Page:Hempstead's Reports.pdf/399

374   to be essential. The commandant alluded to says:—"There was no public surveyor in the district of Arkansas at that time (1798), nor afterwards, during my command, down to the year 1802; on which account these tracts were not surveyed nor platted in the ordinary manner."

This is insufficient to excuse the non-performance of the conditions, because the fact must have been as well known in 1797 as it was the year after. United States v. Kingsley, 12 Pet. 484.

The condition was not impossible, but on the contrary was reasonable and proper, and one of two things must be established by the claimants, either that it was complied with, or that the performance of it was excused by the governor-general, and also that he was competent to excuse its performance, because, as plenary as his authority might have been, he was a subordinate officer, bound to execute the will of the king, whether expressed in royal orders, regulations, or in other modes which might have been adopted. The Baron Carondelet had no dispensing power; he could not say that a survey need not be made, or that a right of private property should vest without identity to the land. But it is fruitless to inquire what he might or might not have done, since it is not pretended that the performance of the conditions were ever excused.

To say that there was no public surveyor in the district of Arkansas in 1798, amounts to nothing. There was a surveyor-general at New Orleans, who could constitute deputies and send them to any part of the province to execute surveys at the request of a grantee, and upon the payment of the usual compensation.

If Elisha Winter did not choose to invoke his aid, the governor-general could have authorized a private person to make and return the survey, which it is reasonable to infer would have been done upon application, especially as we are informed that Winter was on terms of intimacy with that functionary, and was, according to the proof, in New Orleans a greater portion of the time between 1797 and 1800.

The commandant of Arkansas post could doubtless have authorized a competent person to make and return the survey, by