United States v. Brooks

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Louisiana.

The facts are very fully set forth in the opinion of the court, to which the reader is referred.

It was argued by Mr. Crittenden (Attorney-General), for the United States, and Mr. Walker, for the defendants.

Mr. Crittenden made the following points:--

I. That the first supplementary article of the treaty does not make a grant or reservation in favor of the Grappes of four leagues of land, but the true meaning and import is simply that the Grappes shall have their right, whatever it may be, to the four leagues of land stated as being reserved to them in 1801, in the preamble; and there was, therefore, error in the refusal of the court to give the first instruction prayed for.

This, it is contended, is the true construction. The language of the second supplementary article, relating to the donation to Edwards, is very different in its terms, and imports a present grant. 'There shall be reserved to Larkin Edwards, &c., one section of land.'

II. That the recital of the reservation to the Grappes, in 1801 does not relieve the defendants from producing the primordial title on which they must rely, and the court, therefore, erred in refusing to give the second instruction prayed for, and in charging as it did on this point under the second head of the charge as given.

The law of Louisiana, borrowed from the civil law, is against the court below. The 2251st article of the Code declares that 'recognitive acts do not dispense with the exhibition of the primordial title, unless its tenor be there specially set forth.' In this case its tenor is not set forth, and the primordial title must therefore be produced. The recognitive act is no proof of the contents of the primordial, even when the latter is fully set forth, unless it also be shown that the latter is lost. 1 Evans's Pothier, §§ 742, 743, p. 443; Brooks v. Norris, 6 Rob. (La.), 181.

But had the Spanish authorities in 1801 any power to authorize and sanction the reservation? That they had no such power has been decided many times in this court, in the case of the Perdido boundary. The country embraced within the limits of Louisiana, west of the Mississippi, stretched far beyond even the Sabine, and it was not until the treaty with Spain of 1819, that the United States relinquished their claim to it, and ceded what lay west of that river to Spain. The United States claimed it from the first. In the act of 20th February, 1811 (2 Stat. at L., 641), to authorize the people of the Territory of Orleans to form a state government, the Sabine is declared to be the western boundary of the new state. Besides, it is to be remembered, that the fourteenth section of the act of 26th March, 1804 (2 Stat. at L., 287), declares that all grants, and every act and proceeding subsequent to the treaty of St. Ildefonso, of whatsoever nature, towards the obtaining of any grant, title, or claim to land in Louisiana, under whatsoever authority transacted or presented, shall be null and void.

In addition to all that, it may here be mentioned that the Caddoes themselves never claimed Rush Island, or ever used it in any way. It was occupied by whites, and was never intended by the Caddoes to be included in the treaty or given to the Grappes.

III. That by the law of Spain the Caddo Indians had no primitive title to any land, and had no power to alienate without consent of the Spanish authorities; and these authorities at Natchitoches had no right to sanction the donation mentioned in the preamble and supplementary article. Mitchel et al. v. The United States, 9 Pet., 714. The Spanish officers at Natchitoches had no control over the Caddoes, the territory they inhabited being within the jurisdiction of the post of Nacogdoches. See 2 Martin's History of Louisiana, 202, 203, 261, 262; see also House Doc. No. 49, 1st Session, 24th Congress.

IV. That there was error in the court refusing to give the fourth instruction prayed for, because the matters therein mentioned were part of the history and public archives of the country, on which it was the duty of the court to inform the jury. See the state papers above referred to.

V. That the court erred in refusing to give the fifth instruction prayed for, and in charging as in the third point of the charge given.

VI. That if there is no title in Brooks, there can be none in the purchasers under him.

VII. That the court erred in not admitting as evidence in the cause the letter of General Cass to Mr. Garland, of the 17th of March, 1836, and the memorial of the Caddoes to the Senate of the United States, of the 19th of September, 1837, and the report of the House and depositions therein, and in the case of Brooks v. Norris; and in admitting copies of the affidavits of David, Trichel, and D'Ortlont.

Mr. Walker's points were as follows:--

1. Defendants' title rests upon a grant by treaty to the Grappes, a bona fide sale by them to Jehiel Brooks, and a bona fide sale of part of the land by him to the other defendants. The treaty of 1st July, 1835, being ratified and confirmed by the President and Senate, becomes the supreme law, and cannot be set aside by the courts, on any ground whatever, not even upon an allegation of fraud. Const. U.S., art. 6, § 2; Story on Const., 684, 686; Foster & Elam v. Neilson, 2 Pet., 254, 306, 307; 6 Id., 711, 738; 3 Peters Dig., 654, 655, Nos. 1, 4, 6, 8, 11, and 12; 1 Kent, 286, 287; 6 Cranch, 136, 139.

2. The boundaries of the Indian lands ceded to the United States by the treaty are fixed therein, and cannot now be disputed by either party thereto, nor can they be altered but by the consent of both parties; the right of the Indians to the lands ceded is admitted by the treaty, and by the general policy of the government in treating with them. Story on Const., 379 et seq., §§ 532, 535; 12 Pet., 516, 725; 14 Id., 13, 14.

3. The boundaries cannot be varied by parol proof, because,--

1st. The United States are parties to the treaty, which is in writing, and cannot be varied or contradicted by them. 2 Peters Dig., 234 et seq., Nos. 898, 903, 904, 909, 921, 922, 933.

2d. The treaty is part of the supreme law of the land, and cannot be varied or contradicted by parol proof. 2 Peters Dig., 153, No. 35; 161, No. 128; 172, No. 238.

4. The treaty, by its terms, declared that the Caddo Indians had previously donated the lands in dispute to the Grappes, the defendants' vendors, and confirmed that donation to them; which treaty having the force of a law, it is equal in dignity and effect to a complete grant by the United States, and they cannot go beyond that grant. 9 Pet., 746; Johnson v. McIntosh, 8 Wheat., 571; 6 Pet., 342; 2 Hows., 344.

5. The motives that induced the President and Senate to ratify the treaty containing this grant, or the reasons, if any, that should have influenced them to reject that part of the treaty, are not proper subjects of inquiry in any court, but all such acts must be received as conclusive on all subjects within the scope of their power. 6 Cranch, 129, 131; Story on Const., 567.

6. Congress cannot, by legislation in any form, divest a citizen of rights acquired under a treaty, or previous act of Congress. 6 Cranch, 132, 133, 135.

7. Brooks is a bon a fide purchaser from the Grappes, who acquired a good legal title under the treaty, which title cannot be questioned by the grantors of his vendors. 6 Cranch, 133, 134; Story on Const., 567.

8. Fraud cannot be charged on Brooks, as United States commissioner, in negotiating the treaty, without charing the same on the President and Senate, for he was their agent, and they made his act their own by their confirmation of the treaty. Story on Const., 557.

9. Congress have not authorized the inquiry of fraud to be made, but expunged it from the House resolutions, 38. Resolution of Congress, 30th August, 1842 (5 Stat. at L., 584.)

10. The fact of Brooks having been commissioner to negotiate the treaty did not disqualify him from purchasing long afterwards, and when his functions had ceased, land reserved in said treaty, and such purchase is no evidence of fraud in negotiating the treaty. 2 Peters Dig., 357; 3 Wash. C. C., 556 et seq.

11. The question of fraud was, however, submitted by the court to the jury, and decided in favor of the defendants, as appears by the record.

12. Report of commissioners, Doc. 1035, and record of Brooks v. Norris, not admissible. 1st. The depositions not taken in any suit nor in any issue joined before any judicial tribunal, nor any other tribunal having power to try or decide title to property. 1 Phil. Ev., 14 (and note 42), 378, 394, and 395; Const. U.S., art. 1, § 1; art. 2, § 1; art. 3, §§ 1 and 2; 2 Peters Dig., 164, No. 153. 2d. Consent to read the testimony in Brooks v. Norris does not bind the parties to admit the testimony in this suit, which is between different parties, both plaintiff and defendants. 10 Mart. (La.), 91, 92; 6 Pet., 340, 341; 2 Peters Dig., 229, No. 837; Id., 230, No. 850.

Mr. Justice WAYNE delivered the opinion of the court.