Q. Was not the evidence of the uniform practice of making grants by the Lieutenant Governors for thirty years, supposed to be covered by the Livre Terrien?

A. That the Lieutenant Governors were not bound by the regulations of O'Reilly, Gayoso, or Morales, there is evidence on the face of that book; inasmuch as it records grants which went beyond the limits laid down by O'Reilly. Those regulations declared that 320 arpents should be the maximum, if on the banks of the river Mississippi; and a league square in Natchitoches, Attacapas and Opelousas; and it was contended that, if these regulations were in force in Upper Louisiana, no grants could have gone beyond 320 arpents; and even that, on certain conditions only; whereas the Livre Terrien will show grants of all dimensions, from 40 arpents to 8,000. Those regulations could not have had an application to Upper Louisiana without rendering the country a desert. They would restrict cultivation or concession to the banks of the river, which, generally, in Upper Louisiana are that part of the country least fit for settlement. Q. Do you not understand the regulations of O'Reilly as allowing concessions, for agricultural purposes, in proportion to the agricultural means of the settler ?

A. Certainly, for every purpose; but they limited the grants, as I have before stated, both as to the location and quantity.

Q. To what part of the Opinion do you refer, as supporting this 15th specification?

A. I refer to the Opinion negatively; because, although this uniform practice was referred to, and argued, it is, in the Opinion, totally disregarded. It was seriously relied upon by the counsel of Soulard; yet, by the decree, it was set aside as of no value. I do not point to any specific clause of the Opinion, but refer to the whole Opinion, and to the decree, as compared with my printed argument :-Especially page 7 of that argument.

Q. In your 16th specification, you charge the Judge with virtually declaring "that the historical fact, that nineteen twentieths of the titles to lands in Upper Louisiana were not only incomplete, but not conformable to the regulations of O'Reilly, Gayoso, or Morales, at the date of the cession to the United States, affords no inference in favor of the general legality of those titles," and you told us, I think, that this historical fact is gathered from Stoddard's History of Louisiana?

A. Yes; and I refer the court to Stoddard's book, page 252.

Q. Stoddard was a military officer, was he not, who received the charge of the province in 1804 ?

A. He was an officer, both military and civil.

Q. Do you consider an historical work of this kind, a proper species of evidence to be considered by a court?

A. I considered it as an historical evidence, and a very persuasive one: I conceived it the duty of the court to allow its whole weight to truth of this kind, from whatever source it could be obtained. The character of Stoddard was high and unimpeachable, and his memory is to this day revered in Louisiana : I thought the book strong historical evidence, especially as taken in connexion with the other evidence adduced before the court.

Q. Do you hold that a court is bound to refer to evidence like this?

A. I think a court is bound to consult all sources of information which have a bearing on the law.

Q. Were not these historical records as accessible to you as they were to the court? and could you not have obtained copies of them?

A. Yes, I suppose I might they were in the archives of the province.

Q. You, then, considered Stoddard's History, and a general reference to certain records in a public office, as evidence on which a court ought to base its opinion?

A. Yes, certainly.

Q. To what part of the Opinion do you refer, as sustaining this 16th specification?

A. I refer to my printed argument, pages 7, 8, 9, 10, 25 and 26,* to show that the question was raised; and to the Opinion, to show that it was disregarded. Q. Where is it that the court made the assumption that such an historical fact is to have no effect?

A. I refer to the fact, (which can be proved) that Judge Peck has acknowledged, that he examined Stoddard's book.

[Mr. Wirt here said, There is no doubt of that fact; it will not be controverted.] The fact appears in the opinion delivered by Judge Peck in Chouteau's case. Q. That is not admissible at present. I ask to what part of the Opinion do you refer?

A. To page 67.

"The presumption which arises in favor of the validity of the acts of the supreme authority, especially such as the enactment of regulations, and the acknowledgment of the authority of these for a series of years, is of a higher nature than that which arises in favor of the legality of a single act, or even a series of acts, such as concessions of land by the Lieutenant Governor; particularly when these acts are to be subject to the approval and confirmation of that supreme authority which gave those laws that were to regulate the subject of concessions." Q. Your 17th specification charges the Judge with assuming "That the fact that incomplete concessions, whether floating, or located, were, previous to the cession, treated and considered, by the government and population of Louisiana, as property, saleable, transferable, and the subject of inheritance and distribution ab intestato, furnishes no inference in favor of those titles, or to their claims to the protection of the treaty of cession, or of the law of nations." You said, I think, that the only evidence produced by you, before the court, of these sales, transfers and dispositions, was a list, made out from the proceedings in the clerk's office?

A. Yes. A list made out for me by Mr. Le Duc. The facts appeared to be admitted. [Here the witness read from his printed argument :]

"The perfect security with which the inhabitants of Louisiana acted on these concessions,-bought, sold, transferred, and disposed of them by act inter vivos, or by last will and testament, demonstrates the existence of the usage, and the general impression that those concessions were legally made, and by proper authority.

"Judicial sales of intestates' estates, including incomplete titles of this description, have been made not only under the sanction of the Lieutenant Governor of Upper Louisiana, but have been ratified by the supreme authority at New Orleans."

Again:

"It has been already observed that original concessions, and the land granted by them, before any complete title had been issued thereon, were objects of sale and transfer inter vivos, and of distribution and sale as property of testators or intestates. In support of these propositions we refer to the records in the office of the clerk of the Circuit Court for the county of St. Louis.

"Amongst a number of others, we find the following sales and transfers recorded:

"1st. 18th February, 1775, public sale sanctioned by Pedro Piernas, Lieutenant Governor, of 2 arpents by 40, belonging to the estate of Guillaume Bizet, purchased by Charles Bizet.

"2d. 2d October, 1774, public sale of a tract of land of 5 arpents by 40, at the place called Belle Fontaine, under the decree of the Lieutenant Governor Pedro Piernas, for sale of same, at request and demand of Mr. John Bte. Sarpy, attorney in fact of Louis Chamart: said land purchased by P. Perrault, No. 42.

* See the Appendix.

"3d. 13th November, 1774, public sale of land, the property of J. B. Martigny, containing 4 arpents in breadth by the depth from the Mississippi to the hill, purchased by Charles Bizet, No. 148.

"4th. 4th July, 1799, public sale of the property of the deceased Laclede Liguest, to wit: a tract of 6 by 40 arpents of land in Big Prairie, bought byMadame Chouteau, No. 264, by virtue of the decree of Fernando de Leyba, Lieutenant Governor.

"5th. 4th July, 1799, public sale of the mill and dependencies belonging to the estate of Laclede Liguest, deceased, bought by Auguste Chouteau, sold by virtue of decree, F. de Leyba, Lieutenant Governor, No. 265.

"6th. 12th June, 1801, public sale after the failure of Hyacinthe St. Cyr, (merchant,) made at the request of the creditors, and by virtue of a decree of Charles D. Delassus, Lieutenant Governor, 919 arpents, situate on Crevecœur, county of St. Louis, purchased by James Richardson, No. 1500: on same day, as part of same estate, 573 arpents at St. Ferdinand: on same day, ditto, 12 arpents by 40, No. 1500. [The No. is that which the document bears in the index to the Spanish and French records in the clerk's office.]

"7th. 14th April, 1802, deed of partition before Lieutenant Governor Delassus, between the heirs of Madame Cerre, of divers tracts held under incomplete titles, No. 1500.

"It is submitted that the concession at present under consideration is equally legal with all those above referred to, and which have been recognized as such by the supreme Spanish authority; and is equally legal, and equally the subject of sale, transfer, and distribution, as any of those recorded in the office of the clerk of the Circuit Court for the county of St. Louis."

Q. What is the distinction between concessions floating, and located, of which you here speak?

A. A floating concession is a concession to an individual of a certain quantity of land in such place as he may select, in any part of the royal domain, where it can be located without injury to the rights of others. The concession to Soulard before it was located by survey, was of this description. It might be located anywhere in Upper Louisiana.

Q. To what part of the Opinion do you refer under this specification?

A. I have already referred to my printed argument, pages 7, 8, 9, 10, 25, 26. I refer also to exhibit A, generally; to the Opinion, page 67; and particularly, to the documents exhibiting the deposition of Delassus, page 37 to 41; also to the complete titles exhibited before the court; and to Exhibit L, page 45, being the letter of the Marquis De Casa Calvo to Mr. Delassus.

Q. On the list to which you refer, was there any one case of floating title? A. I must look before I can reply. [Here the witness consulted a paper.] I do not see any such cases.

Q. You say, in your 18th and last specification, that it was assumed by Judge Peck "That the laws of Congress, heretofore passed in favor of incomplete titles, furnish no argument or protecting principle in favor of those titles, of a precisely similar character, which remain unconfirmed." By the act of 1824, the court is required to refer to certain acts of Congress, in examining land titles; are these the laws to which you refer in this specification? A. Yes; extending from 1805 to 1824.

Q. You mean, then, to say, that there were certain laws of Congress before the District Court, which called for the confirmation of such a claim as Soulard's, but which the court disregarded?

A. No. I mean no such thing. To explain what I did mean, I refer to my printed argument, page 33. [The witness here read as follows:

"As an additional argument in favor of a liberal construction of titles such as the present, we rely also on the peculiar nature of the present law, and all the former laws of Congress on the same subject. The character of all of them is essentially remedial. When, therefore, in any of those laws, a principle of pro

tection is conceded by Congress, it is submitted that the claimant in this court is entitled to the benefit of that principle. In no other rational sense can the provision in the present act be understood, which authorizes the court to frame its decree as well with reference to those laws as to any other law or usage.

"It has been contended at the bar on behalf of the United States, that a penal or disqualifying effect should be given to certain of those acts of Congress. This position it has been the duty of the counsel for the claimant to refute in argument, and is here noticed only on account of its self-evident error." I also refer to the Opinion, page 77:

"That part of the act which requires the court to determine the question of the validity of the title, according to the several acts of Congress,' &c. has been adverted to, on behalf of the claimants, but not seriously relied upon as furnishing the ground of a claim to confirmation in the present case.

"Upon this point it is only necessary to remark, that there is certainly no act of Congress which would authorize the confirmation of the present claim, or any part thereof."

Q. On this part of the Opinion, then, you rest, in defence of your 18th specification?

A. Yes. It was contended that, inasmuch as grants of the same kind had been confirmed by the United States Commissioners, whose decision was ratified by Congress, a principle was furnished which ought to protect the concession to Soulard; and that if Soulard's claim had been before the Commissioners, they would have confirmed it, to the extent of a league square; (which was as far as their powers would go;) and in support of this position we referred to cases where the Commissioners had confirmed parts of concessions, (being restrained from confirming the whole,) in which cases their acts had been afterwards ratified by Congress. This was our argument; and it being disregarded by Judge Peck, I considered my 18th specification as justified.

Q. The desision of the Judge is, that there existed no act of Congress calling upon the District Court to confirm such a claim as that of Soulard. Did you refer to any act which did?

A. We referred to the acts of Congress, and the confirmations by the Commissioners since ratified by Congress.

Q. The court says that there is no act of Congress which would justify the confirmation of Soulard's claim. I now ask you what acts there are which would justify it?

A. The acts of 1807, and of 1814, furnish a principle which could be appealed to, in aid of this claim; and as they show that this is a sort of concession which Congress protected, by confirming other claims less meritorious. All this, however, is matter of argument.

Q. You say, then, that your opinion was, that wherever Congress confirmed a claim, the court was bound to confirm all similar claims?

A. I have already endeavored to answer this question clearly; and I fear that, by answering it too often, I may get into a cloud; but if this honorable Court does not understand my first answer I will repeat it.

Q. Have you seen a petition purporting to be the petition of Luke Edward Lawless to the House of Representatives, and which is appended to a report made to that House by the Judiciary Committee ?

A. Yes. I wrote it myself.

Q. Is this a correct copy of that petition?

A. Yes; I believe it is.*

Q. Document No. 4 appended to that report exhibits two columns, one containing extracts from the article signed "A Citizen," and the other containing extracts from Judge Peck's Opinion. Was this also presented by you to that House?

* See the Petition in the Preliminary Proceedings in the House of Representatives.

A. Yes. It does not contain a complete view of the subject, but I thought it might aid the deliberations of the committee; so I placed the extracts in jutxaposition.

Q. Is this a correct copy of that document ?

A. Yes.*

Q. When was the petition presented?

A. It was sent on to Mr. Scott of Missouri in the session of 1826-7; and it was presented in December following. The Judiciary Committee of the House of Representatives moved to be discharged from its consideration, and that I should have leave to withdraw my petition and documents, late in February, succeeding. The petition was not, I believe, acted upon at the next session : but I never lost sight of it; and I acknowledge that I exerted myself to the utmost to have it placed before the highest tribunal of the country. When I last presented it, I addressed myself to a member of Congress from another State than Missouri; because Mr. Bates, who was then the Representative from the State of Missouri, in the House of Representatives, had been District Attorney for the district of Missouri; and as I did not certainly know what was his view of the case, I thought, upon the whole, that it would be more delicate not to trouble him in the matter. I therefore addressed myself to Mr. McDuffie; who had the goodness to present my petition.

Q. You say that Mr. Strother and yourself were concerned in these land

causes ?

A. We were.

Q. Do you know the number of acres involved by all the claims for which you and he were counsel ?

A. Not exactly. There was one very large claim. Excluding that, the residue might perhaps have amounted to 150,000 acres ; possibly, not more than 100,000. I really cannot tell.

Q. What was the large claim to which you referred ?

A. It was a claim of Člamorgan.

Q. He had two claims; one for 512,000 arpents, which was excluded by the act of 1824; and another for 536,000 arpents, which was not excluded. Was the petition filed in this latter cause?

A. I think it was not filed until the time limited in the act of 1824 had been extended. It was not on the docket which I had, before the extension of the time. It may, however, be on the docket, afterwards. It was withdrawn sometime before the act expired.

Q. Was it withdrawn after Soulard's case had been decided?

A. Yes. None were withdrawn before that. There were 145 claims withdrawn, as I learned from the marshal of the court, but not until the sum of near $4,000 in costs, had been paid by the unfortunate claimants. Such, at least, is the amount stated to me by the marshal.

Q. Were these costs paid by those who withdrew their causes?

A. That amount covers all the costs. I applied to the marshal to learn the amount, and such was his statement. The great amount of costs incurred was one of the grievances in the case. These costs had been paid by those poor people totally in vain.

Q. In vain ?

Q. Could they not wait the result of the appeal ?

A. No. They were shown by their counsel that there must be a decree against the whole of their claims, and to continue the suits would involve them in an amount of costs such as the counsel could not calculate. They were therefore advised to withdraw the suits, and to await the decision of the Supreme Court, which might establish principles favorable to their claims; in

* See the Appendix.