March 14th 1807
I beg leave to call your attention to the act passed, during the last Session, “respecting claims to lands in the Territories of Orleans & Louisiana.”
Two laws had already been enacted on that subject Vizt. on 2d March 1805 (7th Vol. pages 288 & following) and on 21 April 1806 (1st Sess. 9th Cong. page 113 & fol.). Those several laws exclusively of some detached provisions, have two general objects—1st The recognition of certain descriptions of claims— 2dly the organisation of the several boards of commissioners appointed to investigate those claims.
The claims heretofore recognised consisted either of settlement rights considered by the law as a species of donation which would include the greater part of ordinary incomplete Spanish grants; or of certain descriptions of incomplete French or Spanish grants.
The settlement rights are embraced by the 2d Section of the Act of 2d March 1805 and by the 2d Section of the act of last Session, with a constructive explanation contained in the 1st Section of the Act of 21 April 1806
The incomplete French or Spanish grants recognised as such are all embraced by the first Section of the Act of 2d March 1805; observing only that the exception in relation to grants made to minors was first modified by the 2d Section of the Act of 21 April 1806, & then altogether repealed by the 1st Section of the Act of last Session.
All the other Sections of the several acts relate almost exclusively to the mode of filing claims, & to the organisation, powers & duties of the boards. By the former acts their decisions were to be submitted to Congress for the final determination of that body. By the Act of last Session their decision on claims for tracts not exceeding a league square is made final. But in the same section (the 4th) which gives that authority to the commissioners, words have been introduced which give rise to an important question.
It is by that section enacted that the Commissioners shall have full powers to decide “according to the “laws & established usages and customs of the French and “Spanish governments” upon all claims &c.—And the question is whether by these expressions it be only meant that the commissioners shall, in investigating the merits of claims alledged to be within the description recognised by Congress, decide according to the Spanish Laws & usages? or whether that Sentence must be construed as recognising those claims not embraced or recognised by any former law of Congress, but which would have been confirmed according to the Spanish Laws & usages had Spain continued in possession of the country.
The two great classes (besides some Subordinate ones) of claims which are not recognised by the laws of Congress, but which would have been confirmed under the Spanish government according to its laws & usages, are, 1st the grants made subsequent to the treaty of San Idelphonso in 1800 & prior to the cession of Louisiana to the United States— 2dly. the incomplete grants of various descriptions for lands on which no settlement had been made in December 1803. The question therefore is whether it be intended, by those words inserted in the manner in which they are, to confirm those two classes of claims heretofore excluded.
The opinion of the Attorney general may be taken on that subject & transmitted as an instruction to the Commissioners under the 8th Section of the Act of 21 April 1806. But it remains discretionary with the Executive to send instructions on that subject or not as may be thought proper. And the first question on which the decision of the President seems necessary is whether there be any reasons of policy arising from the situation of the territory & from the present temper of the inhabitants, which may induce him to suffer the Commissioners to give the construction they may think proper to that part of the law without binding them by any instructions.
I will only add that I think it probable that the claims above mentioned will be confirmed if no instructions are given. What might on due consideration be held the true construction of the law by the Attorney general I cannot pretend to say. If it be decided to give no instructions on that point, the reason to be assigned must be that the determination of the Commissioners being now made final invests them with a judicial character.
I have the honor to be with great respect & sincere attachment Dear Sir Your obed. Servt.
DLC: Papers of Thomas Jefferson.