[427]

County of Acadia, in the Eastern District of
the Territory of Orleans.

all other records of a public nature, relating to referring to the plat of Lafon. The notice of
the granting, sale or transfer of land; and to the claim of William Conway was presented to
decide, in a summary way, according to jus- the board February 28, 1806, and is as follows:
tice and equity, on all claims filed with the reg-"Notice of the claim of William Conway, of the
ister or recorder in conformity with the Act,
and on all complete French or Spanish grants,
the evidence of which, though not thus filed, William Conway claims a tract of land sit-
might be found on the public records of such uated in the county aforesaid, at the place called
grants; and that their decisions should be laid Houmas, on the left bank of the Mississippi,
before Congress, and be subject to its determi-containing twenty-two and a half arpents in
front on said river, with an opening towards
the rear of 60 degrees and 45 minutes, the up-
per line running N. 9° 15 E., three hundred and
fifty-one arpents, and the lower line directed
N. 70° E., and measuring four hundred and
fifty-five arpents. Bounded on the upper side
by Daniel Clark, and on the lower by Simon
Laneau, as more fully described in the annexed
plat, executed by Bartholomew Lafon, deputy
surveyor, dated February 20, 1806.

nation.

Part of said land, that is to say, seventeen arpents front, were originally granted with a greater quantity by the Spanish Government to Maurice Conway, by virtue of a complete title issued on the 21st day of June, 1777, as per document No. 1, and the same conveyed to the [428] claimant by the grantee aforesaid, on the 27th day of October, 1786, as per document No. 2.

And the five and a half arpents remaining to the complement of the 224 aforesaid, were transferred to the claimant, on the 27th day of March, 1781, by Pierre Part, who had purchased the same at the public sale made before Louis Joudice, commandant of the Parish of La Fourche of the estate of the late Joachim Mire (alias Belony), on the 7th day of December, 1878, as it evidently appears by the authenticated document hereunto annexed, No. 3.'

For this latter purpose, the clerk of the com-
missioners was required to prepare two tran-
scripts of the decisions in favor of the claimants,
each to be signed by a majority of the commis-
sioners, one of which was to be transmitted to
the Surveyor-General of the district, and the
other to the Secretary of the Treasury. And
the commissioners were required to make to
the Secretary a report of the claims rejected,
with the evidence offered in their support; and
he was required to lay the transcripts and re-
ports before Congress at its next session. Un-
der the Act, the claimants of the Houmas tract
delivered to the register of the land-office at
New Orleans notices of their respective claims
to the land which they asserted was covered by
the grant to Maurice Conway made by Gover-
nor Galvez, June 21, 1777; Donaldson and Scott
to the upper subdivision, Daniel Clark to the
middle subdivision, and William Conway to
the lower one. Each of these claimants de-
duced his title from Maurice Conway, and ac-
companied his notice with a plat of a survey by
one Lafon, to whom reference is made above.
These plats do not purport to have been pre-
pared entirely from his own surveys, but chiefly
by reliance upon the surveys of others. In the
certificate given to Donaldson and Scott, which It is to be observed that, although the deed
bears date December 28, 1804, he describes of conveyance of Maurice Conway aforesaid
himself as a surveyor commissioned by Gov-contains 27 arpents front, the claimant only
ernor Claiborne, though not for any particular possesses seventeen, having disposed of the oth-
survey; and certifies to the plat from a survey er ten in favor of Daniel Clark.
made by Marriner and from measurements by
himself on the River Iberville. In the certiti-
cate given to Daniel Clark, which bears date
September 25, 1805, he certifies from surveys
of Marriner and measurements of his own on
the River Amite and environs of Galveston, a
village on that river. In the certificate to Will-
iam Conway, which bears date February 20,
1806, he describes himself as deputized by one
Isaac Briggs, Surveyor-General of lands south
of Tennessee, and certifies to the plat from sur-
veys executed by Andry in 1804, and by him-
self on the River Amite in 1803. These plats
cover all the land embraced within the lines of
the original purchase by Conway and Latil
from the Indian Tribes in 1774, extended back,
not only so as include the additional arpents
surveyed by Andry in 1776, and granted by
Governor Galvez in 1777, but all the lands be-
yond these to the limits of the Spanish posses-
sions, several miles distant from the river, and
embracing over 180,000 acres. They possess
no official character, and have no greater effect
as evidence than any private surveys made at
the request of claimants. The notices of the
claims thus delivered to the register of the
land-office were by him laid before the Board of
Commissioners. The board confirmed the
claims, following in its decree the description
of the land given by the claimants, but not

William Conway." The decree of confirmation was made by the board on the 3d of March, 1806, and is as follows:

"No. 125. W. Conway.

Monday, 3d March, 1806.
"William Conway, aforesaid, claims a tract
of land situated in the County of Acadia, afore-
said, at a place called Houmas, on the left bank
of the Mississippi, containing twenty-two and a
half arpents in front, with an opening towards
the rear of sixty degrees, forty-five minutes, the
upper line running N. 9° 15 E. three hundred
and fifty-one arpents, and the lower line direct-
ed N. 70° E., and measuring four hundred and
fifty-five arpents, bounded on the upper side by
Daniel Clark's land, and on the lower side by
land of Simon Laneau; it appearing to the
board from a patent or complete title exhibited
that seventeen arpents of front were, together
with a greater quantity granted by the Spanish
Government to Maurice Conway, 21 June, 1777;
and it appearing that the five and a half ar-
pents of front remaining of the land aforesaid
were purchased by Pierre Part at the public
sale of the estate of the late Joachim Mire (alias
Belony), on the 7th day of December, 1788; and
it further appearing to the board from two sev-
eral instruments of conveyance offered in testi-
mony that the two tracts of land, af'd, have

[429]

been conveyed to the present claimant, the veyors were engaged in the immediate vicinity
board do hereby confirm his claim, aforesaid." of the grant.
The confirmation of the claims of Donaldson To this communication the Commissioner of
and Scott and of Daniel Clarke was substantially the General Land-Office replied, under date of
in the same form, differing only as to the lines February 17, 1829, expressing the opinion that
within which it was alleged the lands lay. The the grant made by Galvez in 1777 was so vague
claims were respectively designated as No. 133 in its terms, both as to boundary and quantity,
and No. 127. The decisions were made before that it would be indispensably necessary for
one of the commissioners had become a mem- courts of justice to interfere for the purpose of
ber of the board, and as soon as he qualified he defining and designating both; that the claim
dissented from them. This fact will be im- set up to all the vacant land which might be
portant in considering the effect of the legisla- embraced between the northern and southern
tive confirmation in 1858.
boundary of the original grant, if it were ex-
tended in the course called for, led to such ab-
surdities that he thought it impossible that the
courts could sanction it; that the object for
which the grant was asked and obtained would,
therefore, be the leading consideration on which
the courts would probably decide the question;
and, in so deciding, they might possibly con-
fine the grant either to the limits of the survey
actually made by Andry or to eighty arpents,
the usual extent granted when the front grant
was deficient in timber, or to the distance of
one league and a half, as requested in the peti-
tion; and that, if this last limitation was adopt-
ed, full scope would be given to the court to
exercise its discretion; and, if the grant could
be adjudged to exceed these limits, it must ex-
tend to the utmost boundary of Louisiana. He,
therefore, decided that a league and a half [431]
should not be open to entry, and gave instruc-
tions accordingly. Lands beyond that depth
were, therefore, treated as public lands, and
numerous entries of them were made at the dis-
trict land-office.

As required by the Act of 1805, a transcript of the favorable decisions rendered by the commissioners, including these three, was duly forwarded to the Secretary, who, in January, 1812, transmitted the same to Congress. The decisions themselves were merely an expression of opinion by the commissioners. They had no effect upon the title of the claimants until approved by Congress. Until then they amounted only to a recommendation of their favorable consideration by the government. No recognition of them by Congress was made until the passage of the Act of June 2, 1858 [11 Stat. at L., 294], of which we shall hereafter speak. In the meantime efforts were constantly made to procure a recognition of their validity by the officers of the land department, but without success except in one instance, that by Secretary Bibb in 1844. With that exception and the decision of the two land commissioners, no officer of the government has ever recognized the validity of the grant by Governor Galvez to the extent claimed by Conway and parties deducing their interest from him.

Before this correspondence between the SurOn the 14th of January, 1829, the Surveyor-veyor-General and the land commissioner, GenGeneral of Mississippi, ex-officio Surveyor-General Wade Hampton, of South Carolina, had aceral of Louisiana, addressed a communication quired title to the claim made by Donaldson and to the Commissioner of the General Land-Of-Scott, and to that of Clarke; and, he having fice, inclosing a rough plat of the Houmas grant died, his heirs, through J. S. Preston, one of showing its locality, the extent of land claimed, them, in June, 1836, applied to the land-office and its interference with other grants of the for a patent, and requested, if it could not be Spanish Government. In it he stated that, pre granted, that the land within the claims should viously and subsequently to the date of the be withheld from sale, and that patents should grant, the Spanish authorities had made other not be issued for the parcels already sold. To grants to a number of individuals within the this application the commissioner, Mr. Ethan A. limits alleged to be covered by the claim of Brown, replied, addressing his communication Conway, and that he believed no pretension to to a Senator from Louisiana, through whom the present limits was made until after the right the application was presented, stating that into the land had vested in the United States. asmuch as he did not consider the claims, to He also stated, as another reason why the grant the extent insisted on before the Board of Com[430] could not be extended to the Amite River, that missioners, recognized by the United States, neither the petition of Conway, the decree of the office could not issue a patent therefor; but the Governor, nor the proceedings of the sur- as the law did not authorize the sale of any veyor called for or exhibited any such bound-lands, the claim to which was filed with the aries; and that it was well known to be the cus- commissioners for investigation, until the final tom of the Spanish surveyors, in all cases action of Congress thereon, he had directed the where a grant called for specific boundaries, to register of the land-office at New Orleans to exhibit them in a plat of survey. He then con- withhold from entry all the lands within the sidered where the boundaries were to be estab-limits of that claim, as described in the reports lished, and he suggested that, if we were to be of the commissioners, and to report a list of all governed by the customs of the Spanish Gov- the lands sold within those limits, in order that ernment, we should run off such a depth as patents might not be issued therefor. would extend the upper line until it intercepted an older grant. This he was of opinion would strictly conform to the decree of the Spanish Governor, although it would not give the claim a depth of eighty arpents, which he thought was designed if the land was found to be vacant. He then asked instructions to guide him, as sur- |

Notwithstanding this direction of the commissioner, it would seem that the land officers at New Orleans approved of preemption settlements on the land claimed, and floats located there; and in the following year (1837) complaints of these proceedings were made to the General Land-Office by Mr. Preston, on behalf of

the heirs of Hampton. A communication from by Donaldson and Scott and by Daniel Clark. him on their behalf was also laid before the This action of the Secretary and the issue of the Senate, in which he prayed that the commis- patents gave rise to much unpleasant comment; sioner should be directed to refuse titles to and soon after the meeting of Congress in Dethose who had purchased by preemption or oth- cember following a resolution was passed by erwise, by refunding the money paid and taking the Senate calling upon the Secretary to comup the certificates of entry as far as possible, municate a copy of his opinion directing such and also that he should be directed forthwith to issue, and of opinions by other officers connected issue a patent for the whole claim. The me- with the General Land-Office in relation to the [432] morial was presented and referred to the Com-claims, and of the surveys and transcripts of mittee on Private Land Claims, but nothing confirmation. came from it.

the Location of Certain Confirmed Private There were good reasons for this. The three
Land Claims in the State of Missouri, and for
Other Purposes."

Its 2d section enacted, "That the decisions in favor of land claimants made by P. Grimes, Joshua Lewis and Thomas Robertson, commissioners appointed to adjust private land claims in the eastern district of the Territory of Orleans, communicated to the House of Representatives by the Secretary of the Treasury, on the ninth day of January, one thousand eight hundred and twelve, and which is [are] found in the American State Papers, Public Lands, (Duff Green's edition), volume two, from page [435] two hundred and twenty-four to three hundred and sixty-seven, inclusive, be and the same are hereby confirmed, saving and reserving, however, to all adverse claimants the right to assert the validity of their claims in a court or courts of justice; Provided, however, That any claim so recommended for confirmation, but which may have been rejected, in whole or in part, by any subsequent board of commissioners, be and the same is hereby specially excepted from confirmation."

decisions which relate to the claims under the
Houmas grant were made by only two of the
commissioners. The third commissioner, who
joined in the other decisions, was not a member
of the board when these three were rendered;
but as soon as he became a member he expressed
his dissent from them. This dissent accom-
panies the report of the decisions made to the
Secretary of the Treasury, and laid by him be-
fore the House of Representatives, and is found
in the volume to which reference is made, im-
mediately following the three decisions, in these
words:

"The three foregoing decisions were made
before I became a member of the Board. As
far as I am authorized to do so, I dissent from
the same.
Thomas B. Robertson."

To the volume of state papers mentioned,
everyone would be obliged to look in order to
learn what claims were confirmed; and there
this statement would confront him. When we
consider the notoriety given to the extravagant
claims under the Houmas grant; the continued
opposition of all the officers of the government,
with one exception, to a recognition of them;
the failure of repeated efforts to secure favor-
able action from Congress; the pendency of
legal proceedings authorized by Congress to va-
cate patents issued upon two of them; the large
number of persons in possession, who claimed
under sales of the government, a fact which had
been repeatedly brought to the attention of Con-

Its 3d section enacted, "That the locations authorized by the preceding section shall be entered with the register of the proper land-office, who shall, on application for that purpose, make out for such claimant, or his legal representatives (as the case may be), a certificate of location, which shall be transmitted to the Commissioner of the General Land-Office; and if it shall appear to the satisfaction of the said com-gress; we are forced to the conclusion that the missioner that said certificate has been fairly obtained, according to the true intent and meaning of this Act, then and in that case, patents shall be issued for the land so located as in other cases.

The passage of this Act at once excited great commotion among a large number of persons who occupied the land claimed under the Houmas grant, amounting, as stated by counsel, to nearly ve thousand. Measures were at once taken to prevent its provisions being carried out. On the 3d of March, 1859, Congress passed a Joint Resolution suspending the operation and effect of the 2d section until the end of the 36th Congress, so that no patent or patents should be issued, nor any action be had by the executive branch or department of the government, or any officer or agent thereof, by virtue of it. And, on the 21st of June, 1860 [12 Stat. at L., 866], Congress passed an Act repealing the 2d section, and declaring that it refused to confirm to the claimants under the Houmas grant the lands embraced in the certificates, No. 125 to William Conway, No. 127 to Daniel Clark, and No. 133 to Donaldson and Scott. The principal questions for our consideration arise upon the construction of the first of these Acts; and the effect of its repeal upon the con[436] firmation of the claims. In the first place, it is to be observed, that the decisions which are confirmed by the 2d section of the Act of 1858 are not described as those of the Board of Commissioners, nor of the commissioners generally, appointed to adjust private lands claims in the eastern district of the Territory of Orleans, which designation might be taken as referring to the board as a special tribunal; but as those rendered in favor of the claimants by the three commissioners designated by name.

limitation of the Act to favorable decisions made
by the three commissioners was intentional, and
that they were named, ex industria, to exclude [437]
from confirmation the claims under the Hou-
mas grant, which had given rise to so much
controversy and litigation, and had been so uni-
formly denounced and repudiated.

The position of the plaintiffs, that Congress
must have intended to include all reports made
by the board because under the Act of 1805 a
majority of its members were authorized to act
upon and determine the validity of claims pre
sented, does not strike us as a logical conclusion.
It would rather seem to strengthen our con-
struction, for by naming decisions made by the
three commissioners the Act indicates that Con-
gress intended to refuse a confirmation of de-
cisions made by two of them. If it had intended
to confirm all favorable decisions of the board,
whether made by a majority of its members or
by them all, its intention could have been ex-
pressed by simply mentioning the board, with-
out designating its members, as had been usual
where the decisions of similar boards were con-
firmed. The present instance is the only one,
it is believed, where, in the legislation of Con-
gress confirming grants, the names of the com-
missioners whose favorable action was approved
have been mentioned. This departure from the
ordinary language in such cases was, we think,
for a special purpose. We must assume that
the members, by whose vote the Act became a
law, fully weighed its meaning and intended
what it expressed. It is also a familiar rule of
construction that where a statute operates as a
grant of public property to an individual, or the
relinquishment of a public interest, and there is
a doubt as to the meaning of its terms, or as to
its general purpose, that construction should be