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Show 102 HISTORY OF PUBLIC LAND LAW DEVELOPMENT spoken on the Soulard case which was already regarded as a key in determining the validity of the larger claims. Without the extension they would be at the heavy expense of a decree against them and an appeal from that decree to the Supreme Court. They were correct in thinking that the Peck decision in the Soulard case would be unfavorable and were counting on the Marshall-Story court to render a favorable decision on appeal. The Lucas-Peck line of decisions was based on familiarity with the language in which the original documents were written and on long experience in adjudicating such cases, whereas Marshall and Story had not as yet been introduced to the issues involved in the Missouri cases, other than in a very preliminary way and were not able to read the documents in the original.42 Benton, as attorney for Soulard, very likely drafted the petition of Chouteau. He failed, however, to convince the court, which in 1830 had to confess it was "unable to form a judgment" because of the lack of documents and, one may guess, un-familiarity with French and Spanish law. The Soulard case was held under advisement until 1836 when the claim was declared valid. Another case which Marshall had decided at the same time to hold under advisement, and which Benton represented both in 1830 and 1831, did result in a decision favorable to the claimants in the latter year and provided great encouragement to Chouteau and other large claimants.43 Marshall seems not to have been aware that a "translated complete collection of all the Spanish and French ordinances, etc., affecting the land titles" in Missouri, Arkan- 42 Chouteau and others say in their petition: "an appeal is now pending in the Supreme Court of the United States in the case of the widow and heirs of Soulard vs. the United States, the decision in which, as your petitioners believe, will establish principles which must necessarily control the district court" and compel it to reverse a line of decisions it was then following. American State Papers, Public Lands, V, 612-13. 43 30 Stat. 295 and 35 Stat. 105. sas, Louisiana, Mississippi, Alabama, and Florida had been prepared by Joseph M. White, formerly in the office of the United States Land Commissioners for Florida, and had been presented to Congress on February 11, 1829, and ordered printed. This elaborate compilation had been prepared from the records left by Spanish authorities in Louisiana and East and West Florida and from the Spanish archives in Cuba. White's report and his later New Collection of Laws, Charters and Local Ordinances of the Governments of Great Britain, France and Spain, Relating to the Concessions of Land in Their Respective Colonies Together with the Laws of Mexico and Texas on the Same Subject, published in 1839, provided the basis for much of the defense of land claims and the decisions of the courts.44 If Peck could not be removed by political pressure he could be impeached. In 1829 and 1830, the House of Representatives did impeach him for action unbecoming a judge in entering into public discussion of land cases outside the courtroom and for his arbitrary action in penalizing a critic for contempt of court. The issue is pertinent to the problem of land claims in Missouri because the Judge had declared that three former officials of the Spanish Government had been tricked to antedate a concession in the Mackay Wherry case then before him. On pressing for further evidence, he found that the Spanish officials had exceeded their authority, had antedated documents in as many as 60 concessions, and had committed intentional fraud; consequently he rejected the claim. In the Auguste Chouteau case Peck made a very detailed examination of Spanish laws as collected by White, which seemed to have been available to him but not to Marshall, and came to a reasonable decision that it likewise must be u White's book was published in two volumes in Philadelphia in 1839. It is sometimes cited as White's New Recopilacion of the Laws of Spain and the Indies and of Colonial Charters, Commissions, etc. H. Doc, 20th Cong., 2d sess., Vol. V, No. 121 (Serial No. 188). The report was also included in the American State Papers, Public Lands, V, 631-774. |