# United States v. King (48 U.S. 833)/Dissent McLean

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* Dissenting Opinions McLean Wayne
United States Supreme Court
48 U.S. 833
United States v. King
Mr. Justice McLEAN.
Had not my brother judges pronounced the above opinion, I should not have supposed there could be any difficulty in determining the character and effect of the grant in question. Being in the minority, I shall only state some of the grounds on which my opinion has been formed.
The validity of the grant depends upon the laws of Spain in 1797, the time it bears date. Those laws were foreign, and are required to be proved. The incorporation of Louisiana into the Union cannot affect this principle. The treaty of cession and the acts of Congress subsequently enacted, recognizing private rights in the ceded territory, only reiterated the well-established principles of the laws of nations. In the language of the act of Congress, we are to look 'to the laws and ordinances of the government under which the claim originated.'
On the 17th of March, 1795, the Baron de Carondelet, Governor of Louisiana, and others, entered into a contract with the Marquis de Maison Rouge, which was sanctioned by the king of Spain, to bring into 'these provinces thirty families, emigrants, for the purpose of forming an establishment with them on the lands bordering upon the Washita, designed principally for the culture of wheat,' &c., on the following conditions:-1st. Two hundred dollars to be paid out of the royal treasury for every family composed of two persons fit for agriculture, &c., four hundred dollars to those having four laborers, and in the same proportion for a less number. 2d. A guide to be furnished them. 3d. Their transportation to be paid, not exceeding three thousand pounds to each family. 4th. Ten arpens of land, extending back forty arpens, for a family of two laborers, and in the same proportion for a greater number. 5th. Other privileges.
The Marquis performed much labor, and consequently incurred much expense, in the fulfilment of the contract. And on the 20th of June, 1797, the Baron de Carondelet and Andres Lopez Armesto executed to the Marquis the following instrument:-'Forasmuch as the Marquis de Maison Rouge is near completing the establishment of the Washita, which he was authorized to make for thirty families, by the royal order of July 14th, 1795, and desirous to remove for the future all doubt respecting other families or new colonists who may come to establish themselves, we destine and appropriate conclusively for the establishment of the aforesaid Marquis de Maison Rouge, by virtue of the powers granted to us by the king, the thirty superficial leagues marked in the plan annexed to the head of this instrument, with the limits and boundaries designated, with our approbation, by the Surveyor-General, Don Carlos Lareau Trudeau, under the terms and conditions stipulated and contracted by the said Marquis de Maison Rouge,' &c.
'Note, that, in conformity with his contract, the Marquis de Maison Rouge is not to admit or establish any American in the lands included in his grant.'
The certificate of the surveyor, Carlos Trudeau, laid down the surveys with precision, stating the superficial total at two hundred and eight thousand three hundred and forty-four superficial arpens, equal to thirty leagues, &c. And the surveyor adds:-'It being well understood that the lands included in the foregoing plats, which are held by titles in form, or by virtue of a fresh decree of commission, are not to compose a part of the thirty degrees; on the contrary, the Marquis of Maison Rouge promises not to injure any of the said occupants, promising to maintain and support them in all their rights, since if it should happen that the said thirty leagues should suffer any diminution of the land occupied, there will be no objection or inconvenience to the said Marquis de Maison Rouge's completing or making up the deficiency in any other place where there are vacant lands, and to the satisfaction of the concerned.'
This survey, being annexed to the patent and referred to in it, constitutes a part of the grant, with the conditions specified.
The error in the argument seems to be in supposing this grant to have been issued in fulfilment of the contract of 1795. The grant was in no way connected with that contract, except as showing the consideration on which the grant was made to the Marquis, and with the express view of relieving the royal treasury, which was often without funds, from the charges imposed by the contract. Charles Tessier, now a judge in Louisiana, was cheif clerk in the land-office, and who made out the grant, states, that 'Rendon and Morales successively filled the office of intendant, and being charged with the public finances, which were greatly embarrassed for want of money, they made difficulties about paying for the families which Maison Rouge introduced and was authorized to introduce, and tried to get rid of farther advances to Maison Rouge.' And the witness says the land was not worth so much as the expenses of the government might amount to in the end. And J. Mercier, another witness, confirms the statement of Tessier.
The truth of these statements is sustained by the words of the grant. The royal order of 1795 being referred to, the grant states:-'And desirous to remove for the future all doubt respecting other families or new colonists who may come to establish themselves, we destine and appropriate conclusively for the establishment of the aforesaid Marquis de Maison Rouge,' &c. Now it must be observed that the Marquis was the mere agent of the government under the contract of 1795. He was to have no interest in the land, nor did the government, in the contract, propose to pay him for his services. That this enterprise was deemed one of great importance is shown by the gratuity of land and money given by the government to families, and also in agreeing to pay the expense of their transportation. And the government being 'desirous to remove for the future all doubt respecting other families or new colonists who may come to establish themselves,' &c. These were no part of the families under the first contract, but 'other families.' So that the families or colonists which should come under the grant were not to come under the contract, but to settle under the grant, having no claim on the government. This relieved the royal treasury from any further embarrassment on account of the contract of 1795, and removed all doubts in regard to such settlers.
But the land was granted to the Marquis de Maison Rouge, subject only to the terms of the grant and of those specified in the certificate of the surveyor, which were incorporated into the grant. The conditions thus expressed were, that the Marquis shoudl not admit 'any American in the lands included in his grant.' And he was to protect the rights of those who had a good title to lands within his grant, and should receive other lands in lieu of those thus held. These two conditions constituted the contract referred to, I have no doubt, in the note affixed to the grant. There was, then, no connection between the grant and the contract of 1795, except as the latter showed the meritorious services of the Marquis, which constituted, in part at least, the consideration of the grant.
But was this instrument a grant? Under the common law it was not a grant, but it is one under the civil law. If the instrument separates the land from the public domain, and approprates it to the use of an individual, it is a grant. No words of inheritance or terms of grant are necessary by the civil law. In this grant the words are, 'We destine and appropriate conclusively for the establishment of the aforesaid Marquis,' &c. Now these terms appropriate the land described 'conclusively.' Nothing could be more specific than this. It separates the land designated in the plat from the lands in the crown, and no subsequent condition was annexed. He had nearly completed the establishment of the Washita under the contract of 1795, and for these services the grant was made. If the grant had required the Marquis to do certain things, as to settle a number of families, there would be some apparent ground to say, that he, or those claiming under him, must show a preformance of the condition. But even in such a case the grant would be good, for the cession of the country by Spain to France, and by France to the United States, within a short time after the grant, would have excused the performance of such a condition. It would be strange indeed if our government should require the performance of a condition which excludes our own citizens from benefits, and gives them to foreigners. This point has been decided in the case of Arredondo.
But the most conclusive anawer to this view is, that the grant required no such condition, and that, in this respect, it has no connection with the contract of 1795. That contract, by this grant, was admitted to be nearly completed, and there was no requirement that it should be completed. It was found burdensome to the treasury, and was abandoned. Under that contract, titles were made to the settlers, and not to the Marquis. And the land for the thirty families would have required a small tract in comparison with that covered by the grant.
This instrument, it is said, does not purport to be a grant. If this be so, those who issued it, and all others who have officially and professionally examined it heretofore, have been strangely mistaken. Charles Tessier, who was a principal clerk in the office of the Spanish government of Louisiana for making grants of land, and who made out this grant, says it 'was denominated and considered as a titulo en forma, and was such complete and perfect evidence of title as not to require any other to validate or strengthen it.' J. Mercier, who was a clerk in the land-office with Tessier, also states that it is a grant. Both of these persons, from their public duties, must have been as well acquainted with the forms of titles then used, and indeed better, than any other persons. And this is a matter of fact to be established.
The commissioners appointed by the government to investigate land titles in Louisiana reported, in 1812, 'that the instrument under date of the 20th June, 1797, is a patent, or what was usually, in Louisiana, denominated a title in form.'
This claim being before the House of Representatives in 1817, a committee reported, that they 'are of opinion that it is a legal and formal title, according to the laws and usages of the province of Louisiana.' Other reports were made by a committee of the Senate confirmatory of the grant. The confirmation of the claim to a league square, by Congress, was a recognition of the grant. On no other supposition could the act of the 29th of April, 1816, confirming the league square, have been passed.
There can be no question that this grant would have been held valid under the Spanish government, and, both by the treaty of cession and the laws of nations, it must be held valid by this government. The largeness of the claim can be no objection to it. Tracts as large were given, for services less meritorious than those rendered by the Marquis de Maison Rouge, by the Spanish government. Grants were made, under that government, for services, civil or military, performed or to be performed. And there was no service deemed more meritorious by Spain, except military service, than that of establishing colonies, reducing the country to cultivation, constructing mills, and other improvements. The quantity granted was left generally to the discretion of the governor or other officer who represented his sovereign in making the grant.
If this instrument be a grant which would have been held valid by the Spanish government, then we are bound in good faith so to consider it. And I cannot entertain any doubt that it is a complete grant, and therefore I dissent from the decision of a majority of the court.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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