
    Auguste Chouteau’s Heirs v. The United States.
    A concession Dfland'Was made by the lieutenant governor of upper Louisiana ; at the time when the power of granting lands was'vested in the governors of provinces. This power was, in 1799, after thj. copcession, transferred to the intendant-general; and after this transfer, in January 1800, the order of survey of the land was made by the lieutenant governor. The validity of the order of survey depends on the authority of the lieutenant governor ■to make it. The lieutenant governor was also a sub-delegate, ^Md as such was empowered to make inchoate grants. The grant was confirmed.
    The transfer of the power to make concessions of lands belonging to the royal domain of Spain, from the governor-general to the intendant-general, did ■ not affect the power of the sub-delegate, who made this concession.. The order in this case is the foundation of title, and. is, according to the act of ■ congress on the subject of confirming titles to lands in Missouri, &c., and the. general understanding and usage of Louisiana and Missouri, capable of being perfected into a complete title. It is property, capable of being alienated, of being subjected to debts; and is, as such, to be held as sacred and inviolate as other property.
    ON appeal from the district court of the United States for the district of Missouri.
    Ori the 18th of May.1829, the following petition, with the documents therein referred to, was presented by the appellants to the district court of the United States- for the district" of Missouri.
    “ To the honourable the district court of the United States for the district of Missouri.
    “ The petition of Auguste A. Chouteau, Gabriel Ceré Chou-teau, Henry Chouteau, Edward Chouteau. Eúlalie Paul and René Paul, husband of said Eulalie, Louise Paul and Gabriel Paul, husband of said Louise, Emilie Smith and Thomas F. Smith, husband of said Emilie,'respectfully showeth, that, in the year 1799, Auguste A. Chouteau, deceased, late -of St Louis, the father of your petitioners, applied to and obtained permission from the government then existing in upper Louisiana, to establish a distillery in or near the town of St Louis, as will more fully appear by the petition and order thereon, dated the 5th of November 1799, and '3d of January 1800, which are herewith shown to the court and prayed to be taken as part of this petition, marked No. 1; that on the 5th day of January 1800, said Auguste Chouteau presented his petition of tha,t date to thé lieutenant governor of the province of upper Louisiana, praying that a tract of land containing twelve hundred and eighty-one arpents, superficial measure of Paris, situated near the town of St Louis, bounded on the north by a tract granted to Doctor John Watkins, on the south, and oh the west by the lands of the third line of concessions, should be granted to the said Auguste Chouteau and1 his heirs, for the .purpose of enabling said .Auguste Chouteau to obtain a sufficient supply of fire wood'for the distillery aforesaid; that on the same day, to wit, the 5th. of January 1800, the. said lieutenant governor made his decree conformably to the prayer of said petition, whereby said lieutenant governor directed and ordered that the surveyor of the said' province, Don Antonio Soulard, should put the said Auguste Chouteau.in possession' of the said tract of twelve hundred and eighty-one arpents, in the place indicated and demanded, to the end that said Auguste Chouteau might afterwards obtain the complete title thereto from the governor-general, all which will appear by said petition and decree, now here produced, marked No. 2, and which petition and decree is prayed to be taken as part of this petition ; that afterwards, in obedience to said decree* to wit, on. the 5th day of March 1801, the said surveyor, Don Antonio Soulard, delivered the possession of said tract to said Auguste, and executed a survey and' plat of survey thereof, as will more fully appear by the said plat and certificate of survey, bearing date the- 10th of April lSOl, now here produced, marked No. 3, and which said plat and certificate were recorded in book A, p. 43,-No. 82, in. the office of.said surveyor, as by reference to the said certificate and to said.record in the office of the surveyor of this district , will appear; that said .decrees so -made by . said lieutenant governor, were made in pursuance of the special instruction given by the governor-general of Louisiana, Don Manuel Gayoso De Lemos, to said lieutenant governor,; .to favour and forward the aforesaid undertakings of said Áuguste Chouteau, as will appear by the letter, of said governor-general, addressed to said -Auguste Chouteau, under date the' 20th of May 1799, in answer to an application made by said Auguste Chouteau ¡Jo said governor-general, a» will appear by reference to said original letter herewith exhibited, marked No. 4, and prayed t© be taken as part of this petition ; that, by virtue of said decrees, survey, and delivery of possession,"said Auguste occupied and enjoyed said tract,' so. granted, as the lawful proprietor thereof, from the date of said delivery of possession until the decease of said Auguste Chouteau; that said Auguste, during his life, did, in conformity to the acts of congressj,n that case made and provided,. suDmit his claim to said tract, derived as aforesaid, to the board of commissioners heretofore created for the settlement and adjudication of French and Spanish land claims in upper Louisiana; that said board rejected said claim on the sole ground that a tract of a league square having been already confirmed to said Auguste Chouteau, the board had not power under the law, as it then stood, to confirm to said .Chouteau any greater quantity; and your petitionérs show that said board, for the purpose, as it is supposed, of testifying their sense of thq merits of said claim, did cause to be indorsed • on the back of a document therein exhibited to them, the words * bona fide,’ as will appear, reference being had to said document No. 2, herein before mentioned; your petitioners further show, that said Auguste Chouteau has departed this life, and that previous to his death he made his last will and testament} in due form of law, whereby he devised to your petitioners the said tract, of twelve hundred and eighty-one arpents, besides other property; to your petitioners and their heirs, as tenants in common. Wherefore your petitioners pray that said title may. be inquired into, and that the same be confirmed, as the same would have been confirmed had not the sovereignty of said province been transferred to the United States. .
    (Translation.) No. 1. “To Mr Charles Dehault Delassus, lieutenant colonel, attached to the regiment of Louisiana, and lieutenant governor of the upper part of same province, &c.
    “Auguste Chouteau has the honour to expose, that he wishes to establish, in this town, a manufacture proper to distil the several kinds of grains raised in this dependency, (to) supply the wants of the consumption of the place, of which remote distance to the chief city renders the importation too expensive to draw from it annually what is .necessary'for its use. Wherefore, sir, the supplicant, previous to subjecting himself tci considerable expenses to form such an establishment, wishes to obtain the honour of your consent, in order that hereafter he may not be subject to any alteration hurtful to his interests; wherefore the supplicant will acknowledge your good-néss, if you grant his request.
    “ Auguste Chouteau.
    “ St Louis of Illinois, November 5th 1799.
    “ St Louis of Illinois, January 3d, 1800.
    “ Considering, that the establishment which the supplicant' proposes to form will be useful to the public and to commerce, because there does not exist any of this nature, and that he will procure liquors in a greater abundance, and at a less price than those which are imported, and in very little quantity, from New Orleans, we grant the request.
    ■“ Charles Dehault Delassus, [l. s.].
    (Translation.) No. 2. “ To Mr Challes Dehault Delassus, lieutenant colonel, attached to the fixed regiment of Louisiana, and lieutenant governor of the upper part of said province.
    “ Auguste Chouteau, merchant, of this town, has the ho-nour to represent, that the lands adjacent to this town being mostly conceded, and timber becoming daily very scarce, he is very much embarrassed in the carrying on of the considerable distillery which you have permitted him to establish by your decree, dated 5th of November of last year; consequently, he hopes you will be pleased to assist him in his views, and have the goodness to grant him the concession of one thousand two hundred and eighty-one superficial arpents of this land, situated on the fourth concession in depth of the land adjoining this town; bounded north by the land of Dr John Watkins; south and west, by the lands of the third concession. The supplicant, besides having the intention tp establish the said lands, hopes to obtain of your justice the favour which he solicits.
    “ Auguste ChouTEAU.
    “ St Louis, January 5th 1800.
    
      St Louis of Illinois, January 5th 1800. ■
    “ Being satisfied that the supplicant has sufficient means to make available, in the term of the regulation of the governor-general of this province, the lands which he demands, the surveyor of this upper Louisiana, Mr Anthony Soulard, will put him in possession of the one thousand two hundred and eighty-one arpents of land in the place where he asks it; and afterwards the applicant will have to solicit the formal title of concessions of the intendant-general of these provinces, to whom belongs, by order of his M — , the disposing and conceding every kind of vacant lands of the royal domains.
    “ Charles Dehault Delassus.”
    No. 3. The survey of the.land was made by Antonio Sou-lard, principal deputy surveyor of Upper Louisiana, on the 5th day of March, and certified on the 10th of April 1801.
    “New Orleans, May,20th 1799.
    (Translation.) • No. 4. “ My dear friend : Wishing to testify to you my esteém, by every opportunity, I merely assure you of my esteem, promising you to answer your letter by the boat that just arrived, and which will leave here next week.
    “ In my instructions to JMr Delassus, I recommend him particularly to favour all your undertakings, &c. &c. .
    “AdieuI am. in such a hurry that I have .but the time to tell you that I am your sincere friend and most humble servant,
    “ Manuel Gayoso de Lemos.”
    The district attorney of the United States filed an answer to the petition, denying the claim of the petitioners, and requiring proof of the Same.
    At the January session of the district court in the year 1830, a decree was entered against the validity of the title and claim of the petitioners.
    From this decree the petitioners prosecuted this appeal.
    The case was argued by Mr White, for the appellants ; and by the Attorney-General, for the United States.
    
      For the appellants, it was contended :.
    1. That the title presented is a valid Spanish grant, made in conformity to the laws, customs and usages of the Spanish government.
    2. That the said title was confirmed by the treaty of cession of Louisiana*
    3. That the petitioners are entitled to a decree of confirmation by said treaty, and the proceedings under the same.
    Mr Butler, attorney-general, argued:
    1. - The decrees of the lieutenant governors,' relied on by the. petitioners, were made in contravention of the laws, ordinances and regulationrin force at the times when they respectively bear date, and which continued in force until the treaty of cession, and were therefore wholly void ; and being so, no valid claim under the treaty or. the acts of congress can be founded' thereon.
    2. The petitioners did not show in either case a title by prescription.
   Mr Chief Justice Marshall

delivered the opinion of the Court.

Auguste A. Chouteau and others, devisees of Auguste Chou-teau, presented their petition to the court of the United States for the district of Missouri, praying that their title to one thousand two hundred and eighty-one arpents of land, near the town of St Louis, in the state of Missouri, which they claim under the following circumstances, be confirmed.

. The late Auguste Chouteau applied to. the then existing, governor of upper Louisiana for permission to establish a distillery in or near the town of St Louis ; which permission was granted on the 3d of January 1800.

He then petitioned for a concession for one thousand two hundred and eighty-one superficial arpents of land, to furnish fire wood for his distillery; which was granted in the following words.

“ St. Louis of Illinois, January 5 th 1800.

“ Being satisfied that the applicant has sufficient means to make available in the term of the regulation of this province the lands which he demands, the surveyor of this upper Louisiana, Mr Anthony Soulard, will put him in possession of the one thousand two hundred and eighty-one arpents of land in the place where he asks it; and afterwards the applicant will have to solicit the formal title of concessions of the intendant-general of these provinces, to whom belongs, by order of his M — , the disposing and conceding every kind of vacant lands of the royal domains.

“ Charles Dehault Delassus.”

The permission of the governor-general ib erect the distillery is alluded to in the following letter from him to Mr Delassus.

“ New Orleans, May 20th 1799.

“ My dear friend : Wishing to testify to you my esteem by every opportunity, I merely assure you of my esteem, promising to answer your letter by the boat that just arrived; and which will leave here next week.

“In my instructions to Mr Delassus, I recommend him particularly to favour all your undertakings, &c. &c.

“ Adieu: I am in ouch d hurry that I have but the time to tell you that I am your sincere friend and most humble servant,

“-Manuel Gayoso be Lemos.” ■

The order of survey was executed on the 10th of April 1801, and the petitioner put into possession, which he retained till bis death, having first made his last will, in which he devised it to the petitioners, who have taken all the steps required by law, to preserve their claim.

The petition prays for a confirmation of the title. • The answer of the district attorney admits nothing, and submits the case to the court on the proof to be made by the petitioners. The erection of the distillery, and the manufacture of spirits'to a considerable extent, the' apparent motives to the grant, are fully proved.

The distinction between the case of Chouteau and others, and that of Delassus, whose title has been confirmed, consists in. this. The concession to Delassus was. made by the lieutenant governor of upper Louisiana by direction of the governor-general, at a time wheji the power of granting land was vested in the governors of provinces. This power was transferred to the intendant-general in 1799, after which transfer in 1800, the order of survey under which Chouteau claimed, was made by the lieutenant governor. The validity of the order depends on the authority of the lieutenant governor to make it. Chouteau alleges in support of this authority, that the lieutenant-governor was also sub-delegate, in which character he was empowered to grant incomplete titles.

Several documents have been laid before the court which satisfy us that the.lieutenant governors wére, by virtue of their office, sub-delegates. In the record in Soulard’s- case, which we understand is to be consideradas an exhibit in this, a letter from the lieutenant governor Delassus to the surveyor-general is introduced, in which he recites a letter of Morales, the in-tendant-general, to him, dated the. 1st of December 1802; informing him that in consequence of the death of the assessor he had closed the tribunal of affairs and causes relating to, grants and confirmations of royal lands. The letter adds : “ I make this communication in order that, apprised of this providence, you may not receive, frame or transmit memorials soliciting lands until farther order’s.”'

In a letter of the 26th of August 1799, addressed by Morales to Don Carlos Dehault Delassus, in which he notices instructions given by Delassus to Roberto M’Kay, in his character of sub-delegate, he observes, “ I must say, that it being contrary to law that one sub-delegate should transfer his powers to another, the instruction given by you cannot, nor ought to have effect; and the more so, as the sub-delegation of the inten-. dancy is local.”

In a certificate given by Don Gilberto Leonard, treasurer of the army, and Don Manuel Gonzalez Armirez, ministers of the royal treasury, &c. of the province of Louisiana, they certify that in pursuance of. a decree of the senior intendant-general ad interim, the senior colonel Charles Dehault Delassus, formerly commandant of the port of New-Madrid, and lieutenant governor of St Louis-of the Illinois, with the sub-delegation of the royal treasury in both situations, &c.

In the claims laid before the commissioners, and confirmed, are several which originated with Delassus after the power of granting lairds was transferred from the governor to thq inten-dant-general. This very'order of survey was. executed by the surveyor-general in 1801. Possession was delivered to Chou-teau which was retained by him during His life; and appears to have remained with his devisees since his death.

On this point the report made by the recorder and commissioners to congress under the act of the 9th' of July 1832, and the 2d of. March 1833, cannot be disregarded. They spe&k of the union of the two offices of lieutenant governor and sub-delegate, as being universally understood and admitted.

Charles Dehault Delassus, lieutenant governor of upper Louisiana, whose deposition appears to be annexed to the report of the commissioners, deposes, “that all the lieutenant, gover-. nors of upper Louisiana were, in virtue of their offices as-lieutenant governors, likewise subrdelegates.' That, the offices of lieutenant governor and sub-delegate were inseparable.” Morales, immediately after the sale of the royal lands had been ■ transferred to his intendancy, assigns as one reason for issuing his regulations, “ that the commandants, as sub-delegates of the intendancy, may be informed of what they ought to observe.”

If, as we think must be admitted, Delassus was sub-delegate as well as lieutenant governor, the- transfer of the power of granting lands belonging to the royal domain from the governor to the intendant-general, did not affect his power to give the order of survey on which the title of the petitioners depends. That order is the foundation of title, and is, according to the acts of congress and the general understanding and usage of Louisiana and Missouri, capable of being perfected into a complete title. It is property capable of being alienated, of being subjected to debts, and is as such to be held as sacred and inviolate as other property.

The power of lieutenant governor Delassus in his character of sub-delegate to make this order of survey being established, all the principles settled in the preceding cases apply to this. No objection to the claim is perceived, and we think it ought to have been declared valid.

The decree of the district court is reversed and annulled; and this court, proceeding to give such decree as the district court ought to have given, doth declare the claim of the petitioners to the tract of land in their petition mentioned tobe valid, and doth confirm their title to the same according to the boundaries thereof, as described in the survey made by Antonio Soulard, principal deputy surveyor of upper Louisiana on the 5th day of March 1801, a certificate of which appears in the record dated tire 10th day of April 1801.

This cause came on to be heard oh the transcript of the record from the district court of the United States for the district of Missouri, and was argued by counsel; on consideration whereof, this court is of opinion that the claim of the appellants is valid and ought to be confirmed. Whereupon, ,it is ordered, adjudged and decreed by this cojirt, that the decree of the said district court in this cause be, and the same is hereby reversed and annulled, and this court, proceeding to pronounce such decree as the said district court ought, to have given, doth declare the claim of the petitioners to be valid, and doth confirm their title to the tract of land in their petition mentioned, according to the boundaries thereof as described in the survey made by Antonio Soulard, principal deputy surveyor of upper Louisiana, on the 5th day of March 1801, a certificate of which appears in the record dated the 10th day of April 1801.  