United States v. City of Philadelphia/Dissent McLean

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.