United States v. Philadelphia and New Orleans

52 U.S. 609 (____) 11 How. 609

THE UNITED STATES, APPELLANTS,
v.
THE MAYOR, ALDERMEN, AND INHABITANTS OF THE CITIES OF PHILADELPHIA AND NEW ORLEANS.

Supreme Court of United States.

From this decree the United States appealed to this court. The appeal was argued by Mr. Crittenden (Attorney-General), for the United States, and by Mr. Strawbridge and Mr. Soulé, on behalf of the appellees, with whom was Mr. John Sergeant, representing the city of Philadelphia.

Mr. Justice CATRON delivered the opinion of the court.

In this case objections were made in the court below, and are again insisted on here, to the proof of authenticity of the title-papers on which the petition is founded; nothing but copies being produced. Our opinion is that the copies were properly admitted in evidence, and that they establish the facts that similar originals existed; and as on the true meaning of these documents our decision proceeds, we deem it proper to set them forth. They are as follows: —

Copy.

SENOR GOVERNOR-GENERAL: — The Baron de Bastrop, desirous of promoting the population and agriculture of Ouachita, and being about to pass into the United States of America to conclude the plan of emigration which he has projected, and to return with his family, represents to your lordship that it is indispensable that, on the part of the government, there should be designated a district of about twelve leagues square, in which may remain included the Bayou Siard and its vicinity, in order that, without the least obstacle or impediment, those families may proceed to settle upon them, which the petitioner is going to introduce under the express condition that concessions of land are to be gratis; and that under no title or pretext can they exceed the quantity of four hundred square arpents at most, with the object of preventing the introduction of negroes and manufactories of indigo, which, in that district, would be absolutely contrary and prejudicial to the culture of wheat, and would cause the petitioner to lose irremediably the profits of his establishment.

He also petitions your lordship to be pleased to grant him permission to export, for the Havana, the flour which may be manufactured in the mills of Ouachita, without restricting him to sell it absolutely in New Orleans and posts of this province, unless it should be necessary for its subsistence, as in that case it should always have the preference.

It becomes also indispensable that the government should charge itself with the conducting and support of the families which the petitioner shall have introduced, from the post of New Madrid to that of Ouachita, by supplying them with some provisions for the subsistence of the first months, and facilitating to them the first sowing of the necessary seed; granting to the inhabitants who are not Catholics the liberty of conscience enjoyed by those of Baton Rouge, Natchez, and other districts of the province, and the government being pleased finally to fix the number of families which the petitioner is to introduce.

Zeal for the prosperity and encouragement of the province, united to the desire of procuring the tranquillity and quiet of this establishment by removing at once whatever obstacles might be opposed to these interesting objects, induce me to represent to your lordship what I have set forth, hoping that your lordship will recognize in these dispositions the better service of the king, and advancement of the province confided to your authority.

DE BASTROP.

New Orleans, 20th June, 1796.

"New Orleans, June 21, 1796.

Seeing the advantages which will result from the establishment projected by Baron Bastrop, the commandant of Ouachita, Don Juan Filhiol will designate twelve leagues square, half on the side of the Bayou of Siar, and half on the side opposite the Ouachita, for the purpose of placing there the families which the said Baron may direct, it being understood that no greater concession of land is to be given to any one than four hundred square arpents, at most, gratis, and free from all dues. With regard to the object of this establishment, it is for the cultivation of wheat alone. The exportation of the products of this province being free, the petitioner need not doubt that it will be allowed to him for the flour which he may manufacture at the mills of the Ouachita, to the Havana and other places open to the free commerce of this province. The government will charge itself with the conducting of the families from New Madrid to Ouachita, and will give them such provisions as may appear sufficient for their support during six months, and proportionably for their seeds. They shall not be molested in matters of religion, but the Apostolical Roman Catholic worship shall alone be publicly permitted. The petitioner shall be allowed to bring in as many as five hundred families; provided that, after the lapse of three years, if the major part of the establishment shall not have been made good, the twelve leagues square destined for those whom the petitioner may place there shall be occupied by the families which may first present themselves for that purpose.

THE BARON DE CARONDELET. Registered. ANDRES LOPEZ ARMESTO.

Official.

Whereas, on the part of the Senor Intendente, by reason of the scarcity of funds, the suspension of further remittance of families has been solicited until the decision of his Majesty, there should be no prejudice occasioned to you by the last paragraph of my decree, which expresses that if, at the end of three years, the greater part of the establishment shall not have been found made good, the families which may present themselves shall be located within the twelve leagues destined for the establishment which you have commenced, and it shall only take effect two years after the course of the contract shall have again commenced, and the determination of his Majesty shall have been made known to you.

"You will always remain persuaded that, on my part, I will religiously observe the engagements which I shall have contracted; a maxim which has constantly distinguished the Spanish nation. God preserve you many years.

New Orleans, 18th June, 1797.

BARON DE CARONDELET. THE SENOR BARON DE BASTROP.

Concession.

The Baron de Carondelet, Knight of the Religion of St. John, Field-Marshal of the Royal Armies, Governor-General, Vice-Patron of the Provinces of Louisiana, West Florida, Inspector of their Troops, &c.

Whereas the Baron de Bastrop, in consequence of the petition, under date of the 20th of June of the year last past, and decree of the 21st of the same, has commenced the establishment of Ouachita, which thereby he stipulated with the government, in order to avoid all obstacle, difficulty, and embarrassment hereafter, and that with all facility the families may be located, which, to the number of five hundred, the said Baron is successively and proportionally to introduce or cause to be introduced, we have determined to designate the twelve leagues destined for said establishment in the terms, with limits, land-marks, and boundaries, and in the place which is designated, fixed, and marked out by the figurative plan and description, which go as a caption of this title, which are made out by the Surveyor-General, Don Carlos Trudeau, it having appeared to us to be thus most expedient to avoid all contestation and dispute, and approving them, as we do approve them, exercising the authority which the king has granted us, we destine and appropriate, in his royal name, the aforesaid twelve leagues, in order that the said Baron de Bastrop may establish them in the terms, and under the conditions, which are expressed in the said petition and decree. We give the present, signed with our hand, sealed with the seal of our arms, and countersigned by the undersigned, honorary commissary of war, and secretary for his Majesty of this commandancy-general of New Orleans, on the 20th of June, 1797.

THE BARON DE CARONDELET. ANDRES LOPEZ DE ARMESTO.

[For map see original.]

I, Don Carlos Trudeau, Surveyor Royal and Particular of the Province of Louisiana, &c., do certify that the present draft contains one hundred and forty-four superficial leagues, each league forming a square, the sides of which are in length two thousand and five hundred toises [a toise is six French feet long], measure of the city of Paris, according to the custom and practice of this colony, the said land being situated in the post of Ouachita, about eighty leagues above the mouth of that river, falling into Red River, adjoining on the part of the southwest to the eastern shore of the river and bayous Ouachita, Barthelemi, and Siard, conformably to the red line which borders the said river and bayous, bounded on the south part by a line drawn from the south seventy-five degrees east, about three leagues and one mile long, beginning from the shore C of the Bayou Siard, and continuing as far as the height of the junction A of the said Bayou Siard with the Bayou Barthelemi; the said point A being as a basis on the line of measurement A B, of twelve leagues in length, parallel with the plan of Bayou Barthelemi from the point A to the end of the said twelve leagues, which terminate at the point B, where is the mouth of the rivulet named Bayou Termiro; the lines D E, F G, are parallel lines, directed north fifty-two degrees east, without minding the variation of the compass, which varies eight degrees to the northeast.

In testimony I deliver the present certificate, with the draft hereto affixed, for the use of the Baron de Bastrop, on the 14th day of June, 1797, I, the surveyor, having signed the same, and recorded in the book A, No. 1, folio 38, draft No. 922, of the surveys.

I do certify the present copies to be conformable to the originals which are lodged in the office under my care, to which I refer; and, at the request of a party, I deliver the present, same date as above.

CARLOS TRUDEAU, Surveyor.

TO THE GOVERNOR-GENERAL: — Baron de Bastrop has the honor to make known to you that, it being his intention to establish in the Ouachita, it is expedient that you should grant to him a corresponding permission to erect there one or more mills, as the population may require; as also to shut up the Bayou de Siar, where he proposes to establish the said mills, with a dike in the place most convenient for his works; and, as it appears necessary to prevent disputes in the progress of the affair, he begs also the grant along the Bayou Barthelemi, from its source to its mouth, of six toises on each bank, to construct upon them the mills and works which he may find necessary, and prohibiting every person from making upon said bayou any bridge, in order that its navigation may never be interrupted, as it ought at all times to remain free and unobstructed. This request, Sir, will not appear exorbitant, when you are pleased to observe that your petitioner, who will expend in these works twenty thousand dollars or more, will be exposed without these grants to lose all the fruits of his labors by the caprice or jealousy of any individual, who, being established on this bayou, may cut off the water or obstruct the navigation; not to mention the loss which the province will sustain of the immense advantages to result from the useful project proposed for the encouragement of the agriculture and population of those parts. DE BASTROP.

New Orleans, June 12, 1797.

New Orleans, June 12, 1797.

Considering the advantages to the population on the Ouachita, and the province in general, to result from the encouragement of the cultivation of wheat, and the construction of flour-mills, which the petitioner proposes to make at his own expense, I grant him, in the name of his Majesty, and by virtue of the authorities which he has conferred upon me, liberty to shut the Bayou de Siar, on which he is about to establish his mills, with a dike at the place most proper for the carrying on of his works. I also grant him the exclusive enjoyment of six toises of ground on each side of the Bayou Barthelemi, from its source to its mouth, to enable him to construct the works and dams necessary for his mills; it being understood that by this grant it is not intended to prohibit the free navigation of the said bayou to the rest of the inhabitants, who shall be free to use the same, without, however, being permitted to throw across it any bridge, or to obstruct the navigation, which shall at all times remain free and open. Under the conditions here expressed, such mills as he may think proper to erect may be disposed of by the petitioner, together with the lands adjoining, as estates belonging entirely to him, in virtue of this decree, in relation to which the surveys are to be continued, and the commandant, Don Juan Filhiol, will verify and remit them to me, so that the person interested may obtain a corresponding title in form; it being a formal and express condition of this grant, that at least one mill shall be constructed within two years, otherwise it is to remain null.

THE BARON DE CARONDELET. Registered. ANDRES LOPEZ ARMESTO.

To his Excellency the Senor Baron de Carondelet, Governor-General

of the Province of Louisiana, &c.

Don Philip de Bastrop has the honor to observe to your lordship, that the twelve leagues square which your lordship has granted to him by his contract are found in part overflowed and occupied by ancient inhabitants, in consequence of which he prays that your lordship will be pleased to grant him the same quantity of land, to be taken upon the River Ouachita and the Bayous de Siard and Barthelemi, where it will be most convenient to him, without prejudice to the lands which your lordship has granted to the Senor de Maison-Rouge, in the Prairie Chatellerian; a favor which he hopes to receive from the upright justice which your lordship administers.

P. DE BASTROP.

New Orleans, 10th June, 1797.

Order.

New Orleans, 10th June, 1797. As he requests, let it be despatched by the secretary department, in the form which he solicits. THE BARON DE CARONDELET.

Translation.

June 21, 1796.

TO THE SENOR BARON DE BASTROP: — With attention to the advantages which must result to the population of the Ouachita, and that of the province in general, from the encouragement of the cultivation of wheat and construction of flour-mills which the petitioner intends to make at his expense, I grant him, in the name of his Majesty, and using the powers which he has conceded to me, that he may close the Bayou de Siar, where he may establish the mills with a dike at the place most suited to his works. I likewise grant him the exclusive enjoyment of six toises of land on each side of the Bayou Siar, from its source to its mouth, in order that he may construct the works and embankments necessary to his mills; it being well understood that in this grant it is not understood to prohibit the free navigation of said bayou to the other inhabitants who may make use of it; without, nevertheless, it being permitted to them to cast any bridge nor embarrass the navigation, which at all times is to remain free and unimpeded. Under the conditions expressed, when the mills have been constructed which he may see fit, he may dispose of them and of his adjacent lands as property belonging to him entirely, in virtue of this decree, by which the proceedings of survey, which the commandant, Don Juan Filhiol, shall make out and remit, shall be extended in consequence, in order to provide the party concerned with the corresponding title in form. It being a formal and express condition of this grant, that at least one mill be found constructed within two years, since otherwise it shall remain annulled.

The Baron de Bastrop contracts with his Majesty to furnish, for the term of six months, rations to the families which he has latterly introduced at the post of the Ouachita, which are to be composed of twenty-four ounces of fresh bread, or an equivalent in flour; twelve ounces of fresh beef, or six of bacon; two ounces of fine manestra, or three of ordinary, and one thousandth part of a celemin (about a peck) of salt; for which there is to he paid to him, by the royal chests, at the rate of a real and a half for each ration; for which purpose there shall be made out, monthly, a particular account, the truth and regularity of which shall be attested, at foot, by the commandant of that post. Under which conditions, I oblige myself, with my person and estate, to the fulfillment of the present contract, subjecting myself, in all things, to the jurisdiction of this General Intendancy.

In testimony of which, I sign it at New Orleans, the 16th of June, 1797. BARON DE BASTROP. New Orleans, date as above.

I approve this contract, in the name of his Majesty, with the intervention of Senor Gilbert Leonard, principal contractor of the army in these provinces, for its validity. Two certified copies are to be directed to the Secretary, Juan Ventura Morales. With my intervention, Gilbert Leonard. Copy of the original, which remains in my keeping, and which I certify, and is taken out, to be passed to the Secretary of this General Intendancy.

New Orleans, ut supra.

GILBERT LEONARD.

Whereas the Intendant, from the want of funds, has solicited the suspension of the last remittance of families, until the decision of his Majesty, there ought to be no prejudice occasioned to you by the last paragraph of my decree, which expresses that, if within three years the major part of the establishment shall not have been made good, such families as may first present themselves shall be located within the twelve leagues destined for the settlement which you have commenced; and this shall only have effect two years after the course of the contract shall have again commenced to be executed, and the determination of his Majesty shall have been made known to you. You will always remain persuaded that, on my part, I will observe, religiously, the engagements I have contracted; a principle which has constantly distinguished the Spanish nation. God preserve you many years.

New Orleans, June 18, 1797.

THE BARON DE CARONDELET. BARON DE BASTROP.

Complainants exhibit all these title-papers, and pray that the validity of their claim may be inquired into and decided. On part of the United States, a brief denial of all the facts alleged was made; and on this issue the District Court adjudged that the grant to the Baron de Bastrop was a valid and lawful grant, by legal title in form; and further adjudged that complainants be declared the true and lawful owners, and entitled to recover from the United States, and be for ever quieted and confirmed as against the United States in the ownership and possession of the land claimed by them.

And here a difficulty arises, whether the District Court had jurisdiction, as on its own assumption, that this was a perfect Spanish grant, no power existed under the act of 1824 to pass judgment on such title. So we held at our last term, in the case of the United States v. Reynes, 9 Howard, 127.

But in all cases of titles not perfect, and which by decree may be made so, founded on the equity of such claim, jurisdiction does exist; and Bastrop's contract with the Spanish government, not being a perfect title in our judgment, either in form or substance, its character and validity can be inquired into, and adjudged, under the act of Congress. And that it was of this imperfect character, complainants themselves formerly assumed; they having submitted their title to a board of commissioners instituted to examine and report to Congress on imperfect grants, and which board reported unfavorably of the Bastrop claim.

It has also on several occasions been presented to Congress, and a perfect title required, on the assumption that there was none.

It is true, that no equity is set up in the petition, the title-papers being relied on, and nothing more; nor is there any evidence found in the record, tending to prove that Baron Bastrop expended any thing whatever by bringing in families. They were obviously settled on the land at government expense. Only between twenty and thirty families were settled, as is proved by Stuart and Filhiol, who name the heads of each family, and who are complainants' witnesses. The settlers have received titles from the Spanish provincial government, or from the United States government, under which they now stand protected. They manifestly never claimed under Bastrop, nor sought to acquire titles under him. This disposes of the preliminary questions.

And we now come to an examination of the title set forth and relied on in the petition. The final power concluding Governor Carondelet's decrees bears date June 20, 1797. For a proper understanding of this decree it must be taken in connection with previous documents to which it refers, including the process verbal and plan, delivered to Baron Bastrop, June 14, 1797, by Trudeau, the Surveyor-General. June 20, 1796, Bastrop represented to the governor, that, to conclude his plan of emigration to Ouachita, which he had projected, there should be designated a district of about twelve leagues square, in order that, without the least obstacle or impediment, the families he might introduce could proceed to settle on the land.

June 21, 1796, the governor assented to this request, and ordered Filhiol, the commandant at Ouachita, to designate the land, "for the purpose of proceeding to locate upon them the families which the aforesaid Baron may direct."

The land was designated by a plan; and on it, and on the previous agreement, the final decree of June 20, 1797, proceeds. It is insisted that this is a decree of a perfect title, (or fee simple in our law language,) vesting the twelve leagues square in absolute property in the Baron de Bastrop, subject to descent and alienation; and as a settlement of this question will end the controversy, we do not propose to examine any other. This document recites, that the Baron had commenced the establishment, according to his petition and the governor's decree therein, of the previous year; and in order to avoid all obstacles, difficulty, and embarrassment thereafter, and that with all facility the families might be located to the number of five hundred, as the Baron was bound to do; "we have," says the governor, "determined to designate the twelve leagues destined for said establishment." That is to say, according to the plan of survey above referred to, and which is attached to the decree. And then came the effective words of grant relied on: "We destine and appropriate in his royal name [the king's] the aforesaid twelve leagues, in order that the said Baron de Bastrop may `establish' them, in the terms, and under the conditions, which are expressed in the said petition and decree." Having had a translation made of the Spanish grant, we find that the word "establish," next above, should be "settle."

A territory of twelve leagues on all sides, amounting to one million of arpents, was "destined and appropriated," in order that the Baron "might settle the land," and establish his colony, without difficulty or embarrassment in exclusion of others making similar establishments under public authority; and also in exclusion of private persons, not introduced by the Baron. For this purpose, the land was destined and appropriated. As colonizer, the Baron had a monopoly, within the district, to introduce settlers. His object was monopoly throughout. He was a Hollander, and proposed to introduce farmers from his own country, as appears by Governor Carondelet's letter to Filhiol, commandant at Ouachita, read by complainants. To each emigrant family a tract of four hundred arpents was to be granted gratis; the farmers were to be engaged in raising wheat, and restricted to this crop as an article produced for the market. To prevent other crops, such as indigo, from being grown, the farms were to be small; and in aid of this policy, slave labor was intended to be excluded.

As five hundred wheat-growing farms were to be established under the supervision of the Baron, it is manifest that a large section of country was deemed necessary, because the greater portion of southern flat and wet lands were unfit for the purpose of raising wheat.

Another circumstance is manifest. The agitations of his own country, growing out of the French revolutionary wars, were such as to induce the Baron to believe, no doubt, that families might be had, to almost any number, whose farms had been devastated at home by the events of war, or who desired to seek shelter from harassment in Louisiana. And in this conclusion the Spanish government obviously concurred; and was furthermore of opinion, that great advantage would result to the province from such an establishment as was proposed by the Baron; and therefore he was most liberally dealt by. From New Madrid, on the River Mississippi, through the country, to the lands designated, the government bound itself to transport the emigrant families and their baggage, to the number of five hundred; to furnish them with support for six months, and with seed for the first year.

Thus, provision was made for a colony at public expense. The Baron's design was the production of large quantities of wheat. This was a primary step contemplated. But the leading object of profit, on part of the Baron, was the manufacture of flour; and that he should be the exclusive monopolist in grinding the wheat. To secure this monopoly, he applied to the governor for a grant in property of the Bayou de Siar, and also the Bayou Barthelemi, and six toises of land on each side of said bayous, from their sources to their mouths, for the purpose of enabling him to erect his mills on them, and of making the necessary dams and dikes: in doing which he alleged that he would have to expend twenty thousand dollars, or more. The grant was made, as solicited, for both the bayous. It declares that "such mills as he (the Baron) may think proper to erect, may be disposed of by him, together with the lands adjoining, as estates belonging entirely to him." And the commandant, Filhiol, was ordered to survey the bayous and lands granted on each side thereof, and remit the surveys to the governor, so that the Baron might obtain a corresponding title in form. The Bayou de Siar bounds one side of the survey of twelve leagues, and the Bayou Barthelemi meanders through its depth, for twenty or thirty miles.

The Baron also stipulated by his contract that he might be permitted to transport his flour to Havana, and other places open to the free commerce of the province, without hindrance or charge.

Taken in all parts, such was this contract and its objects. And as the motives of the parties enter decidedly into its construction, we have stated them in advance. The manifest design of the Baron was to become a large manufacturer of flour; to control the inhabitants and monopolize the wheat, throughout the territory designated for the colony. He did not propose to cultivate the soil himself, nor did he require land for this purpose; his grant in full property of the water-power necessary for grinding was all the property he required. Over other lands within the twelve leagues he sought control, but asked for no title to property in them. His first request to the Spanish government was in plain accordance with these views of the transaction; he solicited "that a district be designated about twelve leagues square, in which he may place the families he is about to bring in": and the request was granted, in the terms and for the purposes expressed by the petition. To hold that the language employed by the petition, and reiterated by the governor in reply, amounted to a title in property, would be a forced and unnatural construction, contrary to the objects proposed to be accomplished, and in violation of the known policy of the Spanish government; which was, to encourage population and agriculture, but to discourage speculation, by refusing to grant large districts of arable lands to single individuals.

If the decree of June 20, 1797, was intended to confer a title in full property, and the terms "destine and appropriate" meant to convey the same title, that was plainly given to the two bayous, what occasion could exist for such a careful proceeding to obtain these bayous in full property? The Bayou Barthelemi lies within the grant, and the assumption is extravagant that it was twice granted; once June 12, and again June 20, 1797.

Another consideration shows the manifest inconsistency of assuming that both grants were in full property. The grant of the bayous was on the express condition that at least one mill should be constructed within two years from that date, otherwise the grant should remain null. How could it stand annulled on failure to perform a subsequent condition, if the larger grant was also in full property, and included the bayous? In such case, the forfeiture would not result to the crown, but to Bastrop himself; being saved by the larger grant, including the bayous. And then, the twelve league grant having no condition in it, that of the bayous amounted to nothing, was idle, and useless.

In the next place, if the Baron had a perfect grant, the families brought in could only take titles from him as owner; the government having nothing left to grant. And yet these immigrant settlers applied to the Spanish government for titles, which were granted, and that at a time when the meaning of the contract could hardly be misunderstood; being only a couple of years after it was concluded.

An instance is found in the record, and was given in evidence below. April 1, 1799, Michael Rogers, a settler placed on the land by Bastrop, applied for a title, and during that year a perfect title was decreed by the Intendant Morales, according to the petition of Rogers.

Again, if the Baron could not by a conveyance make title to settlers, on what plausible pretence can it be assumed that he could convey in full property the whole-twelve leagues to Morehouse and others?

Furthermore, if Morehouse took the full legal title by his deed, on what ground can it be assumed that our government could defeat such fee-simple title in Morehouse, and his alienees, by making grants in fee to individual settlers, either coming in under Baron Bastrop or otherwise? And yet this has been uniformly done. For forty years and more, the claimants under this grant have stood by, announcing that they were fee-simple owners, and in possession of a perfect legal title, without an attempt to try the strength of their claim by suit. The manifest truth is, that the validity of this claim has been disavowed by the Spanish and American governments, and that the claimants had no confidence in it themselves; certainly not enough to risk a trial of it in a court of justice, as they might at all times have done, by petitory actions against obtruders. These references, however, to particular transactions and facts, whether found within or outside of the title-papers, are of little consequence, compared with the prominent and conclusive consideration, that a complete Spanish grant uniformly (so far as our knowledge extends), plainly, and in language the most direct and unequivocal, gave to the grantee the whole ownership to the land granted, for him and his successors; with power to sell the same at his will. An instance of such grant is given in 8 Howard, 314, attached to the case of Menard's Heirs v. Massey.

We repeat, that no language is employed in any part of the contract with the Baron de Bastrop, importing a grant in property. No expression is used by the Spanish governor conveying such intention. It is plainly a contract that a large district should be designated on lands belonging to the public domain, where the Baron might exercise certain exclusive privileges. In its nature and extent of grant this contract is identical with that made on the same day (June 20, 1797) with the Marquis de Maison-Rouge, appropriating a district of country adjoining to that set apart for the Baron de Bastrop, on which the Marquis agreed to establish settlers, and which lands were claimed under his will, on an assumption that the grant was complete and conferred absolute ownership. The principles governing the two contracts are the same. The claim set up under the Marquis de Maison-Rouge was adjudged not to have given any title, in the case of United States v. King, first reported in 3 Howard, 773; but which was finally decided in 1849, and stands reported in 7 Howard, 833. We deem the principles there adjudged as governing the case before us; and to the opinion of the court then delivered by the chief justice, and found in 7 Howard's Reports, we refer for a more full discussion on this description of claim. Nor would we again have considered the question involved, had there not been various circumstances connected with the cause now before us, and expressions used in the agreement made by the Spanish authorities with the Baron de Bastrop, that are supposed to be of a character to distinguish the cases, and were urged in argument as having done so; but which are found on examination to be immaterial.

On the whole, we are of opinion that the decree of the District Court should be reversed, and the petition dismissed; and so order.

The causes of United States against Louise Livingston and others, and United States against Thomas Callender's widow and heirs and others, claiming under Bastrop, are identical with the cause above decided; and for the reasons here assigned, it is ordered that both the decrees in these causes be reversed, and that the petitions be dismissed.

Mr. Justice McLEAN, Mr. Justice WAYNE, Mr. Justice McKINLEY, and Mr. Justice GRIER dissented.

Mr. Justice McLEAN.

I had hoped that the attitude in which this case was presented would have led to a different result from that which has just been pronounced. It appeared to me that there were grounds for such an expectation. The case is in chancery. It presents the broad basis of equity, and in this view, I supposed, could not be considered as having been ruled by the decision in the case of the United States v. King. That was a petitory action under the Louisiana practice, in the nature of an action of ejectment. In their opinion the court say: "If these defendants had possessed an equitable title against the United States, as contradistinguished from a legal one, it would have been no defence to this action. But no such title is set up, nor any evidence of it offered. The defendants claim under what they insist is a legal title, derived by the Marquis de Maison-Rouge from the Spanish authorities." And in the conclusion of their opinion, the court say: "For the reasons herein before stated, that this instrument of writing relied on by the defendants did not convey, or intend to convey, the land in question to the Marquis de Maison-Rouge, the judgment of the Circuit Court must be reversed, and the cause remanded," &c.

Now if the instrument did not convey the land by a complete title to the Marquis, it by no means necessarily followed that, under the usages of the Spanish government, an equity was not transferred by it. It is admitted that all instruments of writing, whether purporting to be grants or contracts, must be construed by the court. But if the instrument has been executed under foreign laws, and especially if it relate to the realty, parol evidence is heard both in regard to its form and effect. This principle is as old as the law itself; and it arises from that natural sense of justice which pervades all systems of jurisprudence. And if on such an investigation it should appear, that an interest less than a complete title was conveyed, the interest would be protected under the treaty of 1803, and the acts of Congress.

By the act of the 26th of May, 1824, made applicable to this case by the act of the 17th of June, 1844, claims are provided for "which might have been perfected into a complete title, under and in conformity to the laws, usages, and customs of the government under which the same originated, had not the sovereignty of the country been transferred to the United States." And the proceeding in the court is to "be conducted according to the rules of a court of equity." And the decree in regard to the title is to be "according to the law of nations, the stipulations of any treaty, and proceedings under the same, the several acts of Congress in relation thereto, and the laws and ordinances of the government from which it is alleged to have been derived." The treaty of cession stipulated that the property of the citizens should be protected. And if the claim now before us, under the Spanish law, could be denominated property, this court have jurisdiction, and the right should be maintained. On a mature examination of this whole case, I am brought to the conclusion that, under the Spanish government, the right now asserted would have been enjoyed by the Baron de Bastrop, his heirs and assignees.

He brought over from Europe, and settled on this grant, at least one hundred and eleven families, at an expense, probably, of from thirty to fifty thousand dollars. His labors and responsibilities were very great in carrying out his engagement with the government, and he would have completed it, without doubt, had not the importation of families been suspended, at the instance of the government, on account of the scarcity of funds. The enterprise was deemed of the highest importance by the Governor-General. In a letter to Filhiol, the commandant at Ouachita, dated New Orleans, 2d April, 1795, Carondelet says: "Your hopes are about to be satisfied." "We have just passed a contract with the Marquis of Maison-Rouge for thirty families of agriculturists," &c. "On the other hand, the Baron de Bastrop, a Hollander, has contracted also for a quantity of families who will come to us direct from Holland," &c. And he remarks: "According to this plan you see, Sir, that you will no longer be so isolated as heretofore, and that in a short time you will find yourself in a condition to make head against the savages," &c.

How favorably would such a consideration contrast with those on which immense tracts of land were granted, by the Spanish government, in East and West Florida, and which have been confirmed by this court. The construction of a saw-mill, the formation of a cow-pen, or other service, real or supposed, rendered to the public, was deemed sufficient to authorize a large grant of territory. This was the policy of that government, and, under the faith of the treaty and the acts of Congress referred to, it was sanctioned by this court.

For more than fifty years have the families brought from Europe by the Baron de Bastrop been in possession of this land. They occupied and improved it as their own, and, in the course of nature, their children and descendants may now be supposed to possess it. The right of each family was limited in the grant to four hundred arpents. This claim, being located and designated by boundaries, entitled each family to a particular tract, and some evidence of title was necessary, whether from the Baron de Bastrop, or, by his designation and consent, from the governor, would seem to be unimportant. In fact, it could have been only a mere allotment among the families in pursuance of the grant. Of this character was the allotment to Michael Rogers; it was a recognition of the grant to Bastrop.

The correctness of this statement is shown from a letter of Filhiol, dated 12th September, 1796, to the Marquis de Maison-Rouge, which says, referring to a letter from the Governor-General: — "His Excellency adds: I charge you also, Sir, in the absence of M. de Grand Pre, to oblige M. de Maison-Rouge to make choice of the four thousand arpents of land which are to be distributed to the thirty families which he is to establish."

It appears from the evidence, that about twenty-one thousand dollars have been paid in taxes upon about three sevenths of this grant, and it is supposed that a larger sum has been paid on the other four sevenths.

What was the nature of the title given to the Baron de Bastrop?

In his petition to the Governor-General, dated the 20th of June, 1795, he asks that there should be designated a district of about twelve leagues square," &c., "in order that, without the least obstacle or impediment, those families may proceed to settle upon them which he is going to introduce under the express condition that concessions of land are to be gratis; and that under no title or pretext can they exceed the quantity of four hundred arpents at most."

The decree of the governor the following day was: "Considering the advantages which must result from the establishment," &c., "the commandant of Ouachita, Don Juan Filhiol, will designate twelve leagues square, half on the side of the Bayou de Siar, and half on the side opposite Ouachita, for the purpose of proceeding to locate upon them the families which the aforesaid Baron may direct; it being well understood that to none shall there be given a greater concession of land than that of four hundred square arpents at most, gratis and free from all dues, inasmuch as the object of this establishment is to be only for the cultivation of wheat," &c. And the government is asked "to fix the number of families which the petitioner is to introduce." In the decree which followed, it is said: "The petitioner may introduce to the number of five hundred families." And the government undertook to pay the expense of conveying the families from New Madrid to Ouachita, and furnish them with provisions for six months, "Provided that, if, after the lapse of three years, the greater part of the establishment shall not have been made good, the twelve leagues square destined for the families which the Senor petitioner will send shall be occupied by the first families that may present themselves."

The expenses to the government under this decree being greater than its limited means would warrant, the Baron de Carondelet, on the 19th of June, 1797, gave an official paper to the Baron de Bastrop, stating, "whereas, on the part of the Senor Intendente, by reason of the scarcity of funds, the suspension of further remittance of families has been solicited until the decision of his Majesty, there should be no prejudice to you by the last paragraph of my decree, which expresses that, if, at the end of three years, the greater part of the establishment shall not have been found made good, the families which may present themselves shall be located within the twelve leagues destined for the establishment which you have commenced, and it shall only take effect two years after the course of the contract shall have again commenced, and the determination of his Majesty shall have been made known to you."

And on the 20th of June, in the same year, the Baron de Carondelet issued a concession, stating, "Whereas the Baron de Bastrop, in consequence of the petition, under date of the 20th of June of the year last past, and decree of the 21st of the same, has commenced the establishment of the Ouachita, which thereby he stipulated with the government, in order to avoid all obstacle, difficulty, and embarrassment hereafter, and that with all facility the families may be located, which, to the number of five hundred, the said Baron is successively and proportionally to introduce, or cause to be introduced, we have determined to designate the twelve leagues destined for said establishment in the terms, with limits, landmarks, and boundaries, and in the place which is designated, fixed, and marked out by the figurative plan and description, which go as a caption of this title, which are made out by the Surveyor-General, Don Carlos Trudeau, it having appeared to us to be thus most expedient to avoid all contestation and dispute, and approving them, as we do approve them, exercising the authority which the king has granted us, we destine and appropriate, in his royal name, the aforesaid twelve leagues, in order that the said Baron de Bastrop may establish them in the terms, and under the conditions, which are expressed in the said petition and decree." The boundaries of this grant are made certain by its calls, the figurative plan of Don Carlos Trudeau, the Surveyor-General, and an actual survey executed by McLaughlan.

Does this grant convey any title to the Baron de Bastrop, and if it does, to what extent?

The consideration which induced the grant was, the establishment of five hundred families within its limits. As each family was restricted to four hundred arpents, the five hundred would occupy only two hundred thousand acres, leaving eight hundred thousand within the grant unappropriated. In the first grant, if the greater part of the establishment should not be made good within three years, the first families that shall present themselves were to be received, as a part of the five hundred which were to be introduced by Bastrop. And as the pecuniary aid of the government was withheld, the above condition was suspended until the lapse of two years after the will of the sovereign should be made known.

Governor Bouligny, a contemporary, speaking of this grant, says: "Let us make the calculation upon a million of arpents, in round numbers. Bastrop has obliged himself to introduce and locate in this tract five hundred families of cultivators, giving them to each family a piece of land ten arpents front upon the Ouachita or Bayou Siar by forty arpents depth, which will make a superficies of four hundred arpents for each family, so that the five hundred families will occupy a surface of two hundred thousand arpents. So that there will be to him, in absolute property and lordship, eight hundred thousand arpents."

To suppose that the Baron de Bastrop would engage in such an enterprise, involving an immense expenditure of money, in addition to the great labor and responsibility of superintending the importation from Europe of five hundred families, would be unreasonable, and against the established usages of the government. The service was one of the greatest importance to the country, and it was favored by the sovereignty itself.

This is shown by the express sanction by the king of the contract made by the Baron de Carondelet with the Marquis de Maison-Rouge, to bring into the country thirty families, dated 17th March, 1795; and as a consequence of which there were subsequently granted thirty superficial leagues. The transaction with the Baron de Bastrop occurred about the same time.

It is true that Morales, being Intendant ad interim, and being under obligations to provide means to meet the expenditures arising out of these and similar grants, remonstrated to the king against the policy of making them. He says, in a letter to Don Pedro Varela y Ulloa, dated October 16th, 1797: "As an instance of what I here state, observe the contract between Baron de Carondelet and Baron de Bastrop, for the settlement of fifteen hundred Protestant families, in the one hundred and forty four square leagues of plain ground, in the district of Ouachita granted by the governor, on condition that the royal Hacienda should pay the expense of transporting those persons from New Madrid to their place of settlement, of maintaining them for the first six months," &c.; and he says it would cost the treasury $ 125,000, and suggests: "It is not probable that, if the Baron de Carondelet had held the obligations of the intendency, he would have rendered it liable for a demand which there was no means to satisfy." In consequence of this remonstrance, by a royal order, dated 22d October, 1798, the right to grant lands was transferred from the Governor-General to the Intendant.

It must be observed, if there be no error in the translation, that Morales was mistaken in stating the number of families, and that they were to be Protestants. In a letter dated the 25th of July, 1799, he particularly complains of the prodigality of Don Manuel Gayoso de Lemos in allotting large quantities of land to persons who could not even cultivate them," &c. But, he says, "to annul these grants would be productive of great difficulties, and this must be considered an evil without a remedy."

There is nothing in this change of policy, which was induced from a want of funds, to affect the rights acquired under the more liberal policy which preceded it.

But, it is said, the grant must be construed by its language, and not by extraneous facts and circumstances. This is correct as a general principle, but when we are called to construe an instrument, unknown to the laws with which we are familiar, and which was formed in a foreign idiom, and in accordance with usages and laws to which we are, in a great degree, strangers, it is wise and it is legal to follow the established construction of such an instrument under such laws.

That the grant in this case separates the land designated from the public domain, is clear to my mind; and if separated, has it not passed from the control of the sovereignty? Beyond the settlement of the five hundred families, the government had no demand on the grantee. This settlement being made, the condition of his grant is performed. And if the government failed, as was the fact, to advance the funds stipulated to be paid by it, and the condition was suspended, its non-performance to the full extent is not imputable to the grantee. He stands upon the grant, having done what the law required him to do. Two hundred thousand arpents of the grant are appropriated to emigrant families; eight hundred thousand remain, not to the government, for the grant has separated the entire tract from the public domain. The grantee is under no obligation, express or implied, to settle more than five hundred families; the remainder of the grant, under any construction sanctioned by law or justice, I think, remains to him.

There are no words in this instrument which convey a fee simple at common law, but by the civil law it gives to the grantee, in my judgment, a complete title. No technical terms are necessary, under the civil law, to constitute such a title. The intent of the parties is ascertained by the language of the entire instrument, and effect is given to it accordingly. This mode of construction commends itself to our reason and judgment more strongly than the technical forms of the common law. Whilst the latter are seldom understood by the uninstructed, the former cannot be misapprehended by an individual of ordinary intelligence.

In this grant words are used of strong and decisive import; words which, it is believed, show the intent of the grantor as fully as any that could have been adopted. "Exercising the authority which the king has granted to us, we destine and appropriate, in his royal name, the aforesaid twelve leagues." To destine is "to set, ordain, or appoint to a use, purpose, estate, or place." We are all "destined to a future state." "To fix unalterably by a divine decree, to appoint unalterably." The word appropriate, in the sense used, signifies, "to set apart for or assign to a particular use, in exclusion of all other uses"; "to claim or use by an exclusive right." No words of a more determinate character, to convey a complete title, could have been found in any language. The words "destinamos y apropiamos," as used in the original grant, mean, "to grant and deliver as property."

In the grant it is said, "We have determined to designate the twelve leagues destined for said establishment," &c. The five hundred families are named, "that the said Baron de Bastrop may establish them in the terms, and under the conditions, which are expressed in the said petition and decree." The intent of the grantor in this is plainly signified. The land granted is called the establishment, — the establishment of the Baron de Bastrop, which is destined and appropriated on condition that he shall establish thereon five hundred families, each having four hundred arpents. In the Spanish forms it is still called the establishment, indicating the terms on which it was granted. Under the Spanish laws and usages, the Baron de Bastrop was a poblador, meaning "one that peoples."

Under title 12, lib. 4, of the Recopilacion de Indias, there are several books exclusively devoted to colonization. The viceroys exercised the power and discretion of the king in granting lands, &c., and the governors-general, in the absence of the viceroys, exercised the same powers, and afterwards, also, the intendentes. There was no other limitation of this power "than that of not causing injury to third parties."

"If," says the law, "in that part of the Indies already discovered there be any sites or districts so good that it may be expedient to found settlements there, and any persons should apply themselves to making establishments and neighborhoods upon them, that they may do so with better will and greater usefulness, the viceroys and presidents may give them, in our name, lands, lots, and waters, according to the disposition of the land, so that it be not to the prejudice of any third person, and that it be for the time that it may be our will." Temporary grants were subsequently made perpetual.

The tenth law further provides: "Let the lands be divided without excess between discoverers and ancient pobladores and their descendants, who have to remain on the lands; and let the best qualified be preferred; and let them not have power to sell to church or monastery, or other ecclesiastical person."

I may hazard the assertion, without the fear of successful contradiction, that the remuneration given for colonization, in the Spanish colonies, was uniformly a grant of lands. And these grants were often made in the form of this grant to the Baron de Bastrop. Indeed, the face of the grant seems to me to admit of no other construction. The twelve leagues square were "destined and appropriated," that is, "granted and delivered as property." To whom? Not to the five hundred families only, for their rights are limited to two hundred thousand arpents. It was destined and appropriated for or to the establishment, including the five hundred families and the Baron de Bastrop, the poblador. There is no want of precision in the grant. The rights of the families being limited, the remainder belongs to the Baron de Bastrop, in full property, subject only to the conditions expressed.

This is the result to which I have been brought by a careful investigation of this case. And I am the more confirmed in this opinion, as it concurs with that which has been expressed by three of the most learned and eminent jurisconsults in Spain. J.F. Pacheco, Manuel Cortina, and S. de Olozaga stand in the front rank of Spanish lawyers. Cortina was formerly minister of justice, the other two have both been prime-ministers. I make these statements from the highest authority of Spain in this country.

The opinions referred to are not authenticated so as to make them evidence. But as I have arrived at the same conclusion to which they came on a construction of the grant, I will extract from their opinion one or two sentences. "Destining and appropriating the twelve leagues to the establishment of the Baron de Bastrop, means the delivering them to his proprietorship and dominion, he complying with the conditions with which they were petitioned for and granted." And again: "In it [the grant] are employed the words properly called effective, `to destine and appropriate,' and the last, especially, as well legally as vulgarly, signifies, `to make the property of,' so that under whatever aspect the question is looked at, the twelve leagues, by virtue of the said concession, became the property of the Baron, and the property which he acquired in them was the allodial and complete property recognized by our laws, without other trammels than those in the general conditions imposed upon all pobladores and the special ones of this case; and it appears that, if these last were not fully complied with, it was not through the fault of the Baron, but through obstacles opposed to him by the authorities of the colony themselves. His failure of compliance cannot prejudice or diminish in the smallest possible degree the right which, by the concession, he undoubtedly acquired."

In this opinion I have the concurrence of my brother McKinley, whose views are embodied in it with my own.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, it is the opinion of this court, that the title set up of the petitioners is neither a legal nor equitable claim, and is null and void. Whereupon, it is now here ordered and decreed by this court, that the decree of the said District Court in this cause be, and the same is hereby, reversed and annulled, and that this cause be, and the same is hereby, remanded to the said District Court, with directions to dismiss the petition of the claimants.