
43 U.S. 344 (____)
2 How. 344
PIERRE CHOUTEAU, SEN., PLAINTIFF IN ERROR,
v.
WILLIAM ECKHART.
Supreme Court of United States.

*354 Lawless and Bogg, for the plaintiff in error.
Gamble, for the defendant in error.
*372 Mr. Justice CATRON delivered the opinion of the court.
For the statement of the facts the report is referred to.
It is insisted this court has no jurisdiction to look into the plaintiff's concession of 1800; or to pass on it, under the 25th section of the Judiciary act  and the case in 9 Peters, 244, of New Orleans v. De Armis, is referred to as settling the question. If the plaintiff relied alone on a complete Spanish title, then the argument would be sound, but each party claims by force of an act of Congress; the plaintiff under that of 1836, and the defendant under the act of 1812, confirming to the inhabitants of St. Charles the village commons; and which is fortified by another act for the same purpose, of 1831. The decision of the Supreme Court of Missouri was opposed to the title set up under the act of 1836 by the plaintiff. From this decision he prosecuted a writ of error to this court.
Construction is called for on the acts on which both titles are founded; and as no occasion can arise in any instance involving construction, aside from a contest, making a case; the facts giving rise to it must be ascertained before the construction can be applied. To hold otherwise, would render the 25th section a dead letter in a majority of instances. The same question arose in the case of Pollard's heirs v. Kibbie, 14 Peters, 254, and again in that of The City of Mobile v. Eslava, 16 Peters, 234, both involving property at the city of Mobile; the first is not distinguishable from the present in its material features, so far as the question of jurisdiction is involved; and the latter covers the whole ground before us. In the cases cited, as in this, the record set out the titles on each side, together with the facts and charge of the court; from which it appeared the decision of the Supreme Court of Alabama was opposed to the plaintiff's title, the judgment below having been affirmed. This court did not then doubt its powers to look behind the act of Congress, into the Spanish concession of Pollard, for the purposes of construing the act, and comparing it with that under which the defendant claimed: not with the intention of setting up the concession as an antecedent title to the act, that would support an action, but for the purposes of the construction and application of the acts on which the controversy depends. And the same rules apply here.
The plaintiff's title is prima facie a good legal title, and will support an ejectment on the act of 1836, standing alone, if the land can be identified, as confirmed, without resort to the patent. This court held, in Strother v. Lucas, 12 Peters, 454: "That a grant may be *373 made by a law as well as a patent pursuant to a law, is undoubted, and a confirmation by a law is as fully, to all intents and purposes, a grant, as if it contained, in terms, a grant de novo." And as, according to the laws of Missouri, an action of ejectment could be prosecuted on Chouteau's title, by force of the confirmation, the construction of the acts of Congress, under which the respective parties claim, will decide the controversy.
The character and nature of the village right, in this country, is somewhat peculiar. The inhabitants of Upper Louisiana resided in villages, almost exclusively, and cultivated common fields, enclosed by only one fence; each person who cultivated the soil having assigned to him, by the syndic of the town, a certain portion of land to cultivate. In this manner the chief tillage of the soil was carried on; the other parts of the country being in the forest state.
The villages also required commons for pasturage for their horned cattle and horses, and for fuel and timber; this part not being enclosed. The quantity included in the field, for pasturage, timber and wood, was regulated by the nature of the soil and timber, and accommodated to the wants of the inhabitants, and conceded at the discretion of the government; usually to very liberal extent.
As the principal support of the population was derived from agriculture and pasturage, the village commons were deemed of primary importance by the people and government, and as a common title more favoured than individual titles in cases of conflict.
In this situation the United States found the country when they came into possession of it, in March, 1804, as the successor of France; or rather Spain, in virtue of the treaty of cession. So great has been the change by the introduction of a population with different habits, and modes of agriculture, that it is difficult to estimate at this day the former importance of the village common to the French inhabitants: It was the basis on which their society was formed to so material an extent, that the early acts of Congress could not be well understood, without a reference to this important circumstances; and especially not the sweeping act of 1812.
The lieutenant-governor of Upper Louisiana, (usually the military commandant,) made concessions for lands founded on such considerations as to him seemed just, and according to the policy of the province; ordered it to be surveyed by the public surveyor, who put the interested party into possession, pursuant to the lieutenant-governor's order, and delivered a plat of the survey to the party, in *374 order that he might obtain a title in form from the general intendency at New Orleans; to which tribunal alone appertained, by royal order, the distributing and granting all classes of lands of the royal domain. The intendent-general had the power to adjudge on the equity of the claim, and to exercise the sovereign authority, by making the grant, as the king's deputy.
After the country changed owners, this government had imposed on it, as the successor of Spain, the duties previously performed by the general intendency, of perfecting titles to concessions made by the lieutenant-governors of St. Louis, Illinois.
Shortly after the United States came into possession, a tribunal was instituted consisting of a board of commissioners to investigate claims of this description according to the laws and usages of Spain, as they existed among the French population in Upper Louisiana, and to report to Congress, such as were by the tribunal deemed well-founded, just, and equitable, and that ought to have been confirmed by the general intendency, had no change of government taken place; and such as ought not to have been confirmed: On these reports coming before Congress, it acted directly by statute, on such titles as were by the legislature considered well-founded and just claims. In all such instances it acted as the successor of the general intendency, and had the same discretion to confirm; and the sovereign power to perfect the incipient right; or to reject it, that the intendent-general had: Each exercising sovereign power, in regard to the claim, with full authority to award, or to refuse, a perfect title.
As the board of commissioners had no capacity to grant, but only to ascertain facts, and report their opinions; and their powers to examine, not extending to every description of claim, Congress acted in some instances independent of any recommendation: necessarily in cases where the board had no right to interfere.
Chouteau's claim had been presented to the board early in 1809: In July, 1810, the board declared the opinion that this claim ought not to be confirmed; and no action was had on it by Congress on the return of the report of 1810.
In 1812, Congress confirmed the village claims as follows:
"That the rights, titles, and claims to town or village lots, out-lots, common field lots, and commons, in, adjoining, and belonging to the several towns or villages of Portage de Sioux, St. Charles, St. Louis, &c., which lots have been inhabited, cultivated, or possessed prior to the 20th day of December, 1803, shall be, and the same are *375 hereby confirmed to the inhabitants of the respective towns or villages aforesaid, according to their several rights or right in common thereto."
A new board was organized according to an act of 1832, with powers to re-examine the claims (with others) deemed unworthy of confirmation by the former board. The new board was of a different opinion from the former in regard to Chouteau's claim, and in November, 1833, recommended it for confirmation, according to his concession: and it was confirmed by the act of the 4th of July, 1836; corresponding to a recent survey, made in conformity to the concession. The whole of the claim is included in the village common of St. Charles, as it existed on the 20th day of December, 1803; and under which the defendant protected his possession, as an outstanding title. The State Circuit Court in Missouri held the village right the better, and so charged the jury; which opinion was sustained in the Supreme Court of that state, on their former decisions: especially in the cases of Byrd v. Montgomery, 6 Mo. Rep. 514, and Mackay v. Dillon, 7 Mo. Rep. 10. The last involved a contest in which title was claimed by one party under the St. Louis common.
These cases maintain in substance, that such inchoate claims (as that of Chouteau was in 1812, when the community of St. Charles took its title, previously also inchoate) were not changed in their character, by the treaty by which Louisiana was acquired; that the treaty imposed on this government only a political obligation to perfect them: that this obligation, sacred as it may be, in any instance, cannot be enforced by any action of the judicial tribunals: and that the legislation of Congress from 1804, to the present time, has proceeded upon this construction of the treaty, as is manifested by the modes adopted to investigate the claims through boards of commissioners, and then acting on them by legislation. This court held likewise, in the United States v. Wiggins, 14 Peters, 350.
We think this reasoning correct, and necessarily following the nature of the claim as above set forth; it not having been perfected by the general intendency before the change of governments.
2. That court in substance also held, in the cases cited, that the federal government, being unable to confirm the same land to two adverse claimants, must then, to some extent, determine between the conflicting titles. Each claimant depends upon the justice or comity of the present government; and when the government exercises *376 its powers and confirms the land to one, it must necessarily be considered in a court of law the paramount and better title.
We think this position also sound, and that it is conclusive against the validity of the plaintiff's title; and therefore order the judgment of the Supreme Court of Missouri to be affirmed.

ORDER.
This cause came on to be heard on the transcript of the record from the Supreme Court of the state of Missouri, and was argued by counsel. On consideration whereof, It is now here ordered and adjudged by this court, that the judgment of the said Supreme Court of the state of Missouri, in this cause be, and the same is hereby affirmed with costs.
