History of public land law development

page 94

94 HISTORY OF PUBLIC LAND LAW DEVELOPMENT Jefferson understated the problems to be met in the process of adjudication. It soon appeared that the last Spanish governor of Upper Louisiana had not only been extraordinarily generous in making late grants of large size contrary to law and custom, but he had signed blank grants that after the termination of Spanish control were filled in for hundreds of thousands of acres. In other cases original grants which had been abandoned were hunted up and altered for submission to American officials. The basic territorial acts of March 26, 1804, and March 2, 1805, providing for the government of the Purchase, divided it into two territories-Orleans, being essentially the area of present Louisiana minus the Florida parishes, and Louisiana including everything north of the 33d degree of north latitude. In contrast to the Spanish system, the governors and legislative councils of the territories were to have "no power over the primary disposal of the soil, nor to tax the lands of the United States, nor to interfere with the claims to land. ..." The district of Louisiana was to be attached to Indiana Territory for administrative purposes. The treaty of purchase had prescribed that the inhabitants should be incorporated into the United States and admitted as soon as practicable to the rights, advantages and immunities of citizens, and should be "maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess."18 Section 14 of the Act of March 26, 1804, attempted to define their rights in property. It declared that all grants, titles or claims to land dated after October 1, 1800 (date of cession of Louisiana by Spain to France) were null and void "and of no effect in law or equity." Then, having taken away all land rights acquired between 1800 and 1803, Congress in a proviso stated that bona fide grants made according to the laws and customs of the Spanish government to actual settlers "on the lands so granted" in this interim period were not null and void; nor was any step taken by an actual settler before December 20, 1803, to obtain a grant that was in harmony with Spanish laws and customs invalid. Finally, the act stated that grants in this brief 3 years, together with other grants allowed to the wife and family, should not exceed one square mile.19 On March 2, 1805, Congress spelled out the rights to land of residents in the two territories and created the machinery of government to test and adjudicate all land claims. Persons resident in the territory October 1, 1800, who had obtained a warrant or order of survey for land they inhabited and cultivated on that day, were to have their titles confirmed as if they "had been completed" but only if the claimants were 21 years of age or the head of a family and had fulfilled the conditions of the grant. Donations up to 640 acres were to be allowed persons who were heads of families or 21 years of age who had settled on land before December 20, 1803, with permission of the proper Spanish officer and in conformity with the laws, usages, and customs of the Spanish government and who on that date actually inhabited and cultivated the land and had no other claims. For each territory a register and a recorder of land titles were to be appointed and to them every person claiming land should bring statements of the nature and extent of their claims with a plat of each tract, the grants, orders of survey, deeds, or other written evidence. Boards of Land Commissioners consisting of either the register or the recorder with two additional appointees were empowered to hear and decide all claims, to summon and examine witnesses, and to report their findings to Congress for its determination. Then followed another one of those provisos sometimes inserted into laws, regardless of whether it was repetitious or inharmonious with previous 18 Donaldson, The Public Domain, p. 96. 2 Stat. 283 ff.