text:
Page:Cartoon portraits and biographical sketches of men of the day.djvu/217

 AMERICAN HUMOUR.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
United States v. Chicago/Dissent Catron

Mr. Justice CATRON, dissenting.

On a bill in equity being presented by the United States to the district judge, he granted an injunction against the city of Chicago, to restrain the corporation from running a street through the public property attached to a military post within the corporate limits. By the act of February 1st, 1807, injunctions granted by district judges in vacation only remain in force until the next term of the Circuit Court. Accordingly, at the next term a motion was made to continue the injunction granted by the district judge, and the judges were opposed in opinion whether an injunction should or should not be granted. The entire matters of law and fact arising on the face of the bill, and on affidavits and documents introduced by the defendant to resist the motion, were sent up to this court, covered by three points, on which the judges assume to have been opposed. And the motion to renew the injunction is presented to us, as it was to the Circuit Court. And the question is, Have we any power to grant the injunction? By the Constitution, the judicial power is vested in the Supreme Court, and such inferior courts as the Congress may from time to time ordain and establish. In cases affecting public ministers and consuls of other countries, and in cases where States are the parties, this court has original jurisdiction. In all other cases, the Constitution provides, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. That is to say, with such exceptions to the exercise of appellate jurisdiction as Congress shall interpose; as that no cause shall come up, unless the matter in controversy exceeds the sum or value of two thousand dollars, nor shall a writ of error lie in a criminal cause, nor from a District Court, &c. That the original jurisdiction of the Supreme Court is limited to the two classes of cases above referred to was held by this court in Marbury v. Madison, 1 Cranch, 174. Is, then, the granting an injunction an exercise of original jurisdiction? It may be done out of court by the circuit judge; and so an expired injunction may be renewed at any time by him, the courts of equity being always open for such purpose by our present rules. This bill and affidavits are placed before us as they were before the Circuit Court, and for the same purpose, of founding an original motion on them, thereby to procure an order for the restraining writ to issue. We are asked to take an original incipient step, as the court below was, before any answer is filed, and before any thing could be adjudged between the parties by the Circuit Court, so as to bind their rights.

What is appellate jurisdiction in the sense of the Constitution? Our practice under the thirteenth section of the Judiciary Act of 1789 has settled the meaning of the term. It is to re examine, and to reverse or affirm, the judgment, sentence, order, or decree of an inferior court,-to pass on that which has been adjudged. Here, nothing was adjudged in the court below.

From the threatening nature of this precedent, it is deemed improper to pass over it unnoticed, as I have done in other cases. If a division can be certified in this instance, so there may be in every other where an injunction is applied for in open court, and the judges see proper to send us the cause,-for as to real divisions, they hardly exist at present. The cases are sent here by agreement of counsel, with the assent of the Circuit Court, usually without any examination below.

I, therefore, am of opinion, that we have no jurisdiction, and that the matter before us should be dismissed.

title: United States v. Chicago/Dissent Catron


text: Page:Cartoon portraits and biographical sketches of men of the day.djvu/218


text: Page:Cartoon portraits and biographical sketches of men of the day.djvu/219


text:
Page:Cartoon portraits and biographical sketches of men of the day.djvu/221

 HE FOUND LIVINGSTONE.


text: Page:Cartoon portraits and biographical sketches of men of the day.djvu/222


text:
Page:Cartoon portraits and biographical sketches of men of the day.djvu/225

 HISTORY.


text: Page:Cartoon portraits and biographical sketches of men of the day.djvu/226


text: Page:Cartoon portraits and biographical sketches of men of the day.djvu/227


text:
Page:Cartoon portraits and biographical sketches of men of the day.djvu/229

 PUNCH.


text: Page:Cartoon portraits and biographical sketches of men of the day.djvu/230


text:
Page:Cartoon portraits and biographical sketches of men of the day.djvu/237

 BROAD CHURCH.


text: Page:Cartoon portraits and biographical sketches of men of the day.djvu/238


text:
Page:Cartoon portraits and biographical sketches of men of the day.djvu/241

 SWEETNESS AND LIGHT.


text: Page:Cartoon portraits and biographical sketches of men of the day.djvu/242


text:
Page:Cartoon portraits and biographical sketches of men of the day.djvu/245

 THE BIOGRAPHER OF JACK SHEPPARD.


text: Page:Cartoon portraits and biographical sketches of men of the day.djvu/246


text:
Page:Cartoon portraits and biographical sketches of men of the day.djvu/249

 AS MILD A MAN AS EVER SCUTTLED SHIP OR CUT A THROAT.


text: Page:Cartoon portraits and biographical sketches of men of the day.djvu/250


text: Page:Cartoon portraits and biographical sketches of men of the day.djvu/253


text:
Page:Cartoon portraits and biographical sketches of men of the day.djvu/255

 GOODY GOODY.


text: Page:Cartoon portraits and biographical sketches of men of the day.djvu/256


text:
Page:Cartoon portraits and biographical sketches of men of the day.djvu/259

 TINSLEY BROTHERS.


text: Page:Cartoon portraits and biographical sketches of men of the day.djvu/260


text:
Cutler v. Rae/Dissent Wayne

Mr. Justice WAYNE.

I regret that this case has been sent to this court upon the printed arguments of the counsel in the court below, and still more regret that this court has decided an important constitutional question of admiralty jurisdiction, without either oral or printed argument.

It is the first time in this court that such a result has happened; and it was a sufficient reason, in my mind, to restrain this court from action, until after the point had been argued.

As I gather the facts of the case from the record, the question of jurisdiction was not argued either in the District or Circuit Court; though, in making up the record for this court, the point was suggested by the counsel for the respondents. It is a curious incident in the history of our jurisprudence, that a constitutional point should have been ruled here, which had neither been argued at the bar in this court, nor elsewhere; and I think it will be thought so much so, that it will not occur again. Such a silent and uncontested judicial disposition of a question arising under the Constitution is at variance with the interest hitherto shown by our courts, and by the public, in such matters, and does not partake of that watchful and patient inquiry concerning constitutional powers, which has been so much the characteristic of the American mind, when either of the departments of our government has been called upon to exercise them.

I think, too, that this decision should not have been made at this time; for though a full court was present in our consultation upon this case, one of the judges, Mr. Justice Catron, refused to deliberate with us upon it, stating as his reason for not doing so, that important points, constitutional and otherwise, were involved, and that the case was only before us upon printed arguments upon the latter. I think he did so with great propriety, and I agree with him, that the rule of the court permitting cases to be sent here upon printed arguments was not meant to embrace cases involving constitutional questions. That it was not meant to do so, I infer from this being the first case in which it has been done with the practical acquiescence of this court, and from our use, in having hitherto avoided the decision of such questions, except upon oral argument before a full court.

Mr. Justice Catron's withdrawal left eight of us to act upon the case, and we were for some time equally divided upon this point of jurisdiction. It was ultimately disposed of as it has been by a majority of the court, rather by our acquiescence in what was thought to be English authorities against the jurisdiction, than from a close and searching scrutiny into the practice and jurisdiction of courts of admiralty, and how far they were comprehended within our constitutional extension of judicial power to all cases of admiralty and maritime jurisdiction.

Under such circumstances, with every inclination to carry out without further inquiry the decisions of this court, and with unfeigned respect for all of the judges who have made this decision, I hope I shall not be considered as doing any thing at variance with either, if I shall hear argument upon this point of jurisdiction, should such a case occur before me upon the circuit, or if I shall ask, should it ever arise here again, that we may hear argument from counsel upon a point which we had not an opportunity to hear when it was decided.

But my objection to the ruling of the point is greater than to the circumstances under which it has been made.

I think that the case is within our constitutional admiralty and maritime jurisdiction, and that it has been so decided by this court.

An attempt has been made to take it out of the case of Sheppard v. Taylor, 5 Peters, 675, by making a distinction between cases of absolute and unconditional maritime lien, and such as are now called qualified cases of lien, to which a party is entitled by the maritime law. And it is said, 'in general average, that the party entitled to contribution has no absolute and unconditional lien upon the goods liable to contribute; but that the captain has a right to retain them until the general average with which they are chargeable has been paid or secured.'

Besides, not having been able to find, in the books and cases which I have read, any such distinction, (now, I believe, for the first time made,) I have always thought that a lien given by the maritime law, of whatever kind it may be, is one which can be enforced in a maritime court, for the purpose of consummating, for the benefit of all concerned, the equity which raised or created it. For instance, that if a master of a vessel gets a lien upon the saved cargo, in a case of jettison, or voluntary stranding of his vessel, and he is in any way dispossessed of any part of it, either by a freighter or other person, he may bring a possessory action in a maritime court to regain it, or a petitory libel, if the goods saved have got into the hands of a third person, who claims a right of property in them against the freighter. And further, that if the freighters, in a case of jettison or voluntary stranding of a vessel, disagree as to what should be their respective contributions, and there is no fixed rule for ascertaining it without suit in the country where the said cargo may happen to be, either the captain having the cargo in possession, or the freighters, or either of them, may go into a maritime court, to have it judicially determined. And that a party interested in such a lien may file his libel in personam, in a maritime court, against a freighter for his contribution, if he has got possession of his part of the saved cargo, and has removed it beyond the sovereignty in which the court is, so that it may not be sequestrated or put under arrest, to answer the court's decree. And it matters not whether the freighter's possession of the saved goods has been obtained by the delivery of it to him by the master, or otherwise. A lien, or right given to the master 'to retain the goods, until the general average with which they are chargeable has been paid or secured,' as this court says the master has, has nothing in it of the character of a personal agency, which the master may throw off at his will; for neither in its beginning nor in its continuance has it a voluntary appointment; but it is a trust, which the maritime law casts upon him, from the necessity of the case, in virtue of his official relation to the vessel and cargo, and to those who are the owners of them. It is a lien given to the captain by the maritime law, for the purposes of a high equity, produced by necessity; and it cannot be taken from the jurisdiction of a maritime court by any act of a party interested in it, short of what that equity demands; though the parties interested may themselves determine and receive from each other what they may think that equity gives to each of them.

And the foundation of this jurisdiction of a court of admiralty in such cases, both in rem and in personam, is not on account of the locality of the jettison or stranding, or that it is a thing done at sea; but because, happening at sea, the peril producing it makes new and involuntary relations between the freighters, where there were none before, and for which the interests of commerce require a tribunal, into which, by the law of its creation, all the parties interested may be brought together for settlement. Of course, in what I have said, I have had no reference to the admiralty jurisdiction in England since the time of Charles II., but to that of the maritime courts upon the Continent, and as the practice in them continues to be, and also to what had been the ancient practice and jurisdiction in England on admiralty, until the reign of James I., notwithstanding the statutes of 13 Richard II., ch. 5, and 15 Richard II., ch. 3; for we know historically, that, until the time of James, the statutes of Richard operated, rather to restrain the usurped jurisdiction of the Court of Admiralty in England, than to limit it, in what rightfully belonged to its cognizance.

When, then, we are referred to Abbott on Shipping and to Kent's Commentaries, and to the cases cited by them, in support of the conclusion to which this court has here come, concerning the want of jurisdiction, in an American court of admiralty, of a libel in personam to enforce a right in a maritime lien which cannot be enforced in rem, in consequence of the removal of the subject-matter of the lien beyond the reach of the court's monition and attachment, it will be found, by a perusal of Abbott and Kent upon General Average, and the cases cited by those writers, that neither of them is discussing at all the jurisdiction of a court of admiralty, even in England; but that each only states-and one from the other-what are the remedies in England for the recovery of the contributions of a general average. The language in Abbott is:-'In case of dispute, the contribution may be recovered, either by a suit in equity only, or by an action at law, instituted by each individual entitled to recover, against each party that ought to pay for the amount of his share.' (§ 14, p. 610.) And it is admitted that the English jurisdiction in admiralty was not meant by the framers of the Constitution, when the judicial power was extended 'to all cases of admiralty and maritime jurisdiction.' The language of the court now is,-'It has been repeatedly decided in this court, that its jurisdiction is not restricted to the subjects of which the English courts of admiralty exercised jurisdiction at the time our Constitution was adopted.' We must, therefore, in all cases, whether or not there has been an occasion in our courts for the exercise of jurisdiction in a particular case, look to the maritime courts on the Continent, and to works on admiralty jurisdiction, to determine whether the case in hand is embraced by our constitutional provision.

Nor can I partake of the regret just expressed, that the jurisdiction of the court of admiralty in this country is not more defined.

I know at one time it was thought so, but subsequent investigations of it by our judges and jurists, I believe, have given a very general impression to American lawyers, that the constitutional clause, 'all cases of admiralty and maritime jurisdiction,' is as well and as definitely expressed, for the purpose meant, as it can be, and that it leaves nothing doubtful, except as to some cases of which the admiralty court in England took jurisdiction, which had been there exclusively within the cognizance of the courts of common law, and also of other cases in the Continental maritime courts, which did not relate to 'things done upon the sea, or to contracts, pleas, and quarrels which were not maritime.' Among the latler is certainly not a case of general average, and, except in England, I believe, the jurisdiction of the maritime courts has always embraced, both in rem and in personam, 'all cases of freight, charter-parties, mariners' wages, debts due to materialmen for the building and repairing of ships,' and all accidents upon the sea, affecting the rights of those having any interest in the cargo of a vessel, or who are in any way connected with her. I do not think that there is any thing doubtful in the terms used in the Constitution. 'To all cases of admiralty and maritime jurisdiction,' means all cases arising or happening on the sea, growing out of war or commerce, and all cases strictly of maritime contracts,-admiralty jurisdiction meaning originally those cases of which the admiral took cognizance in virtue of his office upon the sea, and maritime, these also, with all others arising out of the perils or accidents upon the sea; trespasses upon it of all kinds; contracts relating to commerce in which a sea service was to be rendered; contracts for building and repairing of ships, and for money loaned upon bottomry. Now, it having been repeatedly ruled by this court, that its admiralty jurisdiction was not limited by what was the jurisdiction in England when the Constitution was adopted, the principal difficulty in the way of interpreting the words of the Constitution relating to it has been overcome. And if we will but rid ourselves of those doubts in respect to what are cases for a maritime court caused by the limitation of them in England, I do not think we shall ever be at a loss to determine what cases are within the admiralty jurisdiction of the courts of the United States; and I believe the whole of them will be found to make no trespass upon, or interference with, the jurisdiction of the other courts of the United States, or with those of the States, either as to the modes of proceeding in them, or as to the suits of which they have cognizance.

title: Cutler v. Rae/Dissent Wayne


text:
Page:The Swiss Family Robinson - 1851.djvu/70

  across the beams; but not fixed, as in time of danger it might be necessary rapidly to remove the bridge. My wife and I were as much excited as the children, and ran across with delight. Our bridge was at least ten feet broad.

Thoroughly fatigued with our day of labour, we returned home, supped, and offered thanks to God, and went to rest.

next morning, after prayers, I assembled my family. We took a solemn leave of our first place of refuge. I cautioned my sons to be prudent, and on their guard; and especially to remain together during our journey. We then prepared for departure. We assembled the cattle: the bags were fixed across the backs of the cow and the ass, and loaded with all our heavy baggage; our cooking utensils; and provisions, consisting of biscuits, butter, cheese, and portable soup; our hammocks and blankets; the captain’s service of plate, were all carefully packed in the bags, equally poised on each side the animals.

All was ready, when my wife came in haste with her inexhaustible bag, requesting a place for it. Neither would she consent to leave the poultry, as food for the jackals; above all, Francis must have a place; he could not possibly walk all the way. I was amused with the exactions of the sex; but consented to all, and made a good place for Francis between the bags, on the back of the ass.


text:
Liews v. Lewis/Dissent McLean

Mr. Justice McLEAN.

I dissent from the opinion just pronounced. It overrules a solemn decision of this court in the case of Ross et al. v. Duval et al., 13 Peters, 57. And as that opinion is relied on as sustaining the decision now given, I shall examine it.

The judgment of the court in that case was placed upon two grounds. First, that the action was barred under the statute of Virginia of 1792. That act provided, that where an execution had not issued on a judgment, it might be revived within ten years, or where an execution was issued, and there was no return, other executions might be issued within the ten years from the rendition of the judgment. There was a saving in the act in behalf of infants and persons beyond the Commonwealth, 'giving five years after the removal of the disability to proceed on the judgment.'

By the act of 1826, the saving in the act of 1792 was repealed, but the time of the bar was to be computed, as specially provided, from the time of the repeal of the saving.

The court considered the act of 1792 as a limitation on the judgment, and, as more than ten years had elapsed, that all proceedings on the judgment were barred. There was nothing in the pleadings or evidence which showed that the plaintiff was within the saving of the statute.

And the court remark,-'There is another view of this case, which, though not much considered in the argument, is deemed important by the court.' 'And this arises under the process act of 1828,' &c. 'If the act of 1792, or any part of it, is to be considered as a process act merely, and not an act of limitations, the act of 1828 makes it the law of Congress for the State of Virginia, and gives immediated effect to it.' 'If it be viewed as an Act of limitations merely, and not for the regulation of process, it then takes effect as a rule of property, and is a rule of decision in the courts of the United States under the thirty-fourth section of the Judiciary Act.' 'In either case, effect is given to the act of 1792, and it is decisive of the present controversy.'

'But if it be considered, as contended, an act of limitations adopted by the act of 1828, the court are to give a construction to the act of 1828. If this be clear in its provisions, we are bound to give effect to it, although it may, to some extent, vary the construction of the act of 1792. And this is no violation of the rule that this court will regard the settled construction of a State statute as a rule of decision. For in this case the construction of the State law, in regard to the effect it shall have, is controlled by the paramount law of Congress.'

'The judgment in the Circuit Court was entered in 1821, so that seven years of the ten years' limitation of the act of 1792 had run when it was adopted by the act of 1828. Now the question is, shall no effect be given to this act of Congress in Virginia before its passage, because of the construction by the Virginia courts of the act of 1792?'

'It must be recollected, that this act of 1828 is a national law, and was intended to operate in the national courts in every State. As it regards some of the States, it may at first have operated less beneficially in them than in others; but its provisions took immediate effect in all the States.'

'It is a sound principle, that where a statute of limitations prescribes the time within which suit shall be brought, or an act done, and a part of the time has elapsed, effect may be given to the act; and the time yet to run, being a reasonable part of the whole time, will be considered the limitation in the mind of the legislature in such cases.'

'There may be some contradictory decisions on this point, in some of the States, which have been influenced by local considerations, and the peculiar language or policy of certain acts of limitations. But the rule is believed to be founded on principle and authority.'

I have cited largely from the above decision, to show that the point was distinctly considered and decided, as arising under the act of 1828, that effect may be given to a statute of limitations, where a part of the time has run; but a reasonable part of the whole time has yet to run. And this is the principle which is repudiated in the case under consideration. I have a distinct recollection, that the point was first suggested by the lamented Justice Story, and was discussed, and the principle was laid down with the entire concurrence of the court, so far as I know. There was no dissent expressed, either in consultation or on the bench.

It is true there was another ground on which the decision was rested; but it was also placed upon this ground, so that one ground as well as the other was ruled by the court. In the case of Ross, the court say,-'The saving clause of the act of 1792, as to non-residents, is repealed, the only effect of which is to bring within the limitation of the statute of 1792 those who were within its saving clause, and against whom the statute had not begun to run. Against such persons the statute could not begin to operate, until the repeal of the exception by the act of 1826.' And that remark is considered by the court, in the case before us, as having been made on general principles. Now such was the express provision of the act of 1826, that is should take effect from its date, and the remark was made in reference to that provision.

There is no rule better settled, in the construction of statutes of limitations, than that effect must be given to them according to their language. If they make no exception in favor of infants, femes coverts, or non-residents, the courts can make none. And when the exceptions of a statute of limitations are repealed, the act stands as though it had been originally passed without them. In Jackson v. Lamphier, 3 Peters, 280, the court say,-'The time and manner of their operation, [statutes of limitations,] the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the legislature. Cases, however, may occur, where the provisions of the law on these subjects may be so unreasonable, as to amount to a denial of a right, and to call for the interposition of the court. If the legislature of a State should pass an act by which a past right of action shall be barred, and without any allowance of time for the institution of a suit in future, it would be difficult to reconcile such an act with the express constitutional provisions in favor of the rights of private property.' It must be admitted that the legislature could not bar a claim, to which there was no bar; but no one can doubt that a statute may bar claims where the right of action existed, and a reasonable part of the whole time of the statute has to run. This is often done in some of the States. But, while it is not doubted that the legislature may do this, it is objected that it cannot be done as a matter of construction.

This objection is more plausible than sound. The statute creates a bar, and the question arises on its construction, whether it is 'so unreasonable as to amount to to a denial of a right,' in the language of this court in the case above cited. If the answer to this shall be in the affirmative, then, in the language above cited, 'it would be difficult to reconcile such an act with the express constitutional provisions in favor of the rights of private property.' But if the question can be answered in the negative, then a court is bound to give effect to the statute. And here is an answer, in the words of this court, to the principal ground taken in the case under consideration, and on which the decision is founded. If the court may determine whether a statute is so unreasonable as to cut off a private right, of necessity they may decide whether it is not so reasonable as to be enforced.

In the case before us, the Illinois act of 1827 limits the right of action to sixteen years, and the proviso gives the same time to sue to a non-resident, after he shall come within the State. But this proviso was repealed by the act of 1837, which placed residents and non-residents, as to the time of bringing an action, on the same footing. The plaintiff's cause of action accrued under the act of 1827; in 1837, the saving being repealed, six years were left for the statute to run to bar the claim. Was this a reasonable time? The answer must be in the affirmative. Then the act is not unconstitutional. It deprives the party of no right. In the language of the court in the case of Ross v. Duval, 'the time yet to run, (when the proviso was repealed,) being a reasonable part of the whole time, will be considered the limitation in the mind of the legislature, in such cases.' There can be no mistake as to the point decided by the court; and that point is directly opposed to the decision now made. In such cases, it is always better to overrule a former opinion directly, than to destroy its force by indirection. In their former opinion the court say, 'The rule is believed to be founded on principle and authority.'

In statutes of limitations it is usual to say, they shall begin to run from the time the action shall hereafter accrue, and when a saving of such act is repealed, that it shall operate form the date of the repeal; and if these provisions be not in the acts, they will, as a matter of course, take effect upon their passage. They must take effect from their passage, unless the language shows the time is to be computed from the date of the act. Without this provision, the question would arise whether a reasonable part of the time allowed by the statute, from the time the action accrued, had yet to run, as before remarked.

In Luckett v. Dunn and Bass, 3 Litt. 218, the court say,-'But the privilege previously allowed to persons who might be out of the country when their cause of action, or right of entry, accrued, to maintain their action within ten years after their return, was expressly repealed by the first section of the act of January, 1814, which, by a subsequent clause in the third section of the same act, was to take effect at the expiration of six months from its passage; and it was not until more than a year after the passage of that act, that this suit was brought by Luckett in the Circuit Court. It is obvious, therefore, that the absence of Buckner Pittman cannot have prevented the time which has elapsed since the lot had been held adversely by the defendants, and those through whom they claim, from barring the plaintiff's action.

The rule of so construing a statute as not to give it a retrospective effect is admitted. And a legislature can never be presumed to intend to destroy a vested right. Indeed, they have no power to pass such a law. But a law may be constitutional, and yet have a retrospective effect. Matthewson v. Satterlee, 2 Peters, 380. In the case under examination, it is not proposed to give the statute a retrospective effect, or to affect in any degree vested rights by a construction of it. The only question is, whether the six years that the statute had to run, on the repeal of the saving, is a reasonable part of the whole time required by the act to constitute a bar. The plaintiff, though not a resident of the State, might have sued so soon as the right of action accrued.

title: Liews v. Lewis/Dissent McLean


text: The Swiss Family Robinson - 1851/Chapter IX


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

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.