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ADAM HAM, PLAINTIFF IN ERROR, v. THE STATE OF MISSOURI.

December 1, 1855

ADAM HAM, PLAINTIFF IN ERROR,
v.
THE STATE OF MISSOURI.



THIS case was brought up from the supreme court of the State of Missouri, by a writ of error issued under the 25th section of the judiciary act. It is fully stated in the opinion of the court. It was argued by Mr. Geyer, for the plaintiff in error, no counsel appearing for the defendant.

The opinion of the court was delivered by: Mr. Justice Daniel delivered the opinion of the court.

Mr. Geyer made the following points:––

1. The reservation by the act of March 3, 1811, is something more than 'a direction' to the officers to refrain from selling the land claimed. It severed the land embraced by the claim from the public domain, and appropriated it to the satisfaction of the claim in the event of confirmation; being so set apart and appropriated, it was 'disposed of,' and therefore not granted nor promised to be granted by the act of March 6, 1820.

2. The State did not acquire a complete title to the 16th section by force of the compact, even where the land had not been sold, reserved, appropriated, or otherwise disposed of; in such case it was reserved and appropriated to the use of schools; 'but the title to the land being still in the United States, could be passed by the government to any person for any consideration,' and in this case was passed by the confirmatory act of May 24, 1828, and the patent deed of the United States of March 25, 1839.

The propositions offered to the convention having been accepted, became obligatory upon the United States; 'the compact was complete between the sovereignties,' and the United States became bound to grant and convey the lands embraced by the first proposition, but there is no present conveyance, no word of present grant, and, therefore, no complete title vested by the terms of the compact.

The engagement on the part of the United States is executory, precisely as is the obligation to perfect inchoate titles, or to make a final decision thereon, and hold the lands reserved by law to abide the decision. No time is appointed for the fulfilment of the engagement in either case, and in both the title remains in the United States, subject to the legislative power of congress.

3. The second proviso in the confirmatory act, (repeated in the patent,) to which some importance was attached by the supreme court of Missouri in this case, has no effect whatever upon the title of either party. The act and patent, if they have any effect whatever, pass all the title which the United States had or could convey at the date, and no form of conveyance could accomplish more. Neither the confirmatory act nor the patent would prejudice the rights of third persons, nor any title theretofore derived from the United States, by purchase or donation, if the proviso had been omitted; but while the rights and titles of others are not prejudiced or impaired, they are not enlarged or improved. The executory engagement of the 6th of March, 1820, is not executed or converted into a complete title of that date by the saving, in the confirmatory act and patent. If the legal title was not vested in the State by the compact, it remained in the United States until it was vested in the claimants by the confirmatory act and patent, and the grantees are not liable to be indicted and punished for entering upon the land granted, by reason of the proviso.

Upon a writ of error to the supreme court of the State, under the authority of the 25th section of the judiciary act.

The proceedings now under review were founded upon an indictment in the circuit court of the county of St. Francis, against the plaintiff in error, for having committed waste and trespass on the sixteenth section of lands situated in congressional township number thirty-four, range seven east, as being school lands belonging to the inhabitants of the township aforesaid.

Upon this indictment the plaintiff was convicted, and condemned to pay a fine assessed by the jury, of four hundred dollars, together with the costs of the prosecution. From the judgment of the circuit court, the plaintiff in error having taken an appeal to the supreme court of Missouri, by the latter tribunal that judgment was in all things affirmed; the same plaintiff now seeks its reversal here, in virtue of several acts of congress alleged to be applicable to this case.

Upon the trial in the circuit court, the following facts were either established in proof or admitted by the parties:––

1. A joint petition on the part of Jean Batiste Vall e, and the heirs of Fran ois Vall e, Jean Batiste Pratte, and St. Geunne Beauvais, presented on the 15th of October, 1800, to Delassus, the lieutenant-governor of upper Louisiana, praying for a grant of two leagues square of land on the River St. Fran ois, including the mine, known by the name of Mine a la Motte, and the lands adjacent.

2. An acknowledgment by the lieutenant-governor, dated January 22, 1801, of his want of power to grant a concession of the extent prayed for, and the fact of his having transmitted the petition to the intendant-general, with the expression of an opinion favorable to the grant, and to the character of the applicants.

3. An order by the intendant-general, that the documents presented in behalf of the petitioners should be translated into the Castilian language, ...


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