I concur in affirming the judgment on the main point in the cause.
TompkíNs, J., dissenting.This is an action of ejectment, prosecuted in the court of common pleas, by the Board, &c., against John-Trotter. Judgment was there given for the plaintiffs, and to reverse it, Trotter prosecutes this writ of error.
It appears from the evidence in the bill of exceptions, that most of the jurors were residents' of the city of St. Louis, and Trotter having objected to them on that account, his objection was overruled, and that he excepted to the decision of the court.
The plaintiffs offered in evidence a transcript of the record of the *86county court of St. Louis county, containing an order of that court made in November, 1809, incorporating the town of St. Louis, with certain limits therein mentioned. To the admission of this evidence the defendant objected, and his objections being overruled, excepted.
The plaintiffs then offered in evidence a-plat and survey entitled a plat and description of the survey of the out-boundary lines of the town, now city of St. Louis, as it stood incorporated on the 13th June in the year 1812, including all the o'ut-lots, common-field lots of the common field of St. Louis, and commons thereto belonging, made in pursuance of the act of Congress of 13th June, 1812, entitled an act making further provision for settling claims to land in the Territory of Missouri.
The defendant objected to the admission of this document in evidence ; his objection was overruled, and he excepted, and it was agreed that this plat too might be read in evidence, being too large to be entered upon the bill of exceptions.
The plaintiff then gave in evidence a certified copy of certain instructions of the Commissioner of the General Land Office, of which a copy follows :
“GENERAL Land Office, ) January \hth, 1839. $
Sir :
I have received your report of the 19th September last, with the accompanying papers, in relation to tiie claims of the school commissioners to certain lands, under the acts of June, 1812, (Land Laws, p. 620,) and 26 May, 1824, (do. p. 884) in the city of St. Louis, for the support of schools.
The application in behalf of the School Commissioners is, that I will instruct the Surveyor General of Missouri, to designate and set apart for the support of schools in the town of St. Louis, all the vacant ground lying between the first line’of the common field of the town of St. Louis, and the claims of Chouteau, Eglise, Yosti, Soulard, CIamor_ gan, and Third street; also any vacant land lying between the survey of Clamorgan and Cherry street south, extending from Cherry street south to the river, if it shall appear by the record of this office, and the records of the Recorder of Land Titles, that said grounds were vacant on the 13th June, 1812, provided the said grounds thus assigned do not exceed one-twentieth of the whole land thus included in the general survey of the town.
This ground is represented in green and yellow on the diagram B, accompanying your letter of 22d December, 1837, to the President and *87Directors of the Board of School Commissioners for the city of St. Louis, and also on the diagram D and F, transmitted with your report of the 19th of September last.
It appears that there was a military occupancy by the former government on a part of the ground (represented by a yellow shade on diagram B,) and that the tract claimed by the Commissioners is covered by the New Madrid location, (Cert 184,) in the name of Henry Pe-roux, under Francis Hamlin.
The position of the land in question on which there was a military occupancy, is not reserved for military purposes, as appears by the communication from the War Department, copies of which were transcribed to you on the 18th day of July last.
On a .careful examination of this case, I am of. opinion that the act of 13th June, 1812, has reference to the corporate limits of St. Louis, as they existed at the date of that act j the same having been established by a.decree of the court of common pleas of the district of St. Louis, in 1809, and which are as presented on your diagram D by the lines al l m, m n, and thence up the river to a.
The tract in question, in the opinion of this office, not being the land the sale of which is authorized by law, Peroux’s claim to it must be regarded as invalid, under the second section of the said act of 26th of May, 1824, making it the duty of the Surveyor General, within whose district such lots lie, to proceed under the instructions of the Commissioner of the General Land Office, to survey, designate, and set apart to the towns and villages mentioned in the act, so many of the vacant town or village lots, out-lots, and common field lots for the support of schools in the said towns and villages, as the President of the United States shall not before that time have reserved for military purposes ; ‘£not exceeding,55 however, one-twentieth part of the whole lands included in such town or village, &c. ' You are instructed to survey, designate and set apart for the support of schools in St. Louis, the portion of land now applied for, and return to this office an approved diagram of the same.55 ,
This letter purports to be signed by the Commissioner of the General Land Office, and addressed to the Surveyor General of Illinois and Missouri, at St. Louis.
The plaintiff then gave in evidence a certain diagram headed B, on which the space between Cherry street and Jaques Glamorgan, running from the Mississippi river, to the line of Third street, produced is colored in blue ink, and the space immediately west therefrom is in green and southwardly in yellow; then follows the diagram.
*88The plaintiff then gave in evidence the plat and survey purporting to be the designation and setting apart of a lot or piece of ground for the support of schools, which is as follows, &c.
A witness then produced by the plaintiff, proved that the land sued for was within the limits designated by the Surveyor General, and that the defendant at the time of the commencement of this suit resided on the land sued for. The plaintiff then closed his evidence.
The defendant then gave in evidence several documents. But as I have not been able after a careful attention both to the oral and written argument, to perceive the relevancy of that evidence, I shall pass it without further notice at this time. But if I find it shall become necessary, I may hereafter detail so much thereof as may seem necessary to illustrate what I may say in this opinion, observing only, that the defendant claims by virtue of a location made under a certificate, dated 30th November, 1815, issued by Frederick Bates, then Recorder of Land Titles, stating that in conformity to the provisions of the act of Congress of the 17th February, 1S15, tbe said Henry Peroux, or bis legal representatives, is entitled to locate any quantity of land not exceeding one hundred and sixty acres, on any of the public lands of the Territory of Missouri, the sale of which Í3 authorized by law. This location was made on the 7th day of April, 1817.
The defendant then examined several witnesses, the object of whose testimony appeared to be to prove what were the out-boundary lines of St. Louis, on the 13th day of June, 1812, and also the meaning of the words lot, and out-lot, as used in this act of 13th June, 1812, under which the plaintiffs claim, and the extent of the town in the year one thousand eight hundred and four, at the time of the change of government. Th.e town of St. Louis had then only three streets parallel with the Mississippi river river, of which the western was called Barn street, from the fact that the barns of the village were generally built along on the west side of that street. And it was also in evidence, that there was a considerable vacant space west of the said Third street, lying betwixt it and the common field fence, which was built along on the east ends of the common field lots.
The testimony being closed, the plaintiffs prayed the following instructions, to-wit:
1. The special survey given in evidence by the plaintiffs, purporting to he a survey made in pursuance to the act of Congress of the 13th June 1812, is prima facie evidence of the out-houndary lines of the town of St. Louis, surveyed so as to include the out-lots, common field lots, and commons thereto belonging.
*892. If the jury find from the evidence that the lot or parcel of ground designated by the survey numbered 3198, given in evidence in this case, is within the out-boundary lines of the town of St. Louis, so as to include the out-lots, common field lots, and commons thereto belonging, and before the commencement of this suit the Surveyor of Public Lands for Illinois and Missouri, under the instructions of the Commissioner of the General Land Office, did survey, designate and set apart to the said town, the said lot for the support of schools therein, then the plaintiff has shown a sufficient title to said lot.
To the giving of which the defendant objected, but the court gave them, to which action of the court, the defendant by his counsel excepted.
The defendant then prayed the court to give the jury sixteen instructions, of which I shall notice these following only, believing the others to be irrelevant or mere repetitions of such as I shall take occasion to observe on, for I do not wish to embarrass the case either with useless words or useless matter:
2. If the jury believe from the evidence that the land sued for in this action, was not, nor any part thereof, either a town lot or a village lot, out-lot, or common field lot, on the twentieth day of December, one thousand eight hundred and three, they are bound to find for the defendant.
5. That the act of Congress of 13th June, 1812, entitled an act making further provision for settling claims to land in the Territory of Missouri, does not reserve for the use of schools in the towns and villages therein mentioned, any land which had not been made a town or village lot, out-lot, or common field lot, previously, by the proper authority.
7. That the location under the New Madrid certificate, so called, in favor of Henry Peroux, or his legal representatives, given in evidence in this case, is a better title to the land in question, than that shown by the plaintiffs, if the jury believe from the evidence that the said land is embraced in such location, and that it was not on the 13th of June, 1812, or before, either a town or village lot, out-lot or common field lot of St* Louis.
8. If the jury believe from the evidence that the land in question, before and on the 13th day of June, 1812, was a vacant space, and not embraced within the streets of St. Louis, nor included among the regular lots of the village, and that it had never been a common field lot, then the said act of Congress did not reserve it for the support of schools.
*9010. That the land in question was not reserved for the use of schools by the said act of Congress of 13th June, 1812, although a vacant space lying within the limits of St. Louis, as incorporated by the court of common pleas, unless it were a town or village lot, out-lot, or common field lot, previously designated as such.
13, 14, 15. That the plaintiffs are not entitled to recover in this action, because the acts of Congress of 13th June, 1812, and of January, 1831, and the act of the Legislature of Missouri, incorporating the plaintiffs, have conferred no title on them.
These instructions were refused, and the defendant excepted. The verdict of the jury being -found against the defendant, he moved for a new trial, for all the common place reasons, assigning also some particular reasons; as, that some of the jury were inhabitants of the old town of St. Louis, and others within the limits of the streets surveyed and marked out since the date of the act of 13th June, 1812, and that the act of the Missouri Legislature of 1832, p. 37, incorporating the plaintiffs below, defendant in error here, diverts the trust fund, and is therefore unconstitutional. I pass the point arising out of these three instructions, of which I have given a summary, without noticing them further.
If indeed the plaintiff in error be, as is contended, a mere trespasser, having acquired from the United States, under whom he claims, no color of title, then the selection and designation of lots for the support of schools in St. Louis, by the Surveyor General, under the direction of the Commissioner of the General Land Office, however inconsistently it may have been made with the letter, language, and spirit of the act of Congiess of 13th June, 1812, cannot be invalidated by any act of this plaintiff in error. Hunter vs. Hemphill, 6 Mo. Rep. p. 106. In this case Hunter claimed the disputed land, under a certificate of purchase made to him by the Receiver of the Land Office at Palmyra. Hemphill, the defendant in the action, offered to prove that the land had sot been advertised for sale. The court decided that the defendant had no right to question the regularity of the sale.
The plaintiff in error, as has been shown, claims the land in controversy, by virtue of a location made under the authority of a certificate issued by the Recorder of land titles, dated November 30th, 1815, stating that in conformity to the act of Congress of 17th January, 1815, Henry Peroux, or his legal representatives, is entitled to locate any quantity of land not exceeding one hundred and sixty acres, on any of the public lands in the Territory ef Missouri, the sale of which is authorized by law. By the act of 3d March, 1811, Congress had au*91thorized the President of the United States to direct so much of the public lands in the Territory of Louisiana to be surveyed and sold, as he might think proper ; and by the act of 4th June, 1812, this Territory of Louisiana became the Territory of Missouri. The land then had been authorized to be sold, and the locution on it was made on the 7th of April, 1817, more than twenty years before the same was designated and set apart for the support of schools by the Surveyor General, under the direction of the Commissioner of the General Land Office. It becomes then the duty of the defendant in error, to show that the land in controversy was either a town or village lot, out-lot, or common field lot, not rightfully owned or claimed by any privaté individual, for none other is reserved for the support of schools, by the 2d section of the act of 13th June, 1812.
In order to understand well the provisions of this second section, it is necessary to advert as well to the first section as to the title of the act. The act is entitled, <{ an act making further provisions for settling the claims to land in the Territory of Missouri. By this act Frederick Bates, late Recorder of land titles, had succeeded to all the powers and duties of the board of commissioners established by the act of 2d March, 1805, and through eight long sections, Congress steadily pursues their object, pointing out the duties of the Recorder in every case that could be anticipated.
The material part of the first section is as follows: “ Be it enactedi Sec., that the rights, titles and claims, to town or village lots, out-lots, or common field lots, in, adjoining, and belonging to the several towns or villages of Portage des Sioux, St. Charles, St. Louis, &c., which have been inhabited, -cultivated or possessed prior to the twentieth day of December, one thousand eight hundred and three, shall be and the same are hereby confirmed to the inhabitants of the respective towns, or villages aforesaid, according to their several right or rights in common thereto, Provided, See.” The latter part of the section directs the surveying and marking of the out-boundary lines of the severa towns or villages by the principal deputy surveyor, so as to include the out-lots, common field lots, and commons thereto respectively- belonging. The second section provides that all town or village lots, out lots, or common field lots, and commons -included in the general survey, (above directed to be made,) which are not rightfully owned, or claimed by any private individuals, or held as commons belonging to such towns or villages, “ that the President of-the United-States may not think proper to reserve for military purposes, shall be and the same are hereby reserved for the support of schools, in the respective towns or *92villages aforesaid: Provided, that the whole quantity of land contained in the lots reserved for the support of schools in any one town or village, shall not exceed one-twentieth part of the whole lands included in'the general survey of such town or village.”
Nothing is given here but town or village lots, out-lots or common field lots; and to prevent too loose a construction of the granting part of the act, it is expressly provided, that the land contained in the lot’s reserved for the support of schools, in any one town or village, shall not exceed one-twentieth part of the whole lands included in the general survey of such town or village. Here the word land is twice used in contradistinction to the word lot, in the short space of three lines, as if to declare in so many words the belief of Congress that there might be included in this general survey Of these towns or villages, as well as land not divided into lots, as lots already divided or marked out at the passage of the act, to wit: prior to the 20th day of December, 1803, since which time Congress did not recognize any authority in Missouri Territory to lay off lots in these towns or villages. If, then, the land contained in the lots not rightfully owned or claimed by any private individuals, should exceed one-twentieth part of the whole lands included in the general survey of such town or village, then only could so many lots be'reserved, as amounted to one-twentieth part of the whole lands. On the contrary, if the land contained in all the lots not rightfully claimed, amounted to less than one-twentieth part of the whole lands included in the general survey, it is absurd to say that any other power than Congress can give the deficiency, and-it is still more absurd to say that Congress intended to give what their language does not import. Their officer may give, and if he give nothing but their property, his act is valid, till they choose to annul it; but if he give what has been appropriated by another, his act is void. If, then, there be not lots, such as are directed to be reserved for the support of schools, in the second section, not rightfully owned or claimed by any private individuals, then Congress neither gave, nor intended to give any thing for the support of schools, in the town or village where none such were found. Had Congress intended to give one-twentieth part of the land contained in the general survey, the proper terms to express their meaning were at hand, and it could have been expressed in much fewer words. But this general survey was directed to be so made, as to include the out-lots, common field lots, and commons thereto belonging. If, then, these out-lots had no existence other than as land, no person could know when the survey did include them. It has been twice solemnly decided by this court, that an inhabitant of one of these
*93villages, to get a lot under the 1st section, must prove the existence of his lot prior to the 20th day of December, 1803: Lawless vs. Newman, 5 Mo. Rep. 241- The point arose on an instruction given by the circuit court, all the judges being present and assenting. With this decision the cause was remanded, and a verdict found for Lawless, and the judgment of the circuit court affirmed. Judge Napton concurred in affirming the judgment of the circuit court, on the ground that there was no evidence on the record of so decisive a character, that Marli’s enclosure was a village lot, as would require this court to set aside the verdict of the jury. Judge McGirk being indisposed did not sit. If the lots confirmed to the inhabitants, in consideration of habitation, cultivation or possession, must have had a legal existence prior to the 20th day of December, 1803, equally ought those lots not rightfully owned or claimed by any private individuals, to have had a legal existence before the 20th December, 1803. Indeed it is'an absurdity in terms to call land a lot before it is divided. “The word lot in the United States,” says Webster, “signifies a piece or division of land, perhaps originally assigned by drawing lots, but now any portion, piece or division of land.” In this sense Congress used the words town or village lots, out-lots, &c. If not, then the direction given to the principal deputy to survey the out-boundary lines so as to include the out-lots, common field lots, and commons, means nothing. For if every thing included in the general survey, except the common field lots and commons, be intended by the word out-lots, then the principal deputy was at liberty to include the whole territory of Missouri, and then by the same liberal construction of the meaning of the word out-lot, one-twentieth part of the w'hole land would be intended to be reserved for the use of schools. But it is contended by the defendants in error, that if Congress intended by this second section, to give nothing but the land contained in the lots laid out under the authority of France or Spain, then they, the said defendants in error, will have nothing left for the support of schools; for, say they, there are no such lots left vacant in St. Louis ; Congress, therefore, must have intended, say they, contrary to their express declaration, to give for the support of schools, not lots having a lawful existence under the preceding government, but one-twentieth part of the whole lands included in the general survey. For they further say, Congress had in the 14th sec. of the act of the 4th of June, 1812, providing for the government of the territory of Missouri, declared that schools, and the means of education, shall be encouraged and provided for from the public lands of the United States; and although'Congress had made a most munificent provision from the public lands for the encouragement of education in the Territory general» *94ly, yet all the lands, near these enumerated villages, being appropriated to satisfy private claims, they would not be able to obtain their usual provision of the 16th section, and that this provision made in the second section for the support of schools in the several enumerated villages must be supposed to be a compensation for the loss of the sixteenth section.
Congress pledges its faith to the Territory of Missouri, to encourage and provide the means of education, and not to these villages enumerated in the first section of the act of 13th June, 1812. There is nothing, either in the title, or in the body of that act, to induce one to suppose that Congress in passing it, considered itself as redeeming a pledge made or given in,the above mentioned 14th sec. of the act of 4th of June, 1812, the object of which is to provide for the government of the Territory of Missouri, whilst the object of the act of 13th of June, 1812, is to make further provision for settling claims to land in the Territory of Missouri. As above observed, it continues true to its object throughout the provisions of eight long sections ; and so far was Congress from being affected with the knowledge that all the lands in the vicinity of these villages had been applied to satisfy private claims, that it appears from this act, that the public lands had not been then surveyed. For by the 5th section the principal deputy is directed to survey those to which the Indian had been extinguished. It moreover appears by this record, that there was in 1812, much vacant land near St. Louis.
The history of this act of I3th June, 1812, is so well known in St. Louis, that it is difficult to conceive how the defendants in error can be ignorant of it. As the material is on this record for other purposes} (which I am not able to appreciate,) I will give it: On the 30th day of June, 1808, four citizens of St. Louis, Pierre Chouteau, Bernard Pratte, -Hebert, and E. Yosti, filed with the Recorder of Land Titles, on behalf of the citizens of St. Louis, a claim for all lots, designated on a plat presented along with their claim. I suppose this claim filed, and the proceedings on it by the board of Commissioners, was intended as some evidence of the out boundary lines of St. Louis, which, as I conceive, are quite immaterial, so far as the plaintiff in error is concerned.
The thirtieth day of June, 1808, was the last day allowed for filing claims, to be adjudicated on by that board. The copy of the proceedings shows that Penrose voted for the confirmation of the whole: Bates and Lucas voted against it: Judge Lucas giving at large some very sensible reasons for his vote. Penrose, the said commissioner, and Riddick, the clerk to the Board, bore the report of that Board to Washington City in 1812, and remained in Washington City till the last of *95Biarch, at least. While they were there, Mr. Penrose addressed a very long letter on the subject of these claims yet unsettled, to Mr. Gal-latin, then Secretary of the Treasury, and Mr. Riddick another to Mr-Morrow, Chairman of the Committee of Public Lands. Both these letters are agreed to be considered as on the record. I copied into my opinion in the case of Hammond vs. the same defendants in error, so much of them as is material here. See ;page 85 of the 8th vol. Mo. Rep. A plain man who would read these extracts on the 85th page above cited, could not fail to see in them the origin of the two first sections of this act of 13th June, 1812. But when we connect with these extracts, the claims filed on the 30th July, 1808, as above mentioned, and when we consider the proceedings of the Board on these claims? the conclusion is almost irresistible, that Chouteau, Pratte, and others filed their claims at the suggestion of Penrose and Riddick. Both these letters of Penrose and Riddick were communicated to the House of Representatives. Penrose’s was dated 20th March, 1812, and Rid-dick’s the 26th March of the same year.
So negligent were those inhabitants in proving up their claims, that the act of 26th May, 1824, was afterwards passed to allow them further time for filing their claims.
A lot, in the sense in which the word has been here used by Congress, is a piece, or division of land, marked out by authority of law, prior to the 20th day of December, 1803, for since that time, and prior to the passage of the act of 13th June, 1812, the Congress of the United States recognized no power west of the Mississippi, authorized to lay out lots in the Territory.
The defendants in error then, having no right according to the express language of the second section above cited, to receive for the support of schools, any land but what is contained in a town or village lot, an out-lot, or common field lot, it is quite immaterial to the plaintiff in error, what were the out-boundary lines intended by this act to be assigned to St. Louis. It is also immaterial to the merits of this case, whether according to Stoddard and Breckinridge, the French inhabitants at and near the Fort de Chartres, first came to St. Louis in the spring of the year 1766, then well knowing the French territory west of the Mississippi to have been transferred to Spain, and found it already inhabited, the survey of the town haying been quite accurately made in the year 1764, by Pierre La Clede, Maxan and Company, (in pursuance of an order of the crown of France made before the cession, as will very readily be believed by every body a little acquainted with the history of the French settlements in North America,) or whe*96ther those French inhabitants, according to the defendants in error, after the arrival of Count O’Reilly in 1769, at New Orleans, removed to the place where St. Louis now is, still believing the country to belong to France, because they did not desire to be transferred to the British Crown, and by conventional arrangements among themselves, made their settlements in the form of a village, leaving vacant spaces at convenient distances for streets. A lot, in the sense in whicii Congress uses the word, is still a piece or division of land, that had at the time of the passage of the act, a legal existence; and if at the time of the passage of the act it legally existed, it must also have legally existed prior to the 20th day of December, 1803. The defendants in error, on the 29th page of their printed argument, say, truly, that the word lot has no technical signification. But in the sense in which it is here used, it must have received a form from the hand of some person authorized to give it that construction.
Thus much being said, I will proceed to examine the instructions given and refused, premising that Congress by the act of 26th May, 1824, and 27th January, 1831, gave nothing more than had been given by the act of 1812, nor could they give it, to the detriment of the plaintiff in error.
To the first instruction asked by the defendant in error, there is no objection to be made; but to me it appears that a question about the out-boundary lines, could scarcely arise, unless the United States were a party, and no exception appears to be taken.
The second instruction assumes the whole ground, that every piece of land included within the out-boundary lines, is such a lot as is designed to be reserved for the support of schools.
In the beginning it is modestly called a lot, or parcel of ground, then it is called absolutely a lot, and the court is prayed to tell the jury, that if they find that the surveyor did survey, designate and set apart to the said town, the said lot for the support of schools, the plaintiffs have shown a sufficient title. It has been sufficiently shown that no lots could have been given by Congress, except such as had a legal existence prior to the 20th day of December, 1803, unless we commit such an outrage on the plain and obvious meaning of the language of Congress in the second or granting section, as to call all the land included in the out-boundary lines of the general survey, either a town or village lot, out-lot, or common field lot, while the same section contemplates the existence of land undivided, and of lots within that survey, as when it is provided that the whole quantity of land contained in the lots, reserved for the support of schools, shall not exceed one-*97twentieth part of the whole land included in the general survey, where the word land is twice used in contradistinction to the word ioi, manifestly showing that Congress did not' consider all the land included in the general survey as lots. Should it be found upon proper investigation that the corporation of St. Louis, since the occupation of the country by the United States, (whether before or after the passage of this act, is immaterial,) themselves surveyed and marked out these streets, bounding this lot, then it can by no means be called such a lot, as Congress intended to reserve for the support of schools.
The defendants in error, by way of illustrating their case, stated in their oral argument, that they occupied and- held in peace a lot which lay in the south-eastern intersection of Market street, produced in the year 1816, and Fourth street, which was laid out in the same year by private individuals. It is in evidence in this case, and has been in several kindred eases, that there was at the change of- government, much vacant land betwixt Thi/d street and the space of ground now occupied by Fourth street. Some of this ground lying in the intersection of Market and Fourth streets, both as aforesaid made by private persons, they claim as a lot, and thus their own trespass is cited as an authority to regulate the decisions of this court. Many trespassers have taken timber off the land of the United States, in Missouri, but none, I hope, have yet claimed the right to take the timber of private individuals, beeause they had not been punished for taking that of the United States.
The second instruction appears to me to be greatly erroneous.
The second and fifth instructions prayed by the defendant below, plaintiff in error, ought to have been given for the same reasons that the second asked by the plaintiff below, defendant in error, ought to have been refused. Congress gave nothing but lots for the support of schools, and after the 20th day of December, 1803, there existed no authority to lay out lots in St. Louis, consequently every lot given by the act must have had a legal existence before the transfer of the Territory to the United States. Had Congress intended to give for the support of schools in St. Louis, any land not divided into lots, that instruction might and would have been expressed in terms plain and simple. They had only to say that they gave for the support of schools, one-twentieth part of the land contained in the general survey of the town or village. But they chose rather to say, they gave lots not rightfully owned or claimed by any private individuals, with a proviso that the land contained in these lots should not exceed one-twentieth part *98of the whole lands contained in the general survey. These two instructions should clearly have been given.
The seventh instruction ought to have been given. The eighth instruction might, I believe, with safety have been given, but as the merits of the case might well have been examined on the other instructions, the eighth might well have been omitted. This act of 13th June, 1812, was most manifestly framed, or at least the two first sections of it were framed on the letters of Penrose and Riddick, referred to in Hammond vs. the defendant’s in error; and although Congress, as is contended, had other sources of information, yet it is hard to conceive that they had any as good and convenient — Judge Lucas and Mr. Bates, the two other commissioners, being presumed to be at home. Penrose calls them out-lots, or field lots, (as they are termed,) and says all those tracts have been cultivated from 15 to 50 years, p. 85 of 8th vol. The late Judge Laduc understood them to be synonymous terms. He had resided in St. Louis from 1799, and had been till the transfer of the country, Private Secretary to the last Lieutenant Governor, and till his death a few years since, was officially connected with the records of land titles. See his testimony in the bill of exceptions, in the case of Newman vs. Lawless, on file in the office of the clerk of the supreme court.. Mr. Paul, the city surveyor, who in 1816, ran out this Fourth street above mentioned, and laid out the addition to St. Louis, in 1816, entertained the same opinion; his testimony is found on the same record with that of Judge Laduc above mentioned. It is true there were other out-lots, as mill lots and barn lots, but as every inhabitant would not want a mill or barn, these it may be presumed, were conceded only on special request, and were not marked out to lie vacant till some demandant appeared ; and it has never yet appeared that any of these lots have been cultivated from fifteen to fifty years. Penrose saysj the out-lots, or field lots, (as they are termed,) had been. The eighth instruction might with propriety have been refused, for if it can be shown that there were other out-lots than common field lots vacant, that is, not rightfully owned or claimed by private individuals, then they have a right to take them for the support of schools, till they acquire a portion of land not exceeding one-twentieth part of the whole lands included in the general survey of the town.
The tenth instruction is unexceptionable and should have been given.
The eleventh instruction is a mere echo of the tenth. The other five instructions asked by the plaintiff in error, do not, in my opinion, merit attention.
*99I feel myself justified in saying that this was the cotemporaneous construction given to that act. In’1812, the best informed men might well believe that some lots would be found within the general survey of St. Louis, not rightfully owned, or claimed by any private individuals. For most of those claims were not asserted till after the passage of the act of 1812, and many not till after ^that of 26th May, 1824. Mr. Pen-rose, in his letter above referred to, after recommending the confirmation of the out-lots, or field lots, as he says they are termed, says “there may be a few vacancies,” perhaps in those fields, and advises that they be given to the inhabitants for public schools. Mr. Riddick says :— “The United States can claim no right over the same, except a few solitary village lots, and inconsiderable vacant spots, which might be given to the inhabitants for public schools.”
Congress thought proper to give for the support of schools, the “vacant lots,” that is, the lots not rightfully owned or claimed by any private individuals; but they give neither the “few vacancies” of Penrose, nor “the inconsiderable vacant spots” of Riddick. These men lived long afterwards at St. Louis, rich and influential, deeply interested in its prosperity, and never did they use their influence to appropriate these “few vacancies,” or “inconsiderable vacant spots,” for the support of schools. The evidences of their zeal in behalf of the public schools, we have seen in the extracts from their letters.
Again, on the 30th January, 1817, an act of the Missouri Legislature, by which seven of the most respectable citizens of the town or village of St. Louis, were appointed to take in charge “all the lands and other property which hath, or may be given by Congress, to said town for the support of schools, and appropriate the same,” &c. I speak now from my own knowledge of what I saw, and of what I acted a part, for I suppose the Journals are all burnt in the State House, and feel assured that no man will deny a word that I say, although most of the actors are removed from this life. At the commencement of the session of 1818, the last session of the Territorial Government, an eminent young lawyer, representing St. Louis county, and residing in the village, introduced a bill to repeal the law. Never has St. Louis been more ably represented, and fortunate will she be, if in a century to come she shall be more ably represented. The late Judge Laduc was a member, than whom, not even one of the first Board of Commissioners to settle and adjust claims to land, knew more of these claims.
Not one of this able representation, though four of them lived in the village, stirred to prevent the repeal of this act.
Unfortunately for the success of the introducer of the bill, he had *100undertaken too much. His bill was framed with a view to repeal this act, and another act passed also, at the same session of 1817, that is, “An act to encourage the killing of wolves, panthers and wild cats.” This the frontier members considered as officious intermeddling in their own peculiar business. The members from the Boonslick country, then first represented in the legislative body, rose as one man, and calling on all those in like situation, caused the bill to be rejected at the first reading. It is necessary to say that this young lawyer yet lives, and by a long train of services in the legislative body, has shown himself to be amongst the ablest, if not absolutely the ablest, man in the State. At that last session, Mr. Riddick was a distinguished member of the Council, and he, like the representation in the House, made no more efforts in behalf of the supposed interests of the public schools, knowing well, I suppose, that they had no shadow of claim, under the act of 13th June, 1812. About that time, perhaps while the last Territorial Assembly was sitting, the'jailor of St. Louis county claimed the right of pre-emption in the purchase of all the vacant land lying betwixt Third'and Fourth streets, and I know that it was the opinion of the late Judge McGirk, that he was entitled to it. At that time I was well acquainted. in St. Louis, and had been so for nine years previous, and though on the occasion of the passage of this act of 1817, I had heard much against the claim of the public schools, I cannot charge my memory with one word said in their favor; and the act of 30th January, 1817? had become so much a dead letter, that when in the argument of the case of Hammond vs. the same defendants in error, Mr. Spalding intimated that the defendants had forfeited their right by a non user. Mr. Bates, who lived in St. Louis at the passage of that law, answered that they could not use it, because the Legislature had conferred on them no power. It was reserved, in my opinion, for the ingenuity of these latter days, to find out that the word out-lot means any -piece of vacant land that lay within the general survey. The defendants in error have attributed to the late Mr. Hempstead the introduction of the convenient word out lot in the act of 13th June, 1812, to whom both in the oral argument of this case, and in that of Hammond vs. the same defendants, they gave a seat in Congress for the purpose of framing the bill, and so laudably zealous were they in the cause of education, that they did not at first perceive that the law was passed the session before Missouri had a delegate in Congress. But the blunder perceived was easily corrected, by sending Mr. H. to Congress on private business. If Mr, Hempstead had been on that occasion at Washington City, it is not probable that the chairman of the committee on Public Lands would have *101required him to write the bill in preference to Penrose, the late commissioner, or Riddick, the clerk to the board; since either of these last understood the subject much better than Mr. Hempstead’s professional labors allowed him to do it, and certainly both Penrose and Riddick were as capable of writing as was Mr. H. Mr. Hempstead left behind him a high character for openness and plain dealing. Had he written the second section of this act, under which the defendants in error claim this land, with a view to give them land whether divided into lots or not, he would have stated in plain terms, that one-twentieth part of the land contained in the general survey shall be reserved for the support of schools. But Mr. Hempstead was most probably at home attending to his extensive professional business, and the law must be construed as if it were framed by some plain man, who was accustomed to use words in their popular sense.
But it is said by the defendants in error, “the President of the United States can select no land for military purposes, within the survey under the act, except such as in the absence of such selection would beset’ apart for the use of schools; that the Piesident did reserve'a vacant space of ground on the south, and on that lot the United States Magazine is erected.” It was not, nobody pretends it ever was a village lot, or common field Jot, or that it was ever surveyed, or marked, granted to, or inhabited, cultivated or possessed by any person ; yet it was reserved by the President under the second section.” I cannot say that the President reserved that lot under the second section, as I know nothing either of him, or of the reason of his acts, except through the laws of the United States. But most assuredly the Executive of the United States has reserved land for military purposes wherever he pleased, without the aid of the second section of the act of the 13th June, 1812. In the case of Wilcox vs. Jackson, 13 Peters, p. 498, it was decided that the President may reserve for military purposes any lands of the United States; and as he speaks through the heads of Departments, a reservation of land made 'at the request cft’ the Secretary of War for the purposes of his department, must be considered as made by the President of the United States. Nor did I ever consider the second section as containing a grant of power to reserve lots for military purposes, but as the recognition of a power already existing, which the Congress by the second section declared its intention not to withdraw in favor of the several towns or villages. However that may be, Congress by the act of 27th January, 1831, relinquished to these several towns or villages, all the right, title, and interest of the United ¡States in and to the town or village lots, &c*; evidently showing that *102they did not conceive that the President of the United States either had taken, or would take anything liable to be selected for the support of schools. But suppose for a moment, that the President of the United States had declared in express terms, that he took possession of this piece of ground for military purposes under the second section of this act; is the action of a mere executive, or ministerial officer, however high, to furnish a rule of decision to this or any other court of record ? It is to me a novel doctrine. But here it is sought to make the President of the United States an authority not only to this court for the law of the case, but to the jury for the finding of the facts, that such a piece of land as he is said to have selected for military purposes, is an ouf-lot of St. Louis, for the support of schools under the second section. If our courts gain ground as fast as the defendants in error we shall soon, in imitation of the courts of the Roman civil law, write to the President of the United States for his exposition of the law, as any new case arises.
The second section gives for the support of schools, all town or village lots, out-lots, or common field lots, not rightfully owned or claimed by any private individual, and which the President of the United States may not think proper to retain for military purposes, provided that the whole quantity of land contained in the lots reserved for the support of schools, shall not exceed one-twentieth part of the whole lands included in the general survey of such town or village. The Commissioner of the General Land Office taking on himself the responsibility of changing the language of Congress, directs the Surveyor General to survey, designate, and set apart for the support of schools in St. Louis, not the vacant town or village lots, out-lots, and common-field lots, as the law directs, but “the portion of land now applied for” by the defendants in error, that is to say, all the vacant ground lying between the front line of the common fields of the town of St. Louis and the claims of Chouteau, Eglize, Yosti, Soulard and Glamorgan, and Third stréet, also any vacant land lying between the survey of Glamorgan and Cherry street south, See. That is to say, Congress gives lots, and Iheir agent drawing all his authority from their act, gives land. All this, as before observed, would furnish the complainant no ground of complaint, but would be a subject matter of correction to the General Government only, if the plaintiff in error had acquired no right to the disputed land. But if the language of the act of Congress is to prevail over his version of it, then in my opinion, he has transcended his powers. Of this, however, it is the right and duty of the Supreme Court of the United States to decide ultimately. Nothing *103is more clear, however, than that Congress uses the word land and lot in different senses ; and had they intended to give one-twentieth part of the land contained in the general survey, they had no occasion to say anything about giving town or village lots, out-lots, or common field lots. “The word lot,” says Webster and the Encyclopaedia Americana, “is an ^Americanism. It may be large or small, according to the subject matter of discourse.” An American historian might well say that the peace of 1763, when the French North American possessions were divided betwixt England and Spain, that that portion west of the Mississippi, became the lot of Spain. But without a strange perversion of language, the Commissioner of the General Land Office could not say that that portion of the land contained in the general survey, which was neither town, nor village lot, or common field lot, and which, of course had not been divided, was either an out-lot or out-lots; if so, then the Commissioner had nothing' to do but direct the out-boundary lines of the town to be extended to the limits of the' State, and then all the State would become an out-lot or out-lots of St. Louis, and at his pleasure he might designate, &c., for the support of schools in St. Louis, one hundred sections of the best cultivated land in the western counties, with as much propriety as he could the vacant land betwixt Third and Fourth streets, above mentioned. It is true this land was not on the 13th Juñe, 1812, divided into sections} and the vacant land above mentioned, between Third and Fourth streets was also not divided into lots at that time. As a matter of general history, the one fact is as well known as the other, and the couit of original jurisdiction has, at the instance of the defendant in error, precluded the plaintiff in error from leaving it to the jury, to find whether the land in controversy, was at the passage of the act, or what is equivalent before the change of government, such a piece of land as could, according to the popular meaning of the words, be granted for the support of schools, by the terms towns or village lot, out-lot, common field lot, in, adjoining, or belonging to St. Louis, assuming the ground that Congress used all this circumspection of town or village lot, out-lot, or common field lot, to mean nothing more than vacant ground, having a definite boundary; and as all the vacant land lying in the territory has a definite boundary, then, the term out-lot must include all that vacant land.
According to the same construction, the term out-lot must equally mean so much of the vacant land as it may please the Commissioner of the General Land Office to direct .to be included in the general survey. But the popular meaning of the word out-lot, and common *104sense construction, tell us that the out-lot, and the other lots-mentioned in the act, require those lots to have a location defined by motes and bounds, so that they can be distinguished, and included within the lines of a general survey, and no moré land be included in that general survey than what is found to be contained in the lots and vacancies, if any, that may - be found betwixt them. These vacancies, if any, we have seen from the proviso to the second section, are distinguished from the lots, where it is said the whole quantity of land contained in the lots reserved for the support of schools in any one town or village, shall not exceed one-twentieth part of-the whole lands included in- the general survey of su-ch town or village.
In this last sentence as before observed, Congress has twice used the word land in contradistinction to the word ioi, to show us that every piece of land having a definite boundary, does necessarily become such a town or village lot, out-lo-t, or common field lot, as to authorize the Surveyor to reserve it for the support of schools in St. Louis.
The second instruction asked by the defendant in error, was'wrongfully given, and of those asked by the. plaintiff in error,, the second, fifth, seventh and tenth, were in my opinion wrongfully refused; and for this reason it is my opinion the judgment of the court of common pleas ought to be reversed-.
■ P. S. Since the above opinion was- written, the following account of the origin of St. Louis has been found:
“The city of St. Louis, was founded in the year 1764, by Monsieur Laclede, one of the partners in a mercantile association, known under the name of Laclede, Ligueste, Maxan, and Company, to whom the Director General of the Province of Louisiana, had granted the exclusive privilege of trading with the Indians of the Missouri, and those west of the Mississippi above the Missouri, as far up as the river St. Peter. The trafile in furs and peltries with these distant tribes, though of great value, would have been unavailable without a suitable place of deposite of merchandize; and to induce the company to hazard the establishment of such a depot, which would serve as the nucleus of new settlements west of the Mississippi, extensive powers were given to the gentlemen engaged in this enterprise.” Laclede it seems in August 1762, left New Orleans to view the river as far as the mouth of the *105Missouri; and concluding that Ste. Genevieve, where there was already a small settlement, was too far below the mouth of the Missouri, he commenced, on the 15th of February, 1764, the work of cutting down trees, and laying out a town, which he called St, Louis, “ after the reigning King of France.” Hall’s Sketches of the West, vol. 1, part 2, ch. 2, p. 165. All escape then from construing the word ct out-lot” in its ordinary acceptations is hopeless, For here is a grant to this company by the Director or Governor General, in whom alone the power to grant land resided, both under the French and Spanish rule, till 1798, when it was transferred to the Intendant General of the Province, where it remained as long as Louisiana belonged to Spain. 2 vol. Land Laws M. S. p. 530, from No. 2, to No. 14, ending on p. 552 of said volume.