the parcel or parcels of land which they are obligated by this contract to convey to each family, or the several families respectively, and have actually settled a family or several families respectively therein, they shall immediately receive thereafter a full and absolute conveyance from the government of the republic for as many sections of land of 640 acres, or half sections, or other fractional parts of sections equal in amount to 640 acres, as there shall be families certified to in such certificate or certificates."

It was further provided that the unlocated lands included in the boundaries described in the contract should remain and be held by the government of the republic, for the purposes set forth in the contract, until the end of five years from its date, and "shall be considered as set apart, exclusively of all future claims, to be colonized in the manner aforesaid, by and for the benefit of the party of the second part and of this republic." It was also stipulated that unless Mercer and his associates, or their legal representatives,

"shall, prior to the first day of May, 1845, have introduced and settled on the land above mentioned, according to the tenor of this contract, one hundred families, all right and title of the party of the second part, or their legal representatives, to proceed further in the execution of this contract shall cease and determine from the moment of such default; but such default shall not work or operate retrospectively, but leave to the party of the second part, and all persons claiming under them, whatever right, title, or interest they may have acquired from the action of the party of the second part and their legal representatives prior to such default, to the same extent as if no such default or failure had occurred; and in like manner, and under like qualifications, the right of the said party to proceed further under this contract shall cease and determine: provided, 250 families be not introduced and settled by them, in manner aforesaid, on or before the expiration of two years from the date thereof; and so in like manner 150 additional families shall be settled on the said lands, according to the terms of this contract, by the said parties of the second part or their legal representatives, within each of the three remaining years, or the right of the said party to proceed further under this contract, through the full term of five years from the date hereof, shall, on the occurence of any default as aforesaid, utterly cease and determine: provided, as before expressed, no such default shall operate otherwise than prospectively, either in relation to the said second party to this contract, or to the emigrant families actually settled, or any person or persons claiming by, through, or under them, or any of them."

To what extent did Mercer and his associates comply with their contract? The inference to be drawn from the opinion of the court is that the record furnishes no evidence whatever that Mercer and his associates did anything of a substantial character entitling them to the benefit of their contract with the republic of Texas. But we are of opinion that this is an erroneous view of the evidence. We cannot avoid the conclusion that the contrary is abundantly shown by the record. That Mercer and his associates introduced and settled 119 families prior to the first day of May, 1845, the evidence leaves on our mind no reasonable doubt. There was produced from the records of the general land-office of Texas, certified by the commissioner of that office, a copy of what is styled the original agreement or covenant, signed by the heads of that number of families,

showing the date of their introduction into and settlement upon the Mercer colony lands, the signature of each emigrant being duly witnessed. That agreement is in these words:

"This instrument witnesseth that the persons who have subscribed and undersigned their names hereto do hereby severally, but not jointly, agree and covenant as follows, to-wit:

"That each of us has received of Charles Fenton Mercer and his associates, known as and comprising the Texas Association,' a certificate issued in accordance with a contract made on the twenty-ninth day of January, A. D. 1844, between them and Sam Houston, then president of the republic of Texas,. acting in behalf of the said republic, authorizing them, among other things, to introduce and settle emigrant families upon the lands within the limits specified in said contract; the number and date of each certificate granted by said association, and by us received, being expressed and written in spaces to the left hand of our respective names, which certificates are received and held for the benefit of the respective families mentioned therein, each one of us forming a member of the family described in the certificate delivered to him, which families have been specially introduced and settled at the times and in manner and form as stated and expressed in said certificates respectively by the said Mercer and his associates, and have emigrated as the said certificates declare and show. And in consideration of the premises, and the benefits from said certificates and the contract aforesaid, accruing and to arise, that we will severally observe and perform, as far as may be in our power, the several duties and requirements devolving upon us as settlers under said contract, whether prescribed by the terms thereof, or by the laws of the land in such behalf especially. We bind ourselves severally not to give, sell, or in any way furnish to any Indian any spirituous liquor, nor any gunpowder, lead, or fire-arins, or warlike weapons of any description; and, moreover, to abstain from any waste or trespass upon the half sections adjoining those on which we have respectively settled, and on the whole sections adjoining thereto, and to guard the same from waste or trespass by others, and to protect the same from settlement by any other persons not authorized to settle thereon by the said association, or some legally authorized agent thereof; and to pay the sum of five dollars, in materials, labor, or money, towards the building of a schoolhouse of such dimensions and on such site as the said association or its agent may direct. Also, that each family specified or referred to herein, each one certifying alone for his own family, has and occupies a suitable cabin or house as described in said contract, and that each male member thereof of the age of seventeen years and upwards is supplied with a good rifle, yager, or musket, and a sufficient supply of prime ammunition."

This paper was supported by the signatures and the oath of one of the Texas Association, and two disinterested persons, to the effect that the list contained "a true and accurate account and statement of emigrant families as certified to by the heads thereof to have been specially introduced and settled by Charles Fenton Mercer and his associates, known as and comprising the Texas Association, prior to the first day of May, 1845, upon and within the limits of the grant made by the republic of Texas to said Mercer and his associates on the twenty-ninth of January, 1844, and referred to in the certificate subscribed to Ly the heads of the families respectively," etc. The record contains no evidence that the republic of Texas, by any of its of ficers, ever made any objection to this certificate as defective either in

1orm or substance. It brought the work of Mercer and his associates. as to these 119 families within the terms of that portion of the contract already quoted. They did "exhibit to the commissioner of the general land-office of Texas a certificate under oath subscribed by two witnesses," under date of August 2, 1845, and certified on the same day by a "person qualified by the laws of Texas to administer an oath," showing that Mercer and his associates had caused to be built a comfortable house or cabin on the lands settled upon by said fames, and showing also that they had actually settled said families on the lands for which they received the certificates mentioned in the agreement between Mercer and such settlers.

The criticism which is made in the opinion of the court upor. the language of this agreement and certificate, impresses us as exceedingly technical. It is said that the parties signing it do not state that they were emigrants from abroad introduced into the state by Mercer or his associates; they, however, do state and certify that they have each received a certificate in accordance with the contract of January 29, 1844, describing it as one which authorized Mercer and his associates "to introduce and settle emigrant families upon the lands within the limits specified in said contract;" and they certify that they were "specially introduced and settled," as set forth in the certificates; and that they "have emigrated as the said certificates declare and show." That the persons who signed that agreement did not mean to certify that they had emigrated from state or country without the republic of Texas is a suggestion which it did not occur to the attorney general of Texas in his very elaborate brief to make. It is for the first time found in the opinion of this court. That Philians, one of the persons who verified under oath the certificate relating to these 119 families, did not know "where the colonists came from," is a fact of no consequence; nor was it material to inquire from what particular state or country, other than Texas, they came. Philians, in his affidavit, refers to them as "emigrant families," meaning thereby that they came from without the republic of Texas. We have been unable to find any evidence that the persons embraced in these 119 families did not go to the Mercer colony tract from some place outside of Texas, and there is no suggestion to that effect in the argument of counsel. It is said that none of these persons made oath to the papers they signed. Our answer is that neither the contract nor the law of Texas required any such oath, but only the oath of two witnesses. It seems to us that the complainant has made a clear case as to the 119 families introduced by Mercer and his associates prior to May 1, 1845.

The next inquiry is as to the effect to be given to the report of John M. Crockett in 1851. That report was made under the authority of an act of the legislature passed February 2, 1850, the first section of which provided that "every colonist, or the heirs or administrators of such colonists, citizens of the colony of Charles Fenton

Mercer and his associates, on the twenty-fifth of October, 1848, shail receive the quantity of land to which such colonists may be entitled, to-wit, 640 acres to each family, and 320 acres to each single man over the age of 17 years: provided, that nothing herein contained shall be construed so as to place the contractors of said colony in a better condition in regard to the state of Texas than they would be if this law had not been passed." In this language we have a distinct recognition of the fact that there was, at the passage of that act, a body of citizens in Texas known as "citizens of the colony of Charles Fenton Mercer and his associates," and that, as "such colonists," they were entitled to a certain quantity of land. Persons within the limits of the Mercer grant, who did not settle there in pursuance of some arrangement with Mercer and his associates, could not have been regarded as citizens of "the colony of Charles Fenton Mercer and his associates." Nor could such persons have been described as of that colony and entitled, as "such colonists," to receive 640 acres, or any other quantity, of land, unless they had entered upon the land under the contract between the republic of Texas and Mercer and his associates. The proviso in the section quoted does not at all militate against this view. That only shows the purpose of the state not to give "the contractors of said colony" any advantage they did not then have under their contract with the republic.

The next section of the foregoing act provided for the appointment by the governor, by and with the advice and consent of the senate, of a commissioner, "whose duty it shall be to hear proof and determine what colonists shall be entitled to land as aforesaid; and said commissioner shall issue to parties entitled to the same, or to the heirs or legal representatives of such parties, certificates for their proper quantity of land." Plainly, the purpose of the legislature was, through that officer, to ascertain who were entitled to land in virtue of the contract with Mercer and his associates. It was in violation of the contract for the state thus to pass over the contractors and treat directly with the colonists, but it is none the less clear that she proceeded upon the basis of giving land only to those who were "of the colony of Charles Fenton Mercer and his associates." The official report of Crockett contains the names of all such persons. His action was judicial in its nature, and his determination as to who were entitled to land as colonists aforesaid, was a determination that Mercer and his associates had complied with their contract to the extent, at least, of the persons named in his report. The state gave land to all persons reported by Crockett as of the Mercer colony, and, consequently, she was bound by her contract to compensate Mercer. By the articles of her annexation to the United States it was provided that she shall "retain all the vacant and unappropriated land lying within her limits to be applied to the payment of the debts and liabilities of said republic of Texas, and the residue of said lands, after dis Tharging said debts and liabilities, to be disposed of as such state may

direct." Her liability, under her contract with Mercer, was one of the liabilities for the discharge of which she was bound to apply the unappropriated lands within her limits. Had the articles of annexation been silent as to the debts and liabilities, and made no provision as to the unappropriated lands of the republic of Texas, and had the United States taken such lands, then, according to the settled principles of public law, they would have been bound to meet the debts and liabilities of the late republic; at least, such as had been made a charge upon its public property. To avoid all difficulty upon that subject, it was expressly stipulated in the articles of annexation that Texas should retain her public lands, with power to dispose of them after discharging the debts and liabilities of the republic, and that “in no event are said debts and liabilities to become a charge upon the government of the United States." Thus was created, by treaty between the United States and the republic of Texas, an express trust for the benefit of those to whom the latter, at the time, was indebted or under liability. The agreement between the United States and Texas, constituted, within the meaning of the constitution, a contract, the violation of which, upon the part of the officers of that state, it is competent for the courts to prevent.

In the opinion of the court it is stated, among other things, that, since the contract was made with Mercer, Texas, both as an independent republic and as a state of the Union, has "denied its validity and refused to do anything under it." There is a serious obstacle in the way of our acceding to the correctness of this statement. It is found in the decision of the supreme court of Texas in Melton v. Cobb, 21 Tex. 540. Referring to this colonization contract with Mercer, that court said:

"That the contract of the twenty-ninth of January, 1844, if valid, reserved the land in question from location and appropriation by the plaintiff's certificate, cannot be doubted. But it is insisted that the contract was invalid, for the want of authority, on the part of the president of the republic, to confer on the grantee the benefits contemplated by the joint resolution of the sixteenth of February, 1843. He undoubtedly had authority under the act of the fourth of February, 1841, and the amendatory act of the fifth of February, 1842, to contract with the grantee to colonize vacant lands of the republic for that purpose, and to set apart and reserve from location the territory within certain boundaries, which he should designate, for the period of three years from the date of the contract."

Referring to the act of February 3, 1845, copied in the opinion of this court, the supreme court of Texas said:

"This act cannot be regarded as anything less than a virtual ratification by the government of the act of its agent in making the contract, and its legislative affirmation of its validity. * * * The contract was again expressly recognized and treated as an existing contract by the act of June 25, 1845, and these acts were passed prior to the plaintiff's location and survey. It is unnecessary to refer to more recent acts containing similar recognitions of the validity of the contract. It will suffice to say that these legislative recogni