and make him a trustee for an individual, according to the law of nations, of the sovereign himself, the local usage or custom of the colony or district; according to the principles of justice, and rules of equity. 6 Peters, 709, 714 ”

“ Neither party could consider itself as attempting a wrong to individuals condemned by the whole civilized world. 'The cession of a territory' would necessarily be understood to pass the sovereignty only, and not to interfere with private property.' Ib. 87. No construction of a treaty, which would impair that security to private property, which the laws and usages of nations would without express stipulation have conferred, would seem to be admissible further than its positive words require. ”

“ As to the twenty arpents held by Gamache, there is no written evidence that his right thereto was ever conveyed in whole or part, before 1827, to the plaintiff, or any person under whom he claims; nor is there to be found in the record, any other evidence of any right thereto in Chancellier, unless it may have been by possession or mere claim. We find in the inventory and appraisement of his estate, in 1785, that the sixty arpents were then in wheat, valued at six hundred livres, equal to one hundred and twenty dollars, or two dollars per arpent, with the crop in the ground ”

“ In following the course of the law of nations, this Court has declared that even in cases of conquest, the conqueror does no more than displace the sovereign, and assume dominion over the country. 7 Peters, 86; (10 Peters, 720, 729-30, passim) . 'A cession of territory is never understood to be a cession of the property of the inhabitants. The king cedes only that which belongs to him; lands he had previously granted, were not his to cede. Neither party could so understand the treaty. ”

“ Landmarks shall be erected between each lot, trees planted along the dividing line, a record of distribution among the settlers shall be made, containing the number of tracts, the names of the settlers to whom allotted, giving each a sheet or plot of his tract, which shall be his title in future, to remain in his possession, to be consulted without the necessity of resorting to the record itself. ”

“ These facts, too, on which the law of usage and custom, the transmission of property by parol, the performance of acts in pais, on which the right depended, were to be developed from the few survivors of the settlers of an ancient village, of whom, as appears from the record, but few could read or write: whose occupations were in the trade with Orleans, Machinau, and the Indian tribes, who attended little to village concerns, and still less to village property, when, on a public sale, its price was eight cents an arpent ”

“ If none existed in the person as whose estate it was so sold, it was a transfer of an existing title; and not in its nature or effect an original grant.
2. That independent of the title of Kiersereau and Gamache, there was sufficient evidence before the jury to establish a title by prescription in Chancellier and his heirs; which instruction could not be given without usurping the province of the jury to decide on the sufficiency of the evidence. 9 Peters, 445. ”

“ If congress could, it never did give him any authority to supervise either the acts of the commissioners, or the confirmations of the law.
2. 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 unanswerable reasoning of this Court, in Green v. Liter, the principles of law on which it is founded, with the admitted authority with which it has been received, save the necessity of any reference to any other source for its support. ”

“ Whether he was the same person who was the witness to the deed from his wife, and (as we shall assume,) the grantor of the lot, was a pure question of fact for the jury, on the whole evidence on that subject; so it was as to the identity of Gamache, as to whom there is the following admission on the record. 'It was also admitted, that book. Batis X Gamache in his survey of one of the tracts of land, of one by forty arpents, was made, was known as well by the name of Jean Baptiste Gamache, and of Baptiste Gamache, as Joseph Gamache;' which also appears by his deed to Chancellier. ”

“ In places in which resided an audiencia, or high court of justice, the president was sometimes the administrator in chief of the law and police.
The seats of administration, or capitals of these divisions, were generally the largest towns in them, from which the section in almost every instance took its name. In every capital of a jurisdiction, was a council called the ayuntamiento or cabildo; the ayuntamiento is, strictly speaking, the council, and the cabildo, the place of its meeting ”

“ Thus the ayuntamiento or cabildo consisted of the governor, corregidor or alcalde mayor of the place, the alfarez, the alcaldes ordinarious, and the regimiento, or body of regidores.
The word syndick does not appear in the recapilacion or official compilation of the laws of the Indies. The Spanish dictionary of the academy, and the French authors on jurisprudence, agree in defining it to mean the person charged with the care, defence, and advancement of the interests of a community. In France, at present, the trustee who holds the property of a bankrupt, is styled le syndic. ”

“ A caballeria is to consist of a lot one hundred feet wide by two
hundred long, and in all other respects equal to five peonias; that is to say, five hundred fanegas of ground for cultivation of wheat or barley, fifty of Indian corn; ten huebras of land for garden; forty for other trees growing in more barren land; pasture ground for fifty breeding sows, a hundred cows, twenty horses, five hundred sheep, and a hundred goats. ”

“ There shall be distributed among the settlers of the villages, lots and lands, varying in size and extent, according to their rank and merit, and after living and labouring therein four years, they may sell them as their own property. White, No. 74. No persons shall have lands in one settlement, if they possess lands in another, unless they have left their former, and removed to their new residence, or resided in the first for the four years necessary to entitle them to the fee simple right, or have relinquished it for not having fulfilled their obligations. ”

“ Waiving, for the present, the consideration of a question raised at the trial, whether Rene Gueircero, or Rene Kirgeaux, was the real and true Rene Kiersereau, the rightful owner of part of the property in controversy between the parties, or another person, we are clearly of opinion, that Madame Chancellier, in 1787, had a good title to the forty arpents formerly owned by Kiersereau, and the twenty arpents conveyed in exchange by Gamache to Chancellier, in such right, and by such tenure as was given and prescribed by the laws of Spain, and the province, which will be hereafter considered ”

“ Cyr was lawfully in possession. How the civil law was, in 1973, in cases of conveyances, where the lands were claimed and holden in actual possession, adversely to the grantor and grantee at the time the deed was made; is immaterial, and is not decided.
The seventh, eighth and ninth instructions asked, propose to refer to the court for decision, questions of fact, pertaining to the jury.
The tenth assumes that Choteau's possession was void, if he said notice of the sale to Madame Chancellier. This by no means follows. He might have possessed in good faith, notwithstanding ”

“ The U.S. 10 Peters, 718-19, &c. are most full and conclusive.
The plaintiffs have relied much on the allegation, that St. Cyr took possession as the tenant of Madame Chancellier, or her husband, Beauchamp, in 1788, or under an agreement that he should keep up the fence while he occupied the lots. The only evidence of this fact was by her in her testimony, in which she stated it in general terms: on her cross-examination, she stated that Beauchamp had told her so; whereupon, the court directed the jury to reject her evidence. Whether the jury did so or not, is not material ”

“ For these reasons, we feel constrained to come to the same conclusion on this record, which the Court did on the former; the plaintiff can neither have any benefit from any act of congress, or give evidence of his claim against the defendant, claiming by grant from the United States. ”

“ It is our will, that houses, building-lots, lands, caballerias and peonias and peonias may be and shall be assigned to all whom may go as settlers of new lands in the villages and towns to which they may be directed by the governor of the new settlement, making a distinction between gentlemen of family, and labourers, and those of lesser degree and worth ”

“ Those things which the king gives to any one, cannot be taken from him by the king, or any one else, without some fault of his; he shall dispose of them at his will, as of any other things belonging to him. ”

“ Cyr had notice of the title of said Marie Louise, as purchaser at said sale of the lots therein described, as sold to her.
6th. That the deeds given in evidence by defendant to Rene Kiersereau, bearing date the 23d of October, 1793, conveyed nothing to St. Cyr; being made by a person out of possession, and whose conveyance for the same land to another person, to Chancellier, was upon record, and who therefore was guilty of the crime of 'Estellionato,' punishable by fine and banishment, by the Spanish law then in force. ”

“ Those who have been in possession of lands, by acts not confirmedbefore 1700, may retain free possession thereof without molestation. If persons have not warrants, their proof of long possession shall be held as a title by prescription. ”

“ That such regulations were authorized by the written law of Spain, in royal orders, and by the unwritten law of use, custom and fuero, has been seen; and that such usages and customs were valid; that local usage and custom, in relation to municipal regulations, was not the law of the villages only, but of the metropolis of the province, and equally binding as the local law; is clearly established by the able and unanimous opinion of this Court, in New Orleans v. The United States, 10 Peters, 712, 716, 724, 730, 731. ”

“ The lots to be distributed by lot among the settlers, beginning with those adjoining the main square, the remainder to be reserved to the king, to give as rewards to new settlers or otherwise, at his will, and a plot of the settlement to be made out. ”

“ Cyr and the defendant, entitled the latter to all the benefit of the Spanish law of prescription, whether of thirty, twenty, or ten years, according to the rules laid down, as taken from the Recapilacion and Partidas, in White, 68-9. The destruction of the common fence of the common field lots, in 1798-9, was a sufficient excuse for St. Cyr or Choteau, not continuing the actual possession and cultivation of their lots, until the other owners would join in rebuilding the fence. ”

“ If they have not cultivated the lands, three months shall be given, or whatever time may be thought sufficient; and notice shall be given, that if they fail to cultivate the lands, they shall be given to those who shall lodge information thereof, under the same condition of cultivating them. ”

“ The founder shall contract to grant to each person who joins the settlement, building lots and pastures, and lands for cultivation, proportionate to what he will agree to improve. White, No. 62. A town containing ten married men, with an extent of territory proportioned to what is stipulated, may elect from among themselves, ordinary alcaldes, and officers of the council. ”

“ He who would controvert a grant executed by the lawful authority, with all the solemnities required by law, takes on himself the burthen of showing, that the officer has transcended the powers conferred upon him, or that the transaction is tainted with fraud.' 8 Peters, 452-3-5, 464; 9 Peters, 134, 734-5; S. P. 6 Peters, 727, &c.; and cases cited: 10 Peters, 331; S. P. 1 Paine, 469-70. The same rule applies to the judicial proceedings of local officers, to pass the title of land according to the course and practice of the Spanish law in that province (West Florida) . 8 Peters, 310. ”

“ Treaties are the law of the land, and a rule of decision in all courts. 2 Peters, 314; 9 Peters, 133. Their stipulations are binding on the United States; in that of 1819, there is a present confirmation of all grants made before January, 1818, with the exception of only three, which had been previously made, and were expressly omitted, on which this Court make these remarks. 'While Florida remained a province of Spain, the right of his catholic majesty, acting in person or by his officers, to distribute lands according to his pleasure was unquestioned. ”