alike conclusive, that this line was finished and terminated at the last monument described, which was at the distance of forty two arpens from the river. The manner narrated in which the lower line was surveyed is not very dissimilar, and is given with equal care. It concludes, according to the translation of the claimants, "in order that the direction may not deviate," after describing the last monument set in the field, which was at the distance of forty-two arpens from the river, making the depth correspond exactly with the other side line. Both lines are ended at points clearly ascertained and marked by monuments on the land. Some reliance is placed upon the closing words of the sentence in which Andry describes his last act, in the survey on the lower line. remark was made when he closed the upper line. These words are rendered in the copy of the certificate appearing in Clarke's Land Laws as follows: "In order to keep the course;" and are evidently descriptive of an intent which had been performed. They refer to an act done; to one that was complete, and not to one that remained to be performed. The order under which he acted authorized him to fix and mark the front and depth of the tract surveyed, and there his authority ceased. These acts were performed according to law, in the presence of the judge ordinary, and of the two adjoining neighbors, to whom, as well as to Conway, it was important to preserve the evidence of the course which he had run from the river, to the depth of the tract surveyed and located. The monument of which he was speaking had been planted to keep the course, as had been all the others previously described. It was not necessary to certify the purpose for which they had been planted at the close of each description of the cypress or mulberry stake, used to designate the intent; that was left for the close, and the words apply as fully to the first monu ment on the bank of the river, as to the one which marked the depth of the last line surveyed. He was speaking of an intent which had ripened into an act. It is no more or less than it he had said, I have planted all these monuments to keep the course and mark the boundaries of the land. This is evident by the concluding portion of the certificate, which imme diately follows in these words: "And in order that all the above may ap pear, I give the following certificate." This certificate is signed by Andry, Judice, and Conway, and alleges the reasons why the adjoining neighbors did not affix their signatures, which was, that they did not "know how to sign."

The figurative plan or sketch of the operations delivered to the grantee was not laid before the commissioners who passed upon this claim under the act of 1805, nor is it among the papers submitted to me.

It is thus demonstrated, as it seems to me, that the survey was made in conformity with the twelfth article of O'Reilly's regulations; and that it terminated on each side line at the distance of forty-two arpens from the river, the bounds having been fixed, both in front and depth, in pursuance of the prayer of the petition, and in obedience to the order of Unzaga.

The binding character of the treaty stipulations, in regard to the rights of private property, is too apparent, and has been too frequently recog nised by every department of this government, to render it necessary to remark upon any of the views which have been presented to enforce and illustrate that obligation. There cannot be any difference of opinion be tween the counsel and myself on this point, after we shall have ascer

tained the nature and character of the rights acquired under the former government, which are entitled to that protection and guaranty.

In further examining the question for that purpose, it now becomes proper to consider the principal evidence of title upon which these parties rely, which is the grant issued by Galvez, on the 21st June, 1777. The argument for the claimants proceeds upon the ground, that the extent of the lands granted must be ascertained and measured by the descriptive words and sentences that precede the granting clause, aided by similar expressions to be found in the petition of Conway, and the preliminary proceedings, overlooking the fact, as it seems to me, that no one of the sweeping expressions to which they refer, gives either courses, distances, or monuments, or affords any other definite and certain rule by which to mark the limits and boundaries of the tract upon the land. The strength of the argument consists in the reliance which is placed upon the words, "all the vacant lands in the rear of the first forty arpens." These, it is insisted, in the connexion in which they are employed, are broad enough to embrace their whole claim, and cannot be interpreted to include less, without distorting their true meaning, or departing from their usual and ordinary signification. There might be some force in the reasoning, if the words selected were as comprehensive as is supposed; and if, in their application to the subject-matter in dispute, they were certain to a common intent, or more especially if there were not other words in the same instrument evidently introduced to negative the expansive construction for which they contend, by limiting and qualifying their meaning, and thus giving force and effect to the grant. Let us examine the terms of the grant, solely with reference to its limitations, and see whether it be not so guarded, notwithstanding the peculiar structure and form of the instrument, as to defy every attempt to misunderstand its true meaning and effect. It is manifest that it is based upon the procès verbal, or official certificate of survey. The correctness of this conclusion is demonstrated by the following considerations:

1. The maker certifies that he had seen the proceedings of Andry, which could only refer to the return of his doings in the survey and location.

2. He declares them to be conformable to the rules made, touching the surveying of lands and adjoining neighbors.

The form of the expression, in referring to the rules of surveying, clearly indicates that they were made previous to his coming into office; and, unquestionably, has reference to the aforesaid regulations of O'Reilly, which he found in full force when he assumed the duties of first magistrate of the province.

3. Certifying the consent of the adjoining owners, from the allegations of the certificate, of which he could have no personal knowledge, he approves of the operations.

4. The granting words are not followed by any description of the premises. The grantor evidently referred to the general designation of the tract which preceded the granting clause, and relied upon the following limitation to qualify and render explicit the whole purpose of the grant.

5. Then comes the limitation which defines and exemplifies the mean. ing and effect of the whole instrument: "In order that, as his own property, he may dispose or enjoy the same conformably to the said operations."

6. The grant refers to the foregoing decree of my predecessor," under whose administration the proceedings had been commenced, and perfected to the completion of the survey and location; and there is not a word in it affording the slightest pretence that Galvez intended to do any more than to confirm those proceedings, and give them force and effect according to the survey; and with that manifest intent he granted the lands limiting the grant to the previous operations.

But suppose it were otherwise, and the rights of these parties to the back lands reposed entirely upon the general descriptive expressions to be found in the grant or order of survey and petition; then I think the grant, upon principle and authority, so far as it relates to these lands, would be void for uncertainty. It would be impossible by any means which they afford, unaided by the survey and location, to identify the land which the title papers purport to sever from the public domain. It is necessary, in order to effect a severance, not only that the words should be sufficient to convey title, but, in the absence of any positive location, that the description should be such that those claiming under the grant can identify the land. To meet the pressure of the case in this respect, the parties in interest expand their claim to the boundaries of the province, giving up all the intermediate points of limitation.

It is a great mistake, however, to suppose that the language even of the petition, when taken in its broadest sense, will bear an interpretation to sustain any such wildly extended limits. Like all other instruments whose meaning is obscure, it must be considered as a whole in order to ascertain the intention of the maker. It clearly was not the intention of expectation of Conway that its descriptive words should mark the limits. of the grant; any such hypothesis is contradicted by the prayer of the pe tition, in which he asks that he may be put in possession of the front and depth, "setting the boundaries." The description set out in the petition was only intended as a general designation of the place where the land was situate which was to be surveyed, located, and bounded under the regu lations of law. The vague and indefinite description given was doubtless sufficient to enable the governor to determine whether it was expedient to issue the order of survey It was for that purpose alone that it became necessary to employ any descriptive words in the petition; and in some instances it will be found that no description was given. If the petition had prescribed the boundaries, then, in a practical point of view, the sur vey was unnecessary; it became a mere form, to meet the requirement of law. The order of survey, and the operations under it, completely nega tive any such assumption. The boundaries even of the front concession were not known, and could not have been given till after the survey; and it was doubtless a leading object of the proceedings to ascertain and define the extent of the front. Moreover, there is no language in the petition, when considered in its proper connexion, that will sustain the views of the claimants, or bear out the'interpretation for which they contend. The words, "all the depth which may be vacant," evidently refer back to the previous recitals. That these recitals fall far short of the boundary claimed, is most manifest. There is not an expression in the paper, when read in its proper connexion, that makes any considerable approximation to such a theory. The petition represents that the front was destitute of fences, and it being cleared out upwards of a league in depth, and the cypress being at the distance of about a league and a half, the petitioner had no right

to that growth. There is some want of clearness in regard to the nature of the right of which he was speaking; it is highly probable, however, that he referred to the permissive right, enjoyed by front proprietors, to take timber from the back lands for fences, and other needful purposes, on a plantation. This may be inferred from what follows, when he says he had "no right thereto, in consequence of your not having granted to him but the common depth of forty arpens, which is so short that he cannot reach the cypress trees. Omitting what is of no importance, then follow the words so much relied on to expand the grant to the full limits of the claim: "Therefore your petitioner prays you will grant him all the depth which may be vacant immediately after the said forty arpens." It seems to me, if we give the petition its utmost scope, it only asks for the vacant land to reach the cypress trees, leaving it to be inferred from the representation that the trees were about a league and a half distant from the front. It is difficult to appreciate the reasoning which seeks to expand this distance to nineteen miles on one of the lines, and to fourteen on the other.

That the practice of cutting timber upon the back lands for the purposes aforesaid was permitted by the Spanish authorities, is no longer a subject of dispute, though it has been substantially settled that it gave the parties no rights in the soil, which would seem to be self-evident. Even if the representation in regard to the distance of the cypress trees from the front could be relied on, the reference to them is too vague and general to afford any safe criterion upon which to rely in the decision of the main question involved in the case; and the positions assumed by the claimants, and the course of the argument on their part, seem to admit the correctness of the conclusion. The cypress trees are not referred to in the petition as a boundary, nor are they relied on as such; and yet they are spoken of as standing in the rear of the vacant depth to which the descriptive recitals relate. The recital which represents that the front had been cleared out upwards of a league needs confirmation, and cannot well be reconciled with the operations in the field, if it be admitted that the cypress constituted the principal growth, which does not appear to be denied. The surveyor found it necessary to cut a road through the woods, in order to run the course one-half that distance, rendering it apparent that the petition had been prepared without any precise knowledge of distances, or of the actual state of things on the land. No one probably would contend that the petition alone could furnish any satisfactory means by which to delineate any well-defined tract with legal certainty aud precision; and yet, when the whole proceedings are carefully examined, it will be found that there is nothing in the title papers to sustain the views of the claimants, except what appears in that memorial. There can be no doubt that Unzaga, in issuing the order to the surveyor, had reference to the recital of the petition, knowing, as undoubtedly he did, that the public interest would be protected by the direction which he gave to set and mark the boundaries; and that the ultimate rights to be acquired by the petitioner would depend upon the approval of the survey, and the final decree or grant.

The next step in the order of the proceedings was the survey and loca tion, which are admitted to have terminated at forty-two arpens in the depth. The general phraseology in regard to the place where the survey had been made, was incorporated into the preamble of the final decree, as descriptive of the proceedings upon which it was based; but the force.

and effect of the decree, or grant, was carefully restricted to the operations of Andry in the field, as they appeared in his official certificate of survey. It is clear, therefore, not only that the parties themselves did not regard the descriptive words in the petition as prescribing the boundaries of the grant, but it is equally so that the description itself is too vague and uncertain to afford the necessary means of fixing a definite and certain loca tion upon the land, and furnishes no reason whatever to support the present views of the claimants. If we depart from the survey and location, there does not appear to be any solid legal ground upon which to stand. Shall we stop when one of the side lines reaches an elder grant? Shall they be continued to the cypress trees? and if so, where is that point? Shall they be prolonged into that growth? and if so, how far? Shall we stop at the first, second, or third considerable water-course? Or, shall the tract embrace all the residue of the domains of the crown within the claimed lines? The counsel contend that there is no legal resting-place until we reach the Amite and the lake. They are understood to insist that all the intermediate suggestions, as to the depth of the legal title, between the front tract and the rear boundary of the claim, rest in extreme uncertainty; and in that I agree. And as for the boundary claimed, I find nothing to support it, either in the title papers, or in any reference which has been made to the laws, usages, and customs of the Spanish government.

Separate the grant from the survey and location upon which it is founded, and it is clear to my mind that it would fall within the principle laid down by the Supreme Court in the case of the United States vs. King et al., 3 How., 786. In that case a certificate of survey was produced; but on the evidence reported to the court, it was decided to be ante-dated and fraudulent. After having disposed of that point, Chief Justice Taney, in speaking for the court, says:

"Regarding the case in this point of view, the right of the defendant in error must stand altogether upon the instrument executed in 1795 and in 1797 by the Baron de Carondelet; and it has not the aid of any au thentic survey to ascertain and fix the limits of the land, and to determine its location. The instruments themselves contain no lines or boundaries whereby any definite and specific parcel of land was severed from the public domain; and it has been settled by repeated decisions in this court, and in cases, too, where the instrument contained clear words of grant, that if the description was vague and indefinite, as in the case before us, and there was no official survey to give it a certain location, it could cre ate no right of private property in any particular parcel of land which could be maintained in a court of justice. It was so held in the cases reported in 15 Peters, 184, 215, 275, 319; and in 16 Peters, 159, 160. After such repeated decisions upon the subject, all affirming the same doctrine, the question cannot be considered as an open one in this court. Putting aside, therefore, and rejecting the certificate of Trudeau, for the reasons before stated, the instruments in question, even if they could be construed as grants, conveyed no title to the Marquis de Maison Rouge for the land in question; and, consequently, the defendants in error can derive none from him. The land claimed was not severed from the public domain by the Spanish authorities, and set apart as private property; and, consequently, it passed to the United States by the treaty which ceded to them all the public and unappropriated lands."