James Moore Wayne

“ II. The action of the executive and legislative departments of the government, in refusing to recognize this claim, and in disposing of the land as public domain, was right; because the documents produced by the plaintiff do not show a perfect and complete title, nor a full property and ownership in Julien Dubuque.
1. The cession by the Indians, the petition to the Baron de Carondelet, and the Baron's concession thereupon, must all be taken together as one instrument, because they are all connected by reference in the writings themselves; and so they serve to explain each other. ”

“ It is a fact in the case, that the Indian title to the country had not been extinguished by Spain, and that Spain had not the right of occupancy. The Indians had the right to continue it as long as they pleased, or to sell out parts of it-the sale being made conformably to the laws of Spain, and being afterwards confirmed by the king or his representative, the Governor of Louisiana. Without such conformity and confirmation no one could, lawfully, take possession of lands under an Indian sale. ”

“ The decisions of this court which established the doctrine that a grant of land of specific locality, by the Spanish land-granting officer, vested in the grantee a complete title, are so numerous and so uniform that it would be considered unnecessary to cite authorities to sustain this grant, but for the fact that the United States government has, by selling the land, assumed it to be a part of the public domain. ”

“ Being only a permission to work the mines which he had opened, and not intended as a grant of the land in fee, the preliminary steps necessary to obtain such a title were not ordered nor taken.
The king, the government, the prince, cannot be disseized. Therefore a formal delivery of possession by a competent officer was required by the law of Spain.
Until a subject has acquired a legal private right to the land, his occupancy is not a disseisin of the prince; the occupant is tenant at will, his occupancy is not adverse but in subordination to the public title of the prince. ”

“ When Indians dispose of their landed property or other thing of value, the sale is void unless made by the intervention of the authorities, or of the protector-general, or person designated for the purpose. C. 29, 42. Many other citations of a like kind might be given from the king's ordinances for the protection of the Indians. They were protected very much by similar laws when Louisiana was a French province, excepting in this: that the power to confirm an Indian sale of land, as to the whole or a part of it, or to reject it altogether, was exercised by the French governors of the province. ”

“ The petitioner, Henry Chouteau, states that he is the owner of several tracts of land, and that they are wrongfully withheld from him by the defendant, Patrick Molony. It is admitted that Molony purchased the lands from the United States, and that he has a patent for them. But the validity of the patent is denied, upon the ground that the land had been granted to Julien Dubuque by the authorities of Spain, before Louisiana had been transferred by France to the United States. ”

“ Julien Dubuque; and in case he shall find nothing within, he shall be free to search wherever he may think proper to do so, and to work peaceably without any one hurting him, or doing him any prejudice in his labors. Thus we, chief and braves, by the voice of all our villages, have agreed with Julien Dubuque, selling and delivering to him this day, as above mentioned, in presence of the Frenchmen who attend us, who are witnesses to this writing. ”

“ Rockwell, 128-387. Such were the regulations of Spain in respect to the rights of the Indians in lands and mines before Louisiana became a part of her dominions, from the cession of it by France in 1763.
What were the regulations of France in respect to mines in her colonies, we need not inquire into, as the transaction we have before us happened after France had parted with the province, and after Spain had legislated new ordinances upon the subject of mines, which were applicable to all of her dominions, as well those in North as in South America. ”

“ In Carondelet's indorsement of the petition there is no order of survey, none of the usual words of a patent or complete title, no reference to the authority of the king, no grant in his royal name. It is unlike the complete titles usually granted. United States v. King, 7 Howard, 852.
To a complete title, to a full property in fee under the Spanish law, a survey, a formal investiture of possession by the proper officer, and a title thereupon in form, were indispensable. Until then the title was but incipient, inchoate, equitable only, not full and complete. ”

“ III. The assent of the Baron de Carondelet to the petition establishes the truth of its statements, and the moment he assented, the sale by the Indians, to Dubuque, thereby ceased to be a link in the chain of title.
IV. Our government cannot grant or sell land which does not belong to it. ”

“ The petitioner then states, that the chiefs of the Fox Indians, a few days afterwards, assented to the erection of monuments, and that they were erected at the mouths of the rivers just mentioned, as evidence of the upper and lower boundaries of the tract of land.
It is also said that Dubuque occupied the land from the time it was sold to him; that he made improvements on it, cleared an extensive farm, constructed upon it houses and a horse-mill; that he cultivated the farm and dug lead ore from the land, which he smelted in a furnace constructed for that purpose. ”

“ O'Reilly did not think that the sale had been completed so as to pass the title to it under the French law, though it had been executed before the governor. De la Clare then petitioned for a grant of one league to front upon the Teche, by a league in depth, making the sale to him from the Indians, of two leagues in front, from north to south, limited on the west by the River Vermilion, and on the east by the River Teche, the foundation of the equity of his claim for a grant. Governor O'Reilly received the application and granted a league in front by a league in depth. ”

“ His order is, granted as asked, under the restrictions expressed in the information given by the merchant, Andrew Todd. This is a very novel condition to be annexed to a grant of land in full proprietorship, if the governor meant to give such a grant. Does it not rather imply that the governor meant to permit him to continue in the quiet enjoyment of the mines, and to work them, with the use of the lands, as the Indians had permitted him to do for eight years, notwithstanding what had been Dubuque's irregular interference and appropriation of the trade with the Indians. ”

“ At all events, if the words of the paper are doubtful as to what the Indians meant to sell, as the copy of the council is written in a language which they could neither read nor fully understand, it will be but right to hold it as an uncertainty, and not to permit their bargainee, Dubuque, or his alienees, to give it a fixed meaning in their own favor. ”

“ It was determined that they could do so. Law 14, title 19, book 4, Collection of the Indies, Rock. 137. And the mines discovered by Indians were declared to be, in respect to boundaries, on the same footing, without any distinction, as those worked or discovered by Spaniards. Besides the other privileges secured by this ordinance to the owners of mines upon the public lands, they had the right to use the woods on mountains in the neighborhood of them, to get timber for their machines, and wood and charcoal for the reduction of the ores. Rockwell, 82, § 12, c. 13. ”

“ In the meanwhile the last war with England was approaching, and English emissaries were on the frontiers, inciting the savages to hostilities against our people. Our government was not then, as it now is, sufficiently strong to protect the frontiers. ”

“ Lead made per annum? From 20 to 40,000 pounds. The answers to the other questions are equally indefinite, and all were so excepting as to the place where the grant could be found.' 1 Appendix to Pike's Expedition, 5. These answers, however, were communicated to Mr. Gallatin before the commissioners for adjusting land claims had made their report, and they serve to show that when he made his report to the President upon the Dubuque claim, that he had done so with his usual care and caution. ”

“ The formula observed by the Spanish governors, in making complete grants, always stated that they were made in the name of the king, and in virtue of the authority vested in them by the king.
The regulations of O'Reilly were, it is to be observed, to be the land law of Louisiana until the king should otherwise dispose. The laws of the Indies had nothing to do with the subject.
The Council of the Indies approved of the regulations of O'Reilly. 2 White, 463-4. Unzaga succeeded O'Reilly; Galvez succeeded him, 1779; Miro succeeded him, 1786; Carondelet, him, 1791 ”

“ By the act of 1828, (4 Stat. at Large, 285) these claims were to be adjudicated according to the forms, rules, regulations, conditions, restrictions, and limitations prescribed to the district judge, for claimants in the State of Missouri, by the act of 26th May, 1824. ”

“ Julien Dubuc; et si en cas ne trouve rien dedans, il sera m etre de cherche o u bon lui semblera, et de travailler tranquillement, sans qu'aux qu'un ne puisse le nuire, ni portez aucune prejudice dans ses travaux; ainsi nous, chef et brave, par la voie de tous nos villages, nous sommes convenu avec Julien Dubuque, lui vendant et livrant de ce jour d'hui comme il est mentionne e ci-dessus, en presence de Fran ois qui nous attende, qui sont les temoins de cette piece, a la Prairie du Chien, en plein conseil le 22 7br., 1788. ”