United States v. Philadelphia and New Orleans, 52 U.S. 609 (1851)

52 U.S. 609
11 How. 609
13 L.Ed. 834

THE UNITED STATES, APPELLANTS,
v.
THE MAYOR, ALDERMEN, AND INHABITANTS OF
THE CITIES OF
PHILADELPHIA AND NEW ORLEANS.
December Term, 1850
1

THIS was an appeal from the District Court of the United States for the District
of Louisiana.

2

It was a petition filed by the corporate authorities of the cities of Philadelphia
and New Orleans, claiming a large body of land under a grant alleged to have
been made by the Baron de Carondelet, the Spanish governor of Louisiana, in
1796 and 1797, to the Baron de Bastrop.

3

All the title-papers are set forth in the opinion of the court, and it is
unnecessary to repeat them. The derivation of title to the petitioners in this case
is explained in their petition, which, being short, may be inserted.

4

'To the Honorable T. H. McCaleb, Judge of the District Court of the United
States for the District of Louisiana.

5

'The petition of the Mayor, Aldermen, and Citizens of Philadelphia, and of the
Mayor, Aldermen, and Inhabitants of the City of New Orleans, respectfully
represents:

6

'That in the year 1795 or 1796, in the now State of Louisiana, of which the
Baron de Carondelet was governor-general and vice-patron, a grant was made
to the Baron de Bastrop, by the proper authorities, of a certain tract of land,
twelve leagues square, lying on the Ouachita and Bayou Siard, to be located
and surveyed, which was done in due and legal form, as by the annexed plot of
survey, marked A, will more fully appear, which was afterwards approved and
confirmed; your petitioners, for fuller information, refer to the documents
published by authority of Congress, in Vol. II. State Papers, title Public Lands,
page 772, No. 40; as also to the volume of land laws, published by Matthew St.
Clair Clarke, page 951, &c., &c.

7

'Your petitioners further show, that on or about the 25th day of January, 1804,
the said Baron de Bastrop conveyed to a certain Abraham Morehouse two
thirds of the said tract, which was afterwards, by a compromise between the
said Bastrop, Morehouse, and a certain Charles Lynch, modified so that
Morehouse became entitled to four tenths, and Lynch to six tenths of said grant;
which said six tenths were afterwards conveyed to Edward Livingston, on the
18th day of September, 1807, as by documents marked B, C, D, E, and F,
respectively, will appear.

8

'And they also show, that on or about the 5th day of March, 1810, at a sale
made by order of T. C. Lewis, parish judge of the parish of Ouachita, 50,000
acres of the part assigned, and belonging to Abraham Morehouse, were seized
and sold for taxes, when a certain Andrew Latting became the purchaser, and
afterwards transferred to Andrew Morehouse and George Y. Morehouse, sons
and lawful heirs of the said Abraham, and to Sophia L. Morehouse, Charles F.
Morehouse, Ann M. Morehouse, and Eliza C. Morehouse, children also of the
said Abraham, each the amount of 8,000 acres out of the 50,000 sold for taxes.
That in 1813, the said Morehouse died, and thereby the remainder of the said
property passed to his wife, Abigail Young, and her two sons, Andrew and
George, and that on or about the 13th of January, 1824, Stephen Girard
purchased the shares of said Sophia L., Charles F., Ann M., and Eliza C., and in
May, 1825, he purchased of George the 8,000 so to him conveyed; that the
2,000 remaining were, by the said Latting, sold to Nathan Morse, in his own
right and as attorney for R. R. Goelet, who conveyed the same to a certain
Thomas Lovell, who sold them to Stephen Girard, as will more fully appear by
the documents herewith filed, and marked G, H, I, J, K, KK, L, M, N, O, P, Q,
R.

9

'That in the autumn of the year 1815, Andrew, the elder son, died, unmarried
and without issue, whereby his estate passed to his mother, Abigail, and his
surviving brother, George.

10

'That the said George, as well in his own right as in virtue of a power of
attorney, duly executed by his mother, Abigail, constituted and appointed a
certain William Griffith, of Burlington, in the State of New Jersey, their agent
and trustee, for the purpose of selling and disposing of their interest in the said
lands, which he accordingly did, on or about the 29th of January, 1822, to the
said Stephen Girard, James Lyle, and Robert E. Griffith; as also of 10,000 acres
of the same parcel, held by the said Wm. Griffith and Richard S. Coxe, of
Georgetown, District of Columbia, about the 23d of January, 1824; that
afterwards, viz. at the October term, 1827, of the Seventh Judicial District
Court, in the parish of Ouachita, a partition was decreed between the said
Girard, Lyle, and Griffith, whereby the portion of Girard was separated and set
apart, as by said decree and the documents marked Q, R, S, T, U, V, W, and X,
herewith filed, will more fully appear. And your petitioners further show, that
the portion assigned, as above stated, to Edward Livingston, an amount of
12,500 acres, was, by the said Girard, purchased, as per act herewith filed, and
marked AA, about the 6th of November, 1819, from a certain John Carrier, of
Baltimore, who purchased it from Samuel McKean of said city, being part of a
larger parcel conveyed by the said Edward Livingston to Stephen Wante, by act
marked CC.

11

'And they further show, that on or about the 22d of November, 1824, the said
Stephen Girard purchased from John Hughes, of the parish of Ouachita, 4,300
acres of the same land, which said Hughes had purchased at sheriff's sale,
being a part of that assigned to Andrew Morehouse, as appears by the
document marked DD, herewith filed.

12

'And they further show, that on or about the 9th day of February, 1824, the said
Stephen Girard purchased at sheriff's sale, in the case of Brooks, Syndic, v. G.
Hamilton, 23,694 acres, which the said Hamilton purchased from Andrew Y.
Morehouse, as by document EE, herewith filed, more fully appears.

13

'That on or about the 11th day of February, 1825, the said Stephen Girard
purchased from Cesar McGlaughlin 4,000 acres of the same parcel, which the
said McGlaughlin had purchased at the sheriff's sale in the said suit of Brooks,
Syndic, v. Hamilton, which land the said Hamilton had acquired from the said
Andrew Morehouse, in proof whereof he files the document FF.

14

'That on or about the 29th of September, 1807, the said Edward Livingston
transferred to John Adair a portion of said lands, amounting to 75,000 acres.

15

'That on or about the 17th of October, 1807, the said John Adair conveyed to T.
B. Franklin, of Ouachita, 2,340 acres of said land; and by act bearing date 11th
February, 1828, the said T. B. Franklin conveyed the same to Stephen Girard,
as per acts marked GG, HH, II, herewith filed, will more fully appear.

16

'That by act bearing date 23d February, 1808, the said Adair sold the Curry
10,000 acres of this part, which Curry conveyed to the said Girard on or about
the 9th day of March, 1829; and, lastly, that on or about the 10th day of July,
1827, the said John Adair conveyed his remaining interest, amounting to 36,549
arpents, to the said Stephen Girard, whereby the latter became possessed of all
the portion conveyed by the said Edward Livingston to the said John Adair; all
which will more fully appear by documents LL, MM, and NN.

17

'Your petitioners further show, that the said Stephen Girard, having first made
his will, departed this life on or about the ___ day of _____

18

'That by his said will, which has been duly proved, and a copy of which is
herewith filed, and marked OO, he bequeathed to your petitioners the whole of
his above-described property; from all which acts and deeds it results that your
petitioners are the true and lawful owners of the said above-described portions
of the Bastrop grant; they allege that there is no other person or persons
claiming the same, or any part thereof, by a different title from that of your
petitioners; nor are there any person or persons holding possession of any part
thereof otherwise than by the lease or permission of your petitioners. But that
the United States deny their title thereto, and claim the whole of the lands
contained within the said Bastrop grant as part of the public domain.

19

'That the said title of the Baron de Bastrop has been partially submitted to the
board of land commissioners, and by them reported on unfavorably.

20

'Wherefore your petitioners pray that the validity of their title may be inquired
into and decided upon; to which purpose the United States may be cited by
their representative, the district attorney, and that they may be confirmed in
their said title, with all other and further relief.

21

'GEO. STRAWBRIDGE,

22

P. SOULE,

23

Of counsel for the cities of Philadelphia and N. Orleans .'

24

There were ninety-six pages of exhibits filed with the petition. It is not
necessary to give the substance either of them or of the testimony which was
afterwards collected by the petitioners and the United States, because the
question was decided entirely upon the construction of the grant.

25

In the progress of the case an order was made, on the motion of the claimants,
for a jury to try certain disputed facts, the court reserving to itself 'the decision
upon the question of the validity or sufficiency of said grant under the colonial
laws and regulations of Spain, in force in Louisiana at the date of the grant.'

26

On the 8th of December, 1847, the following proceedings took place.

27

'The trial of this cause was to-day resumed. The argument for the plaintiffs was
opened by H. Strawbridge, Esq., and closed by P. Soul e, Esq.; for the
defendants, by Thomas J. Durant, United States District Attorney. The
argument being closed, the court charged the jury; Silvain Peyroux being
appointed foreman, they retired to consider of their verdict.

28

'After consultation, they returned into court with a verdict in the words and
figures following, to wit:——

29

'From and according to the evidence adduced in this case, we, the jury, find the
following verdict:——

30

'1. That, in the year 1796 and 1797, a grant of twelve leagues square of land, on
the waters of the Bayou Liard or Siar and its vicinity, has been made by the
Baron de Carondelet, as Governor-General of Louisiana, in favor of the Baron
de Bastrop (according to the copies and plans thereof produced by the plaintiffs
in evidence).

31

'2. That the location of said grant was, in pursuance of the orders of said
governor, designated by Don Juan Filhiol, commandant of Ouachita, or by Don
Carlos Laveau Trudeau, Surveyor-General of the Province of Louisiana; and
that said Baron de Bastrop did, with the consent and approbation of the
grantors, take possession of the land so granted, and proceed in carrying out the
objects of said grant.

32

'3. That the conditions annexed to said grant, particularly that of introducing a
given number of families and settling them on said grant, were fulfilled as far
as the government could allow the said Bastrop, and that if said conditions
were not fulfilled in whole, the non-fulfilment thereof was owing to the act and
order of the grantors.

33

'4. That a plan of survey of said grant was made by Carlos Laveau Trudeau,
Surveyor-General of the Province of Louisiana, and was confirmed in the year
1797 by the Baron de Carondelet, Governor-General of said Province.

34

'SILV. PEYROUX Foreman of the Jury.

35

'New Orleans, 8th December, 1847.'

36

The cause was then taken up by the court. The attorney for the United States
filed a supplemental answer, denying the right of the petitioners, to which a
general replication was put in.

37

On the 23d of March, 1848, the trial of the cause was commenced before the
court; the testimony was submitted to the court, and the argument of counsel on
the part of the plaintiffs and defendants was concluded.

38

On the 31st of May, 1848, the following judgment was rendered, and entered of
record:——

39

'This cause came on to be heard at the December term of the court, and was
argued by counsel; and thereupon, upon an attentive consideration of the law
and evidence, and the court being satisfied that the concession of twelve
leagues square of land, situated on the waters of the River Ouachita and the
Bayous Bartholomew and Siard, in the Province of Louisiana, made in the
years 1796 and 1797, by the Baron de Carondelet, then Governor-General of
said Province, to the Baron de Bastrop, and commonly known as the 'Bastrop
grant,' was a good, valid, and lawful grant to the said Baron de Bastrop, by a
legal title in form, made by the Spanish authorities, and was protected and
secured to him as his private property by the treaty between the United States
and the French republic of the 30th of April, 1803.

40

'That the mayor, aldermen, and inhabitants of the cities of Philadelphia and
New Orleans have proved a good title in themselves to those portions of said
'Bastrop grant' claimed in their petition, derived by various mesne conveyances
from the original grantee and owner, the Baron de Bastrop.

41

'It is ordered, adjudged, and decreed, that the mayor, aldermen- and inhabitants
of the cities of Philadelphia and New Orleans, in their several corporate
capacities as cities, be declared the true and lawful owners of, and entitled to
recover from the United States, the following-described tracts of land situated
within the limits of the said grant, and be for ever quieted and confirmed as
against the United States in the ownership and possession of the same, to wit:
——

42

'Thirty-two thousand arpents of land acquired by Stephen Girard from Charles
F. Morehouse, Ann M. Morehouse, Lucretia C. Morehouse, Eliza C. Sterling,
and the heirs of Sophia L. Morehouse, by act of the 13th of January, 1824,
before Oliver J. Morgan, parish judge and ex officio notary public for the parish
of Ouachita.

43

'Two thousand arpents of land, more or less, acquired by Stephen Girard from
Thomas Lovell, by act of the 9th of March, 1825, acknowledged before C.
Pollock, notary public in and for the city of New Orleans, and ratified by said
Lovell by act of the 3d of October, 1826, before Samuel G. Raymond, notary
public in and for the State of New York.

44

'Eight thousand arpents of land acquired by Stephen Girard from George Y.
Morehouse and Martha, his wife, by act of the 28th of April, 1825, before
Thomas Adams, notary public in and for the State of New Jersey, at Burlington,
in said State.

45

'Seventy-four thousand one hundred and sixty-seven arpents of land, more or
less, acquired by the said Stephen Girard by a decree of partition between said
Girard, James Lyle, and Robert E. Griffith, rendered in the year 1827 at the
October term of the Seventh Judicial District Court for the parish of Ouachita,
by the Honorable J. H. Overton, judge, in the suit entitled Stephen Girard v.
Robert E. Griffith and the Representatives of James Lyle. The whole, according
to the judgment and figurative plans of partition, filed in the aforesaid suit.

46

'All the share of Stephen Girard (ten twenty-first parts) in that part of four
hundred and twenty-six thousand arpents of land, more or less, which has not
been comprised in the aforesaid decree of partition, rendered in October, 1827,
and which was acquired by Stephen Girard, James Lyle, and Robert E. Griffith,
as tenants in common, from George Y. Morehouse and Abigail Morehouse, and
their trustee William Griffith, by conveyance of the 29th of January, 1822,
acknowledged on the same day before Thomas Adams, notary public in and for
the State of New Jersey, at Burlington, in said State.

47

'Twelve thousand five hundred arpents of land acquired by Stephen Girard
from John Carriere and Mary, his wife, by act of the 6th of November, 1819,
before John Gill, notary public at Baltimore, in the State of Maryland.

48

'Four thousand three hundred arpents of land acquired by Stephen Girard by
virtue of an act made before Oliver J. Morgan, parish judge and ex officio
notary public for the parish of Ouachita, on the 22d of November, 1824.

49

'Twenty-three thousand nine hundred and sixty-four arpents of land acquired by
Stephen Girard from George Hamilton, by virtue of a judicial sale thereof made
by Jonathan Morgan, sheriff of the parish of Ouachita, on the 9th day of
February, 1825, by virtue of a writ of execution issued at the suit of the syndics
of Edward Brooks.

50

'Four thousand arpents of land acquired by Stephen Girard from Caesar
McLauchlin by act of the 11th of February, 1825, before Oliver J. Morgan,
parish judge and ex officio notary public for the parish of Ouachita.

51

'Two thousand three hundred and forty arpents of land acquired by Stephen
Girard from Thomas B. Franklin, by private act of the 11th of February, 1828,
recognized on or about the 14th of March, 1828, before Oliver J. Morgan,
parish judge and ex officio notary public for the parish of Ouachita.

52

'Thirty-six thousand five hundred and forty-nine arpents of land, more or less,
acquired by Stephen Girard from John Adair, by act of the 10th of July, 1822,
before Oliver J. Morgan, parish judge and ex officio notary public for the parish
of Ouachita.

53

'Ten thousand acres of land acquired by Stephen Girard from John Casey, by
act of the 9th of March, 1829, before Oliver J. Morgan, parish judge and ex
officio notary public for the parish of Ouachita. Judgment signed June 12th,
1848.

54

'THEO. H. McCALEB, U. S. Judge.'

55

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. Soul e, on behalf of the appellees, with whom was Mr.
John Sergeant, representing the city of Philadelphia.

56

Mr. Crittenden made the following points.

57

1st. That the original concession to Bastrop (if any was ever made), or if not the
original, then at least an official and authentic copy thereof, ought to have been
produced, and was indispensable and essential to the maintenance of the claim
of the complainants, and that without it their bill ought to have been dismissed.

58

2d. That the testimony which was offered and admitted for the purpose was
inadmissible, and if admissible, was insufficient to establish the alleged grant to
Bastrop, to prove its loss, or to warrant the introduction of secondary evidence
for proof of said grant. The more, especially, as the claimants had not, in their
petition, alleged its loss, or their inability to produce it, and had not, therefore,
by their allegations, laid any foundation for the introduction of the testimony
they were allowed to give.

59

3d. That the evidence which was offered and admitted to go to the jury, as to
the former existence of said grant, or as to its loss, was illegal, and ought not to
have been admitted on the trial; and, furthermore, that the verdict is not
warranted by the evidence, and is in itself bad; finding conclusions of law,
instead of matters of fact.

60

But, 4thly and chiefly, it will be insisted that the concession relied on by the
claimants is not a concession to Bastrop, under whom they claim, and confers
on him no title to the land in controversy. It is in its object and purpose, and in
all material particulars, if not in terms and words, identical with that which was
relied upon as a concession to the Marquis de Maison-Rouge, in the case of the
United States v. King and Coxe, and was therein adjudged and decided by this
court not to be a grant or concession to the said Maison-Rouge. 7 How. 833.

61

The decision made in respect to the Maison-Rouge concession is supposed to
be in point, and decisive against the pretended concession to Bastrop, and
against the present claimants.

62

In addition to his own argument, Mr. Crittenden sanctioned and adopted the
following view, prepared by the District Attorney, which the reporter prefers to
his own notes of the oral argument.

63

Every plaintiff who brings his suit against the United States under the act of
26th May, 1824, must show a claim to land founded either on a grant,
concession, warrant, or order of survey. The plaintiffs here allege their claim to
be founded on a grant from the Baron de Carondelet to Bastrop; and if he made
such a grant, it can scarcely be denied that their claim is good. His authority
was competent; the date of the instrument brings it within the time prescribed
by the first section of the act above quoted, and Bastrop was an inhabitant of
the province at the time. It is believed that a fair examination of the instrument
relied on will bring us to the conclusion, that there was not, and was not
intended to be, any grant of land personally to Bastrop; and that he himself
never asked for any land; that what is alleged to be a grant of land to Bastrop is,
in truth, nothing but a contract entered into with him by the colonial
government, whereby, for certain benefits and advantages stipulated in his
favor, he was to undertake the personal trouble of bringing into the province, at
the expense of the government, five hundred families of French royalists, to be
settled on a defined tract of country, twelve leagues square, for the purpose of
cultivating wheat; each of the families to receive a grant of four hundred arpents
of land, and Bastrop to enjoy the monopoly of grinding the wheat at the
flouring-mills he had already established on the Ouachita, and exporting flour
free of duty to Havana; but not the slightest mention is made, either expressly or
by implication, of any land granted to Bastrop himself.

64

The documents on which this claim rests, besides being in the record as already
noted, may be found in a convenient shape in Matthew St. Clair Clarke's
compilation of the laws of the United States in relation to Public Lands.
Washington, Gales & Seaton, 1828, p. 951 et seq.

65

The first is the petition of Bastrop to Carondelet. This states Bastrop's intention
of proceeding to the United States to procure the emigrant families; urges the
necessity of the goverment's designating a district twelve leagues square, in
which the families should be placed; points out the object of their introduction,
to cultivate wheat and prevent the introduction of negroes; asks permission to
export the flour to Havana; and declares that the government should pay the
expenses of bringing in the families.

66

Now, this is not a petition for a grant of land, nor any thing like it; there are no
words in the document by which the Baron de Carondelet, or any one else
reading it, could possibly understand that Bastrop desired any land for himself.
It will be seen by it that Bastrop had formed an establishment on the Ouachita.
'The introduction of negroes and the making of indigo in that district,' he says,
'would cause your petitioner irrevocably to lose the expenses of his
establishment.' His object is to increase the population in the vicinity with such
settlers as would be useful to him, viz. those who cultivate wheat; a grant of
land, no matter how large, to himself would not answer his purpose; it is not
land he wants, but families; and he has not means, a royalist refugee himself, to
bring these families into the province; he therefore prays the government to pay
the expenses of their transportation hither. But the families themselves would
not come simply for the purpose of promoting the interested views of Bastrop.
What then? He prays the government to induce them to come by a gratuity of
four hundred arpents of land to each family. It is plain, then, that Bastrop does
not ask for any land for himself in so many words, nor does he by implication;
but he asks that concessions should be made to the settlers. Now, had he
intended to ask for the land for himself, why should he pray that the
government should make concessions to the settlers out of the very land which
was all to be given to him, and when he himself could, if his pretended prayer
were granted, give them as much as he pleased himself? With what grace could
he think of asking for so unusual and enormous a grant of land for himself,
when not only was he offering to do nothing personally for the government, but
is calling upon it to incur heavy expenses in bringing in the immigrants, whose
labor was to be highly beneficial to himself, and to grant him peculiar
commercial favors and privileges not accorded to other inhabitants of the
province. Bastrop, then, asks for no land for himself. Does Carondelet grant
him any?

67

The next document (on page 952) will answer. It is the decree of Carondelet on
the foregoing petition, and, as was usual, indorsed on the petition itself. Its
terms are entirely responsive to the prayer. There is not one of them, and no
word of them, indicating a grant of land to Bastrop himself personally, or
insinuating in the lightest degree that Carondelet supposed that Bastrop had
asked him for any land. He recognizes the advantages which will flow from
Bastrop's project; directs the commandant of Ouachita to designate the twelve
leagues square,—not which are to be granted to Bastrop, and such would have
been the expression had a grant been intended,—but 'for the purpose of placing
thereon the families which the Baron may direct'; undertakes to pay the
expenses of the families, and limits the number to be brought in to five hundred.
The conclusion of this decree is fully expressive of the intention of the
governor, and demonstrates, if farther proof were indeed necessary, that he had
none of giving land to Bastrop. The words are these: '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 first present themselves.' Here we have
the destination of the twelve leagues square plainly stated, and it is not to be the
property of Bastrop.

68

The next document will be found on the same page, 952. It is in the form of an
approval by Carondelet of the location of the twelve leagues square, made by
the surveyor-general, Trudeau, and declares that 'we,' the governor, 'do destine
and appropriate the aforesaid twelve leagues, in order that the said Baron de
Bastrop may establish there, in the manner and under the conditions expressed
in the said petition and decree.' This was the order given by Carondelet after
the survey had been made, and, equally with the decree upon Bastrop's petition,
contains no words that can be construed into a grant of land to him. If these
instruments, on which alone the plaintiffs' claims rest, so far as the twelve
leagues square are concerned, contain no words of grant, nor any words
equivalent thereto, how can plaintiffs recover?

69

By the common law, 'Grants, concessions,' are 'the regular method of
transferring the property of incorporeal here-ditaments, or such things whereof
no livery can be had.' 'It therefore differs but little from a feoffment, except in
its subject-matter; for the operative words therein commonly used are dedi et
concessi, have given and granted.' See 2 Blackstone's Commentaries, 317. So 'a
feoffment' 'is the most ancient method of conveyance, the most solemn and
public, and therefore the most easily remembered and proved. And it may be
properly defined a gift of any corporeal hereditament to another.' 'The aptest
word of feoffment is do or dedi.' See 2 Blackstone's Commentaries, p. 310. The
common law author here lays down, not only the principle of his own system,
but of universal reason; for it is a maxim, applicable to all systems and known
in all idioms, that no one is easily to be presumed to give away what belongs to
him. Nemo facile presumitur donare. Governed by the reason of this maxim,
the common law requires expressly, in the concession of corporeal or
incorporeal hereditaments, absolute words of gift; and, governed by the same
reason, every tribunal, no matter where sitting or under what system, will
decide that A has not given any thing to B by written conveyance, unless the
instrument uses words of gift, or words implying gift, and equivalent to it.
Measured by this standard, the instrument relied on as a grant of land to Bastrop
utterly fails.

70

It would be quite impossible to find any instrument, which has ever been
decided by the courts of the United States to be a valid grant of lands, that did
not contain the express words of grant. To support this position, any case may
be looked into which came up to the Supreme Court of the United States from
Florida or Missouri, under the laws permitting parties to bring suit to test the
validity of their claims to lands in those States. We may cite U. States v.
Arredondo, 6 Peters, 692; Same v. Percheman, 7 Ib. 54; Same v. Clark, 8 Ib.
440; Same v. Richard, 8 Ib. 471; Same v. Hernandez, 8 Ib. 485; Same v.
Delassus, 9 Ib. 123, 124; Same v. Clark, 9 Ib. 168; Same v. Burgoin, 13 Ib. 85;
Same v. Arredondo, 13 Ib. 133; Same v. Rodman, 15 Ib. 136; Same v.
Delespine, 15 Ib. 231.

71

Every one of these has, in express terms, what the Bastrop claim has not, either
expressly or by implication,—direct words of grant.

72

Under the system of rules and regulations adopted by Spain for the settlement
and disposal of the public lands of her colonies, contracts between the
government and individuals for the introduction of settlers, of which this
contract with Bastrop is one, were well known. They sometimes contained a
grant of land to the contractor, and sometimes not; the former was an incident,
and not of the essence of the contract, and many were made without it. As an
illustration, attention is called to the case of the United States. v. Arredondo and
others, 6 Peters, 692. In this case, Arredondo and son present a petition to the
Intendant, Don Alexander Ramirez, offering to form an establishment of two
hundred families at a place called Alachua, which they undertook to bring in at
their own cost, provided they should obtain, in absolute property, a grant of
four leagues of land. Whereupon Almirez issues his decree, in which he uses
these words: 'I grant to them the part which they solicit of the said tract
belonging to the royal domain.'

73

Here is the most striking contrast to, or indeed the very opposite of, the petition
and decree in the Bastrop case. Arredondo asks for a grant of land to himself;
Bastrop does not. Ramirez grants to Arredondo a tract of land. Carondelet uses
no such word in relation to Bastrop. Bastrop and Arredondo are both petitioning
officers of the same government, acting under the same system of laws; but
their petitions are different, and the decrees are different. How, then, can they
both be made to mean the same thing?

74

In looking further into the Bastrop papers (see Laws relating to the Public
Lands, p. 953), we find a petition from Bastrop to Carondelet, dated New
Orleans, June 12, 1797, fully two years after the original petition praying to be
allowed to bring in his settlers, and in this 'he begs a grant, along the Bayou
Bartholomew from its source to its mouth, of six toises on each bank, to
construct upon them the mills and works he may find necessary,' &c.; and on
the same page is found the decree of Carondelet on this second petition, saying:
'I grant him, in the name of his Majesty, and by virtue of the authorities which
he has conferred upon me, liberty to the Bayou Siar.' '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.' Now, if there were nothing else, this
alone would be conclusive against the construction attempted to be put upon the
petition of Bastrop and decree of Carondelet in 1795, by which the plaintiffs
claim a grant of twelve leagues square; for on examining the plat of survey of
Trudeau of the said twelve leagues square, it will be found that this very Bayou
Bartholomew runs right through the middle of it. Hence the fact is clearly
demonstrated, that the proceedings in 1795 were not a grant of land, because, if
granted to him already in 1795, Bastrop certainly would not pray, in 1797, for a
grant of six toises on each side of the Bayou Bartholomew, as the decree in
1795 would already have given him, not only six toises, but many miles deep
on both sides of that bayou. Note, too, the mode in which Bastrop asks for these
six toises; he thinks it necessary to apologize for making so large a demand.
'This request, Sir,' says he, 'will not be considered exorbitant, when you are
pleased to observe that your petitioner, who will expend in these works twenty
thousand dollars, will be exposed, without these grants to lose all the fruits of
his labors.' How ridiculous to suppose that a man, who had already asked for
and obtained one hundred and forty-four square miles, would think it necessary
to excuse himself for making a modest and reasonable application for six
toises! How still more ridiculous to suppose that a man, who had already
obtained a grant of twelve leagues square, would within two years apply for a
grant of six toises of the very same land, included in the very same twelve
leagues square.

75

The foregoing considerations would appear to be conclusive against the
plaintiffs' claim; but another may be added, of importance not only in this, but
in many other suits brought against the United States. If this be, as plaintiffs
allege, a grant to Bastrop, was the grant perfect or inchoate at the date of the
cession of the country to the United States? If the grant were perfect before that
time, then it does not come under the act of 26th May, 1824. Such a grant was
protected by the treaty of Paris; it had no need of an act of Congress to assist it;
it has been repeatedly decided by the tribunals of Louisiana, and the principle is
recognized by the Supreme Court of the United States, that a party claiming
land by virtue of a Spanish or French grant, perfected before the cession, could
maintain successfully his action of ejectment against a possessor under a
subsequent title, even if that title were a patent from the United States. The act
of 1824, therefore, was not intended to afford parties an opportunity to sue the
United States in cases where those parties could have relief against individuals
in possession, but to grant a remedy to those whose rights were not perfected at
the date of the treaty, and whose claims were of such a character as, though
imperfect, were binding on the conscience of our predecessors; and to those
whose claims, even when perfect grants, were derived from the officers of
Spain who remained in possession of the country subsequently to the treaty of
St. Ildefonso, up to the date of the actual surrender of the province to the
authorities of the United States, all such grants, without exception, having been
declared null and void, except certain cases of actual settlers, by the stringent
provisions of the 14th section of the act of March 26th, 1804, entitled 'An Act
erecting Louisiana into two Territories, and providing for the temporary
government thereof.' 2 Statutes at Large, 287.

76

But if this claim of Bastrop were only an inchoate grant at the time of the
cession, then it is incumbent on the plaintiffs to show that it was prevented
from being perfected by the transfer of the country to the United States; for the
first section of the act of 26th May, 1821 (4 Statutes at Large, 52), provides,
among other requisites of the claims whose validity may be tested in the
District Courts of the United States, this one,—that they '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 county been transferred to the United States'; showing that
Congress only intended the United States to be sued (for this is a law which
must be construed strictly in favor of the government) in those cases where the
transfer of the country prevented the perfection of the plaintiff's title. Now it is
incumbent on the plaintiffs to show that such was the fact. In the present case,
however, it is clear that, as the Spanish officers were in possession of the
country during more than eight years after the commencement of Bastrop's
proceedings, if he ever had a grant, he could within that time have got it
completed, and as he did not, the cause must lie in some other circumstance
than the transfer of the sovereignty to the United States; he fails, therefore, in
one of the essential features of all suits that can be brought under this act of
Congress.

77

On the part of the appellees there were three elaborate briefs filed, by Mr.
Strawbridge, Mr. Soul e, and Mr. Sergeant, and the case was fully argued
orally by the two first-named counsellors. From all these materials, the reporter
is perplexed to make a selection to present to the reader. Each of the counsel
covered the whole ground in his argument. The two most essential points were,
1st, the power of the Governor-General to make such a grant, and the laws
under which it was made; and 2d, what was the nature of the contract or grant.
As bearing more particularly upon the first, the views of Mr. Strawbridge are
presented, and upon the second, those of Mr. Soul e.

78

After examining the various muniments of title Mr. Strawbridge proceeded as
follows.

79

Such are the title-deeds proper of the 'Bastrop grant.' To any person conversant
with the ancient Spanish laws, its character and object are unmistakably
obvious. Philip Henry Neri de Bastrop was what is termed a poblador or
colonizer. The word, as defined by Selva, signifies 'he who peoples; founder of
a colony,—urbium seu coloniarum conditor.' His contract was of a kind
familiar to the laws of Spain. It was the policy of that country, as it is now the
policy of our own, to encourage the population of her vast and magnificent
realms, which lay almost valueless until their resources could be developed
under the influence of civilization. One of the most ready, as well as least
expensive, means of effecting this object was, by granting large tracts of land to
the hardy and enterprising adventurers who were willing to follow fortune into
the unexplored wilderness of the New World, whether singly or bringing
followers in their train. To such, the reward would naturally be proportionate to
the services rendered. Every man became an acquisition to the country, and as
land cost nothing to the crown, it was liberally bestowed. To men of note, or
eminent for their services, a province formed no very generous guerdon. Cortes
received a principality; other conquerors, discoverers, and colonizers were
rewarded with grants of various extent and value. The solitary emigrant, even
without friends or influence, had only to ask in order to receive, on easily
performed conditions, such as actual cultivation and occupancy, an ample
property in fee simple to him and his heirs for ever. All grants were held by
mere allodial tenure, and were almost invariably irrevocable; always so in the
absence of any clause to the contrary. They were greater in New than in Old
Spain.

80

'Our ancient legislators,' writes Guarinos, Historia de Vinculos y Mayorazgos
(Entails and Primogeniture), chap. 11, p. 150, 'to repeople, cultivate, and defend
the lands they conquered, endeavored to establish (arraigar) upon them
families of all classes, by means of great favors, franchises, and donations. The
spaces of lands, allotments, and caballerias were not equal in all places,
varying greatly, according to the greater or less extent of the territory, the
importance of its repeopling, its situation more or less immediate to enemies,
and other circumstances. For this reason the caballerias (a knight's share or fee)
and peonias (a foot-soldier's share) were much more liberal generally than in
Spain.'

81

The pobladores were specially favored. For their services in introducing
emigrants, and settling them in districts allotted to their reception, they not only
became entitled on performance of their contracts to such portion of the
designated tracts as was not reserved to the use of the subordinate colonists, or,
if none had been actually marked out, a concession varying according to the
express or implied terms of the contract, and the importance of the colony; but
they were also rewarded with numerous marks of honor and distinction. The
celebrated body of laws, known as the Recopilacion de las Indias, promulgated
about 1680, for the regulation and government of the Hispano-American
possessions, and repealing or superseding all contrary enactments, so far as
concerned those countries, treats expressly of colonizers, colonists, and
colonies. By Tom. II. book 4, title 5, law 11, pobladores, their heirs or children,
became vested with full civil and criminal jurisdiction over their respective
colonies, with the power of appointing alcaldes and other inferior officers. By
various laws of the following title of the same work, they were exempted from
imposts and taxation, privileged to wear armor offensive and defensive,
recommended to the special care and favor of all governors and viceroys, and to
honorable promotion of every kind, and ranked among the nobility of the land.
The chapter in question is curious; it contains not a law that does not confer
some mark of favor or distinction on discoverers and colonizers, so highly were
their services esteemed.

82

Between those who colonized the country, and those who founded cities,
towns, &c., a distinction was drawn, and the rules respecting them and their
rights vary, but not materially. Title sixth of the Recopilacion de las Indias,
treats, as just observed, of the honors and preferments conferred on both alike;
title seventh, chiefly of urban settlements; and title fifth, principally of rural
colonies and their colonizers. It is this title which I propose briefly to translate
and examine, as from its provisions it will be at once perceived that the rights
of the principal colonizer to the surplus of land in a poblacion or settlement,
after his colonists had been located, was a legal right, incident to the contract,
arising out of the law itself, and wholly independent of and unimpaired by the
absence or presence of words of conveyance to him in the instrument of
concession.

83

The first five laws of the fifth title relate merely to the selection of good,
healthy, and accessible lands and localities, to the salaries of officers, the
employment of Indians, &c., &c.; and, like very many of these laws, are only
recommendatory in their provisions. A translation of them, more classic than
close, may be found at p. 33 of the Appendix to Vol. II. of the Land Laws,
compiled by Matthew St. Clair Clarke in virtue of a resolution of the House of
Representatives of March 1st, 1833, and also in Vol. II. p. 44, of the book
known as White's Recopilacion. I quote, however, from an original Spanish
edition, printed at Madrid in 1756, by authority.

84

Lib. 4, tit. 5, Law 6:—'If the fitness of the country should afford opportunity
for colonizing some town with Spaniards, with a council of ordinary alcaldes
and regidores, and there should be a person who will undertake a contract to
settle it, let the agreement be made, with these requisites: That within the
period which may be allotted to him he shall have at least thirty inhabitants, and
each one of them a house, ten breeding cows, four oxen, or two oxen and two
young bulls, one breeding mare, one breeding sow, twenty breeding ewes of
Castile, and six hens and a cock. He shall in like manner nominate a priest, who
may administer the Holy Sacraments, who shall, the first time, be of his own
selection, and afterwards according to our royal presentation; and he shall
provide the church with ornaments and articles necessary to divine service. And
he shall give security that he will accomplish it within the time aforesaid; and if
he do not complete it, let him forfeit what he may have built, constructed, and
cultivated, which we appropriate to our royal patrimony; and let him, moreover,
incur a fine of a thousand dollars of gold for our exchequer. And if he should
fulfil his obligation, let there be given to him four leagues of boundary and
territory, in a square or oblong, according to the quality of the land, of such
form that, if the limits should be marked out, they may make four leagues
square; with this requisite, that the limits of said territory should be distant at
least five leagues from any city, town, or village whatever of Spaniards, and
that prejudice be done to no village of Indians or to a private individual.'

85

The next law relating to rural colonies is to be construed in connection with the
preceding, as appears by the context. It runs thus, including the caption:——
Law 7th. 'That there being a contract for a greater or smaller number of
inhabitants, it is to be granted with boundaries and territory corresponding, and
with the same conditions.'

86

'If there be any one who will obligate himself to make a new settlement in the
manner provided, of more or less than thirty inhabitants, providing there be not
less than ten, let there be granted to him boundaries and territory proportionate,
and with the same conditions.'

87

Now, if the introduction of thirty families entitled a poblador to a tract of four
leagues square, how many leagues would he be entitled to on introducing 500?
De Bastrop was evidently restricted by the terms of his contract from claiming
all that he might have claimed in the absence of a special allotment by metes
and bounds.

88

The 8th law simply provides that the children and relatives of colonists are also
to be considered as settlers, if married.

89

Law 9th. 'That the chief poblador shall contract with each individual who may
enrol himself to settle.'

90

'In the contracts for new settlements, which the governor, or the person who
may have that power in the Indies, may make with a city, adelantado, alcalde,
mayor, or corregidor, the person who may take the contract shall do likewise
with each one of the individuals who may enroll themselves to settle, and shall
boligate himself to give in the settlement designated lots for building houses,
arable and pasture lands, in such quantity of peonias and caballerias as each
one of the settlers may obligate himself to construct, so that he do not exceed or
give to each one more than five peonias, nor more than three caballerias,
according to the distinction, difference, and measure expressed in the laws of
the title on the distribution of lands, lots, and waters.'

91

Law 10th. 'That when there is no private colonizer, but married inhabitants, the
settlement is granted to them, provided they be not fewer than ten.'

92

'When some particular individuals shall unite in making a new settlement, and
there shall be the requisite number of married men for the purpose, let
permission be given them, so that they be not fewer than ten married men; and
let boundaries and territory be given to them, according to what has been
already said; and we grant them power to elect among themselves ordinary
alcaldes and annual officers of the council of the settlement.'

93

Analogous to the above are some laws from book 4, title 7, of the Recopilacion,
concerning the colonization of cities and towns (not rural colonies, like the
present).

94

Law 7th. 'That the tract is divided between him who makes the contract and the
settlers, as is ordained.''The tract and territory that may be given to a colonizer
by contract is divided out in the following manner: let there be first taken what
may be necessary for lots of the settlement, and suitable commons and pasturegrounds in which the cattle which the inhabitants must have may graze
abundantly, and as much more for the corporation lands of the place; the rest of
the tract and territory is to be divided into four parts; that part which he may
select shall belong to him who is obliged to make the settlement, and the other
three are to be divided out by lot equally to the settlers.'

95

The other laws of this title relate chiefly to the size and arrangement of streets,
squares, churches, dwellings, &c., and must be considered, not as imperative
and strictly obligatory, but merely recommendatory in their provisions. Among
others, the 25th law confers that power of prorogation of contracts which was
necessarily exercised, as a mere matter of justice, by the Baron de Carondelet,
in consequence of the arbitrary order contained in his official letter of June
18th, 1797:——

96

'If by reason of the occurrence of some fortuitous event, the colonizers should
not have completed the settlement within the time specified in the contract, let
them not lose what they may have expended or erected, nor let them incur the
penalty; and the person governing the country may prolong it as the case may
require.'

97

Lastly, I quote from book 4, tit. 12, law 4, of the same Recopilacion,
concerning the sale, composition, and distribution of lands, lots, and waters.

98

Law 4th. 'That the viceroys may give lands and lots to those who go to
colonize.'

99

'If in the discovered parts of the Indies there should be some sites and districts
so good that it may be proper to found settlements, and some persons should
apply to make a contract and form a colony on them, in order that with better
will and usefulness they may do so, let the viceroys and presidents give them,
in our name, lots, lands, and waters, in conformity to the situation of the
country, so that it be not to the prejudice of a third person, and be for such time
as may be our will.'*

100 Other laws in pari materia exist. By law 24, tit. 3, lib. 4, the chief colonizer is
authorized to establish the right of primogeniture and entail to all that may have
been granted to him. By law 3, tit. 5, lib. 4, they are authorized to convey to
each settler a sub-concession not exceeding five peonias, or four caballerias.
And from the definition of these measures contained in law 1, tit. 2, of the same
Recopilacion, as well as from Escricha, Dictionario de la Jurisprudencia, verb.
'Medida,' where he gives the relative proportions of Spanish measures, it is
apparent that De Bastrop contracted to narrow down very materially his own
sub-concessions below the legal maximum.

101 Although it might seem, from the closing sentence of the law last recited, that
grants to pobladores were revocable at will, such, nevertheless, was not the
case, unless some clause to that effect had been especially reserved in the deed
of concession. By book 3, tit. 5, law 1, of the Novissima Recopilacion de
Castilla, and book 3, tit. 12, law 8, of the Fuero Real, which embody the
general laws of the realm, it is provided that gifts bestowed by the king cannot
be revoked without the fault of the grantee, and pass to his heirs. So by 4th
Febrero, part 2, lib. 2, cap. 2, § 3, and No. 115, it is held, that royal donations
should be liberally construed; and if such a donation be made to two persons
conjointly, and one of them die without heirs, his portion accrues to the
surviving donee. In like manner, law 234, page 74, of the Leyes del Estilo,
declares, that he who receives a donation from the crown may do with is as he
pleases. And Elizondo, in tom. 5, part 2, cap. 6, § 8, writes: 'There is no doubt
that things which sovereigns bestow upon any person, they cannot afterwards
deprive them of, nor prevent them from doing with as they may desire, as well
as with their other property; more particularly if the gift be conferred on
account of the merit of the person favored, the donation rising then to the force
of a contract.'
102 The kings of Spain themselves have repeatedly disclaimed any such power of
issuing letters revocatory. 'Let such letters, if obtained, so far as regards their
abrogation or derogation, or any other thing therein contained, whereby the just
and legal rights of a party are taken away, be of no avail, nor have any force or
vigor whatever; let such letter be as if it had never been given or obtained.'—
Montalvo, Ordenanzas Reales de Castilla, lib. 3, tit. 14, law 7, p. 723; also tit.
12, p. 672, &c., and p. 678, whence I quote.

103 Of the powers of governors-general to grant lands and to contract for their
colonization, I believe there can be no doubt whatever. The very laws referred
to not only authorize, but require it. By various other statutes of tom. 2, lib. 3,
tit. 3, of the Recopilacion de las Indias, viceroys and governors of the American
provinces of Spain are invested with nearly all the authority of royalty itself. No
modern procuration could be more plenary than the second law of this title; no
ukase or firman more imperative in commanding obedience to them on the part
of Spanish subjects. It confers powers without other limit or restriction than
may be provided by law; the viceroy may do all that he is not specially and
directly prohibited from doing. And we learn from De Mesa, Arte Historica y
Legal, lib. 2, No. 91, that the titles of viceroy, captain or commandant general,
and governor political and military, are synonymous. The question of their
power to grant has been repeatedly settled. See De Armas et al. v. The Mayor,
5 La. Rep. 132; Arredondo's case, 6 Peters, 728; Delassus v. The United States,
9 Peters, 117; Chouteau's Heirs v. The United States, 9 Peters, 147; Pollard's
Lessee v. Files, 2 Howard, 591; Soulard et al. v. The United States, 4 Peters,
591. A fortiori they had the power to alienate lands of the royal domain for a
valuable consideration.

104 Such are the Spanish laws under which this grant was made, and by which its
intent, meaning, and validity must be tested. They had not merely such force as
the common law of England exercised over her colonies, but were enacted
expressly for the government of all the American possessions of the Spanish
crown. They may strike us as strange or unwise, yet are not the less valid on
that account, and certainly must appear less extraordinary to an American court
than the forms and provisions of the common law would seem to a Spanish
tribunal, when a discussion should arise about an entailed estate, with its fines,
contingent remainders, and common recoveries. De Bastrop's grant is assailed
and treated as void for the alleged absence of words of conveyance, as if it had
originated under the common law. Yet, were such words wholly wanting,
which is not the case, the clear and unequivocal laws under which it was really
made supply that want, and interpret the meaning and effect of the deeds. They
form, so to speak, the constitution of the grant; and such as they were impressed
upon it at its birth, they must ever continue. But could any Spanish tribunal,
uninitiated, ever so far penetrate the antiquated nonsense of a writ of ejectment
as to discover its real object and effect, plain as it may be to men versed in the
common law? And when, on referring for information to the lawyers of the
land, the Spaniard should discover that the object of a common recovery
suffered by a tenant in tail was to effect what was most positively prohibited by
law (Blackstone expressly says that 'they are fictitious proceedings, introduced
by a kind of pious fraud to elude the statutes de donis, de religiosis, &c.'), what
would be his astonishment at finding that universally held right and lawful
which wore every aspect of illegality, and was in fact illegal? A Spanish judge
would probably nullify a title held by virtue of such proceedings, and would
blunder in so doing. Such is a single instance of the difficulties and dangers
which beset an examiner into the unfamiliar laws and legal forms of a foreign
country. I therefore ask, that, if at the close of this argument any doubt should
remain upon the mind of this court, the claimants may have the benefit of that
doubt; that the object, meaning, and effect of De Bastrop's grant, as made
probable, or rather certain, by the deeds themselves, by corroborating
documents, by extrinsic evidence, by the contemporaneous and almost
prescriptive interpretation of popular opinion, as well as of history, by the
known laws and policy of the Spanish government, and by the opinion of the
jury and of the court a quo, may have more than ordinary weight; and that
forms of concession followed more than half a century ago in a foreign land, by
its highest officers, may not be nullified as meaningless and void, because they
do not conform to the ideas of men belonging to a later and widely different
age, race, government, and generation; or, if annulled, that it may not be except
upon the most clear, palpable, positive evidence of their utter worthlessness and
illegality. I invoke, in short, the old, trite, terse law-maxim, 'Omnia rite acta,'
&c.
105 Mr. Soul e.

106 Point No. 2.—Rights of the claimants under the title which they exhibit.
107 These will depend,——
108 1. On what construction is placed upon the terms in which it is executed; and,
109 2. If the terms be such as to confer only imperfect rights, upon the concomitant
circumstances which may entitle the claimants to have them perfected into
complete ones.
110 Taking the instrument to be unobstructed by any suspensive clause, absolute ab
initio, or, in other words, unconditional, its bearing and import, it is respectfully
submitted, are according to the usages, customs, and laws prevailing in
Louisiana at the date of its execution, so void of ambiguity, and expressed in a
language so eminently sacramental, as Spanish jurists would say, that they
admit of no possible controversy, doubt, or evasion. They are the most proper
terms in which the special thing which they were intended to effect could be
conveyed; and the slightest attention to their obvious meaning will convince the
court of their legitimacy and fitness.
111 In the original requ ete which he addresses to Governor Carondelet, Baron de
Bastrop sets forth, 'That it is indispensably necessary, on the part of the
government, that 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, those families may proceed to settle upon them,
which the applicant is going to introduce, under the express condition that
concessions of land are to be gratis, and that under no title or pretence can they
exceed the quantities of 400 arpents at most,' &c., and he prays that the
government be pleased to fix the number of families which he is to introduce.

112 The words by which the district is thus to be separated from the king's domain,
in this incipient requ ete, are, 'Esabsolutamente indispensable que per parte del
gobierno se destine,' &c. By referring to one of the most accredited authorities
on Spanish philology (Salva's Dictionary), your honors will find that the word
destinar is the proper one to express the idea which the applicant meant to
convey. 'DESTINAR: Determinar alguna cosa por algun fin o efecto.'—'To
determine something to some end or purpose.' It was usual that, upon such
requests (Diligencias), the order of the governor should issue; and this was
done either by inserting at the foot of them the formal words, 'Como lo pide,
despachase par secretaria en la forma que solicita'; or by an extended order
expressing the assent of the Governor, in the very words of the requ ete, as in
the present case for instance, where the order reads: 'Juan Filhiol Se nalara
doce leguas en quadro, mitad del lado de Bayu Siard, mitad del lado de
enfrente del Ouachita, para ir colocando en ellas las familias que el enunciado
Baron fue dirigiendo,' &c.—'Don Juan Filhiol will designate twelve leagues
square, half on the side of Bayou Siard, and half on the side opposite to the
Ouachita, that the families which the aforesaid Baron is conducting may locate
there,' &c.
113 And thus, from the words of the contract entered into by the Baron de Bastrop
with Governor Carondelet, these twelve leagues, so pointedly designated, were
to be assigned, to be constituted for what? 'Para ir colocando en ellas las
familias,' &c.—'That he might locate the families,' &c. (Salva's Dictionary.)
They were, therefore, from that moment, separated from the royal domain, and
once so separated, could not be resumed, except through the fault of the
grantee. Had the claimants under De Bastrop no other title but that, they would
still be vested by it with certain rights, inchoate, it is true, yet such as would be
recognized by this court, who would feel bound in all justice and equity to
perfect them by their decree, unless it were clearly shown that they had been
surrendered or forfeited.

114 If this contract contemplated no actual grant of the lands designated in it, but
was merely intended as an adjustment of the relations in which the emigrant
families should stand to the government, where is the necessity of marking out
twelve leagues square, or something like 1,016,264 arpents? The number of
families to be located thither under the contract was fixed at five hundred. They
were to have 400 arpents each, or 200,000 arpents in all. What was to become
of the remainder? The crown could no longer dispose of it, without a flagrant
violation of its faith. The emigrant families could not claim more than what was
allotted to them. To whom were to go the remaining 816,264 arpents? To
whom I ask it. Here is a difficulty which must be got over before it can be
maintained that the grant only transferred from the public domain what each
family was to take for itself. The words are clear, their meaning is
unmistakable. The twelve leagues square are asked to be set apart, and are
constituted for the establishment which De Bastrop was to form on Bayou
Siard, and in consideration of his introducing there the five hundred families, to
whom he was in his turn to make grants agreeably to the terms of his contract.
'Bien entendido que a ningun se ha de dar mayor concession de tierra que la de
quatro cientos arpanes.' 'It being understood that to none shall there be given a
greater concession of land than that of 400 arpents.' This restrictive clause in
the condition imposed upon De Bastrop to grant lands, could only enure to his
benefit. It could not affect the king, if the lands not conceded to the individual
settlers were to remain public property. Besides, it would only bind him as
much and as long as he chose to be bound. And if the domain was to be bound
by any such restriction, it was equally bound by the other parts of the contract;
and the twelve leagues having once been severed from it, the 816,264 arpents
remaining, after awarding to the settlers what had been stipulated in their
behalf, would have remained for ever waste property! If De Bastrop had no
claim over them, certainly the individual settler had none, and the king least of
all, for he had parted with them. He had parted with the twelve integral leagues
for the benefit of De Bastrop's establishment. He could no more violate this
than that part of the contract. The contract was absolute as to the quantity of the
lands designated and constituted, and conditional in so far only as it was to have
no effect unless Bastrop should comply with the obligations which he had
assumed in it. And, pray, what was to be the forfeiture in that case? The nullity
of the grants which he might have made to individual settlers? By no means.
But if Bastrop should not make good within three years the greater part of the
establishment, the twelve leagues square destined for the families he was to
send were to be occupied by the first families who might present themselves.

115 Should, therefore, De Bastrop make good his obligations, the twelve leagues
were to remain exclusively in his establishment, and to be occupied by himself
and the five hundred families which he was to settle there. The argument is
conclusive. De Bastrop was certainly comprised in the establishment; he was its
head, its ruler; the five hundred families introduced by him thither were not to
have more than 400 arpents each, or 200,000 arpents in all. To whom, I ask
again, were to revert the remaining lands?
116 I have said, that, if the contract was not intended to convey a grant of lands to
the extent claimed in the requ ete, there could be no necessity for executing
another instrument; the first was binding of itself. Indeed, according to the
interpretation which is put upon its terms by those who view them in a different
light from what I do, it required only at the hands of the government that
successive grants should be awarded to the families as they should present
themselves under its provisions. The spot where the establishment was to be
located could not be mistaken. It was amply described and most pointedly
marked out. What surveys were required but such as might be necessary to set
apart for every family of emigrants what each was entitled to?
117 But this assumption cannot bear the least scrutiny. It has no solid basis to stand
upon. As well attempt to lay in the air the foundations of a large structure, or to
build up a tower on moving sands.
118 But I proceed.
119 The contract was in progress, and the contractor rapidly advancing to its
completion. Governor Carondelet considers that the time has come for him to
give it a more formal shape, and he determines to 'designate the twelve leagues
destined for said establishment in the terms, with the metes, landmarks, and
boundaries, and in the place which is designated, fixed, and marked out by the
figurative plan and description affixed at the head of this title, which are made
out by the Surveyor-General, Don Carlos Trudeau, it having appeared to him
(Carondelet) most expedient to avoid all contestation and dispute, and
approving them,' &c., &c.; and he 'destines and appropriates the aforesaid
twelve leagues, that the said Baron de Bastrop may establish them in the terms,
and under the conditions, expressed in the petition and decree of the 20th and
21st of June, 1796.'

120 The twelve leagues had heretofore been but 'designated, marked out,'
destinadas, senaladas; now they are both 'designated and appropriated,'
destinamos y apropiamos, says the grant. 'APROPIAR: hacer propia de alguno
qualquier cosa' (Salva's Dict.); 'rem alicui adjudicare,' or 'to make something
the property of another, to adjudicate a thing to somebody.' The court perceives
that the property is fully transferred by these terms, and that it has gone out of
the domain.
121 That this paper is a grant, who can doubt that reads with the least attention its
contents? The governor calls it a title, titulo. Speaking of the plan and
description by Laveau Trudeau, he says: 'The plan and description affixed at
the head of this title,'—'el plano figurativo y diligencia que van por caveza de
este titulo.' Yes, a titulo, which the Spanish jurisconsults call titulo en forma,
and the French un titre translatif de propri et e;—'a title in form; a title
transferring property.' And the best evidence that it was so considered is in the
fact that the plan affixed to, and made an integral part of, the same, bears on its
face, and as its caption, CONCESSION, grant: CONCESSION BASTROP,
grant to Bastrop.
122 But there are other evidences extant of the meaning and import of that paper,—
evidences of high character, too,—of undisputed and indisputable authority.
123 About ten days before its execution, to wit, on the 10th of June, 1797, Baron de
Bastrop complains, 'that the twelve leagues which have been granted to him by
his contract are found in part overflowed and occupied by ancient inhabitants';
and he prays the governor 'to grant him the same quantity of land, &c., &c.,
without prejudice to the lands which his lordship has granted to the Marquis de
Maison-Rouge,' &c., &c.
124 'Don Felipe de Bastrop tiene la honra de observar a V. S. que las doce leguas
en quadro que V. S. le haotergudo por su contrato se hallan en parte aneyadas
y ocupadas por antiguos habitantes; en cuya virtud, a V. S. suplica se sirva
tener a bien concederle la misma cantidad de tierra,' &c., &c.

125 This request Carondelet indorses as follows: 'Como lo pide, despachase per
secretaria en forma que solicita.'—'As he requests, let it be despatched in the
form which he solicits.'Is that enough? What else is wanted? We have
something more. We hold a paper, without a date on its face it is true; without a
name at its foot; yet a paper of an unmistakable character, and, may I not say,
of some considerable dignity. It is apparently an elaborate essay on the
practical workings and results of an operation based on the plan of colonization
proposed by De Bastrop. It is proved to be in the handwriting of Francisco
Bouligny, who was from 1796 to 1800 Lieutenant-Governor of Louisiana, and
for some time within that period acting governor, in the absence of the titulary.
It refers in express terms to the Bastrop contract, and therefore must have been
written after its execution; and as Bouligny's death occurred some time in 1800,
it traces itself, naturally, to an epoch not suspicious (from 1796 to 1800), when
these matters were still fresh in the memory of those who spoke of them or
wrote about them. It emanates from one high in power, and, in all probability,
had its origin in the exigencies of his official duty.
126 Let us look into it and see what light, if any, it throws on this transaction. After
going into a detail of the expenditures to be incurred by the Baron de Bastrop,
in order that he might give value to the lands granted to him, and after showing
that he could effect it only by introducing at his own cost two thousand
families, he comes to the result, 'that he will have purchased the 800,000
arpents' remaining, after supplying the five hundred families which he was to
settle there under the terms of his contract, 'for the value of one million of
dollars, which,' says he, 'corresponds to ten reals of silver the arpent; a price
very moderate in comparison with that which these lands will immediately have
when the introduction of these two thousand families is once accomplished; and
it may be calculated, without exaggeration, at three dollars an arpent, which
would leave a profit to Bastrop of 1,400,000 dollars.'
127 Is not this sufficient to establish what meaning it had in the opinion of those
whom we must suppose to have been best versed in the usages, customs, and
laws prevailing with respect to such matters? I am sure it is; and I might here
part with this branch of the case, were it not that I can strengthen it still more
by referring to a certain historical document to be found among the papers
compiled by Mr. White in his Recopilacion.

128 Morales (the Intendant of Louisiana), in a long communication to Don Pedro
Varela y Ulloa, bearing date New Orleans, October 16, 1797, complains that
the royal Hacienda, the public treasury, is overburdened by the contracts which
are entered into by private individuals, in order to obtain grants of lands and
lots; and he sets forth 'that the royal Hacienda may be spared many expenses
and losses which may otherwise result from the combination and execution of
projects for obtaining grants of lands and lots; that it is clear that the person
who is principally responsible for the royal treasury's interests would be more
careful in that which may occasion expenses to the treasury, than one who
views the affairs of the Hacienda merely as accessory.' 2 White's Recop. 425,
426. And in proof of the abuses he complains of, he adverts to the very case
under consideration. 'As an instance,' says he, 'of what I have stated, observe
the contract between Baron de Carondelet and Baron de Bastrop for the
settlement of five hundred families, in the 144 leagues of plain ground granted
by the governor,' &c., &c. In fine, he asks that the power of granting lands be
transferred from the governor to the Intendant.
129 His remonstrances were listened to; and on the 22d of October, 1798, the
governor was notified 'that the king had resolved, &c., that the exclusive
faculty of granting lands of every kind should be restored to the Intendancy of
the Province, &c.; consequently, the power hitherto residing in the governor to
these effects was abolished and suppressed, being transferred to the Intendant
for the future.' 2 White's Recopilacion, 477.
130 And thus we cannot lay our hands upon a single public document connected
with that epoch, and having reference to those transactions, which does not
proclaim the fact that these contracts were considered as actual grants,
transferring the lands therein designated to the contractor, appropriating them to
him, making them his property.
131 Nor did the governors, in making such contracts, transcend their authority. We
have just seen that, until 1798, it resided fully in them. But was the exercise of
that authority a violation of the general laws regulating these matters in the
Indies? I am ready to show that it was not.
132 An ordinance of Philip II., embodied in the Leyes de las Indias, had provided
that 'haviendo quien quiera obligarse a hacer nueva poblacion, &c., de mas o
menos de treinta vecinos, con que no sean menos de diez, se le conceda el
termino y territorio,' &c. Lib. 4, tit. 5, ley 7.
133 'Should any one contract the obligation of making a settlement of more or less
than thirty families, but of no less than ten, let him be granted a district of
territory on the same terms and conditions.'

134 And, by referring to the law immediately preceding, it will be perceived that
the district of land to be allowed the poblador the undertaker of the settlement,
was four leagues square. 'Y, si cumpliere su obligacion, se le den quatro leguas
de termino y territorio.' Ibid., Ley 6.
135 Whosoever was to receive the establishment was to give those who should
register themselves as settlers, lots for building houses, pasture and arable
lands, in quantities to suit their demands, &c., provided the whole he should
give did not exceed five peonias or three caballerias.
136 'El que tomare el assiento, le hara tan bien con cada uno de los particulares
que se registraran para poblar, y se obligara a dar en el pueblo designado,
solares para edificar, tierras de pasto y labor en tanta quantidad, &c., &c.,
con que no exceda ni de a cada uno mas de cinco peonias, ni mas de tres
caballerias.' Ibid., Ley 9.
137 And the authority under which such contracts as that of Bastrop were entered
into was derived from the power originally conferred on the viceroys
(afterwards extended to governors, intendants, &c.), by an ordinance of Philip
II. of May 18th, 1752, providing: 'Si en, lo y a descubierto de las Indias,
huviere algunos sitios y comarcas tan buenos que convenga fundar
poblaciones, y algunas personas se applicaren a hacer assiento, y vecindad en
ellas, para que con mas voluntad y utilidad lo pueden hacer, los virreyes y
presidentes les den en nuestro nombre tierras, solares y aguas,' &c. Ibid., tit.
12, ley 3.
138 'If in those parts of the Indies already discovered, there should be sites and
districts so good that it may be proper to found settlements, and persons should
apply to form a settlement and colony there, in order that they may do so with
more alacrity and usefulness, let the viceroys and presidents give them, in our
name, lots, lands, and waters,' &c.
139 I have, I think, satisfied the court on this point, and now dismiss it entirely. But
should I have failed in carrying your honors' convictions, I would still plead, in
the last resort, that I have made out a case that claims at their hands all those
considerations of equity which the law of 1824 enables them to allow in cases
of an inchoate and incomplete title.

140 It will not be contested, I am sure, that, as far as the obligations of De Bastrop
went, he faithfully complied with them. Indeed, so rapidly was he proceeding to
their execution, that he had to be stopped from their further performance by an
order of the governor, issued upon a request of the Intendant, setting forth that,
on account of the scarcity of funds in the royal treasury, it was necessary that
the introduction of families under De Bastrop's contract should be suspended;
and this order, it will be observed, expressly stipulated 'that it should not
prejudice De Bastrop's rights.' It extended, to two years after the execution of
the contract should have been resumed, the time within which it was originally
to be completed in its greater part; and the decree goes on affirming that, 'on his
part (the governor's), he will religiously comply with the obligations he had
contracted,—a maxim which has always distinguished the Spanish
nation.'—'Queded vmd. persuadido siempre que por mi parte observare
religiosamente los empenos que contracte, maxima que constantamente ha
distinguido la nation Espa nola.'
141 What can these obligations be which the governor, with so much emphasis,
asserts he will comply with religiously? The introduction of families being
stopped, if De Bastrop's agency was limited to his bringing them into the
settlement, what could be those rights which were not to be prejudiced? what
those obligations which imposed such duties on the governor as to induce him
to pledge the Castilian honor that they would be strictly complied with? Why,
the meaning is obvious; he clearly alludes to the grant which was to close and
complete the contract; and we find him, in effect, two days afterwards
redeeming his pledge and executing it.
142 Still, I will admit that this execution of the grant unto Bastrop left him, as to the
remaining families which he was to settle there, subject to the requisition of the
Spanish government, who might order him to introduce them within the time
agreed upon in the decree just cited; and this is the only thing that can be
construed as imparting an inchoate and incomplete character to his title. But it
is this, also, that brings the grant within the jurisdiction of your honors; not at
their mercy, but that they may do with it what the Spanish tribunals might have
done and would have done themselves, had not the sovereignty of the province
within the limits of which it is located been transferred from Spain to the
United States.
143 'Si, por haver sobrevenido caso fortuito, los pobladores no huvieren acabado
de cumplir la poblacion en el termino contenido en el asiento, no hayan
perdido, ni perdan lo que huvieren gastado, ni edificado, ni incurran la pena,'
&c. Leyes de las Indias, lib. 4, tit. 7, ley 25.

144 'If, by reason of some fortuitous event, the colonizers should not have
completed the settlement within the time specified in the contract, let them not
lose what they may have expended or erected; nor let them incur the penalty,'
&c.
145 Spain might undoubtedly have exonerated De Bastrop from his liability to bring
the families agreed upon in his contract. That she would have done so, who can
doubt, that reads the remonstrance of Morales above referred to, the order that
intervened upon it, and ponders the considerations which prompted the one and
the other? Could the government of Spain give up its solemn contract, and
repudiate it to the injury of Bastrop, when the latter had so faithfully complied
with his obligations under it? Had not De Bastrop at least an equitable claim in
that contract, against the government, and will that claim be disregarded merely
because the sovereignty has changed hands?
146 I cannot persuade myself that there is a doubt left in the minds of your honors.
But lest they should still hesitate as to the interpretation which I have set upon
the terms of the grant, and the opinion I entertain of their legal value and
import, I shall take leave to attach to these remarks, and to use as my own, the
argument which has been furnished me on that question by the three most
eminent jurists now living in Spain, commending it as expressing the views of
men familiar with the matters in dispute, and fully able to do them justice, and
whose character, profound learning, and ability are avouched, not only by the
testimonial appended to their names, but by the universal estimation in which
they are held as jurisconsults and doctors of the civil law, and as men of the
highest honor, rectitude, and integrity.
147 Mr. Soul e filed as part of his argument the opinion of the Spanish jurisconsults,
T. F. Pacheco, Manuel Cortina, and S. de Olozaga, delivered in Madrid,
September, 1849.
148 Mr. Justice CATRON delivered the opinion of the court.
149 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.

150 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.
151 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.
152 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.
153 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.
154 DE BASTROP.
155 New Orleans, 20th June, 1796.
156 'New Orleans, June 21, 1796.

157 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 Quachita,
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 Appostolical 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.
158 THE BARON DE CARONDELET.
159 Registered. ANDRES LOPEZ ARMESTO.
Official.
160 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.
161 '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.
162 New Orleans, 18th June, 1797.

163 BARON DE CARONDELET.
164 THE SENOR BARON DE BASTROP.
Concession.
165 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.
166 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, 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. 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.
167 THE BARON DE CARONDELET.
168 ANDRES LOPEZ DE ARMESTO.
[For map see original.]

169 I, Don Carlos Trudeau, Surveyor Royal and Particular of the Province of
Louisiana, &c., do certify that the present draft contains one hundred and fortyfour 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 seventyfive 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.
170 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.
171 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.
172 CARLOS TRUDEAU, Surveyor.

173 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.
174 DE BASTROP.
175 New Orleans, June 12, 1797.
176 New Orleans, June 12, 1797.

177 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.
178 THE BARON DE CARONDELET.
179 Registered. ANDRES LOPEZ ARMESTO.
180 To his Excellency the Senor Baron de Carondelet, Governor-General of the
Province of Louisiana, &c.
181 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.
182 P. DE BASTROP.
183 New Orleans, 10th June, 1797.

Order.
184 New Orleans, 10th June, 1797. As he requests, let it be despatched by the
secretary department, in the form which he solicits.
185 THE BARON DE CARONDELET.
Translation.
186 June 21, 1796.
187 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.

188 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 fulfilment of the
present contract, subjecting myself, in all things, to the jurisdiction of this
General Intendancy.
189 In testimony of which, I sign it at New Orleans, the 16th of June, 1797.
190 BARON DE BASTROP.
191 New Orleans, date as above.
192 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.
193 New Orleans, ut supra.
194 GILBERT LEONARD.
195 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.

196 New Orleans, June 18, 1797.
197 THE BARON DE CARONDELET.
198 BARON DE BASTROP.
199 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.
200 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.
201 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.
202 It has also on several occasions been presented to Congress, and a perfect title
required, on the assumption that there was none.
203 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.

204 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 proces
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.
205 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.'
206 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.'

207 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.
208 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.
209 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.

210 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.
211 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 hinderance or charge.
212 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
waterpower 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.

213 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.
214 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.
215 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.
216 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.
217 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?

218 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.
219 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.

220 On the whole, we are of opinion that the decree of the District Court should be
reversed, and the petition dismissed; and so order.
221 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.
222 Mr. Justice McLEAN, Mr. Justice WAYNE, Mr. Justice McKINLEY, and Mr.
Justice GRIER dissented.
223 Mr. Justice McLEAN.
224 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.
225 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.

226 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.
227 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.
228 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.

229 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.
230 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.'
231 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.
232 What was the nature of the title given to the Baron de Bastrop?
233 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.'

234 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.'
235 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.'

236 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.
237 Does this grant convey any title to the Baron de Bastrop, and if it does, to what
extent?
238 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.
239 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.'

240 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.
241 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.
242 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.
243 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.

244 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.
245 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.
246 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.
247 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.'

248 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.'
249 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.'
250 '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.
251 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.'

252 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.
253 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.
254 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.'
255 In this opinion I have the concurrence of my brother McKinley, whose views
are embodied in it with my own.
Order.

256 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.

*

The following was cited, also, to show the power of the Spanish governors
to make such grants as that to Bastrop, and that no confirmation by the
king was necessary. It was omitted in the translation of the laws annexed
to White's Recopilacion and Clarke's Land Laws.
Book 4, tit. 1, law 4, Laws of Indies. 'Of Discoveries.'
'We establish and command that no person, of whatever state and
condition he may be, shall of his own authority make any discovery by
land or sea, nor entry, new settlement, or stock-farm in what has been or is
to be discovered in our Indies, without our permission and provision,
or that of whoever may have our power to grant it, under penalty of death,
and of forfeiture of all his property for our chamber. And we command the
viceroys, audiences, governors, and other authorities, not to give
permission to make new discoveries without consulting us, and having our
special license. But where the country may have been already discovered
and peaceful, we permit them to give leave within their jurisdictions to
make the settlements (poblaciones) that may be fit, observing the laws of
this book, provided that, when the settlement is made, they send us
forthwith a report of what they may have executed; and as to the power of
viceroys for new discoveries, let the 28th law, tit. 3, lib. 3, be observed in
the cases which it comprises.'-