In 1796, when Delassus was commandant of the port of New Madrid,
he exercised the powers of subdelegate and had authority, under the
instructions of the Governor General of Louisiana, to make
conditional grants of land.
He made a grant to Clamorgan, who stipulated, upon his part,
that he would introduce a colony from Canada for the purpose of
cultivating hemp and making cordage.
This obligation he entirely failed to perform.
By the laws and ordinances of the Spanish colonial government,
which this Court is bound under the act of 1844 to adopt as one of
their rules of decision, this condition had to be performed before
Clamorgan could become possessed of a perfect title.
The difference between this case and that of Arredondo
explained.
If the Spanish governor would have refused to complete the
title, this Court, acting under the laws of Congress, must also
decline to confirm it.
After the cession of the Province of Louisiana to the United
States, Clamorgan could not legally have taken any steps to fulfill
his condition. He was forbidden by law. By the treaty of cession,
no particular time was allowed for grantees to complete their
imperfect grants. It was left to the political department of the
government, and Congress accordingly acted upon the subject.
The 3d day of March, 1804, was the time fixed by Congress, and
the grant must now be judged of, as it stood upon that day.
Glenn and Thruston, the appellants, filed a petition in the
District Court of Arkansas, on 24 January, 1846, in virtue of the
act of 1824, as revived by the act of 1844, claiming confirmation
of a concession of a large tract of country which lies partly in
Arkansas and partly in Missouri, consisting of nearly half a
million of acres of land and known as the Clamorgan grant.
Page 54 U. S. 251
The circumstances of this grant are fully set forth in the
opinion.
The district court decided against the claim, and the
petitioners appealed to this Court.
Page 54 U. S. 252
MR. JUSTICE CATRON delivered the opinion of the Court.
In August, 1796, James Clamorgan petitioned Colonel Delassus,
then acting as commandant of the post and dependency of New Madrid,
for a grant of land fronting on the Mississippi River for many
miles and running back to the western branches of White River,
including a section of country equal in area to 536,904 arpens, as
was afterwards ascertained by measurement. To obtain title and
possession of this large quantity of land, Clamorgan represented,
that he was a merchant residing in St. Louis; that he had been
strongly encouraged by the Governor-General of the Province of
Louisiana, to establish a manufactory of cordage, fit and proper
for the use of his Spanish Majesty's vessels, and especially for
the necessities of the
Havana, to which place His
Excellency desired the petitioner to export the cordage, under his,
the Governor-General's protection, of which facts the commandant
was advised, so that he might exercise his power to favor an
enterprise likely to become very important to the prosperity of the
dependency, and very lucrative to all the inhabitants of Upper
Louisiana. Furthermore, that the petitioner, Clamorgan, was then
connected in correspondence and interest with a powerful house in
Canada, which might procure for him a sufficient number of
cultivators to teach in that region
Page 54 U. S. 253
the manner of cultivating hemp, and fabricating it into various
kinds of cordage, in the most perfect manner, so as thereby to
respond to the views of the general government, which desired the
prosecution of this enterprise by all proper and honest means that
possibly could be used in order to exempt His Majesty from drawing
in future from foreigners this article so important for the
equipment of his vessels.
Clamorgan further stated that
"It is with this hope that the petitioner has actively made the
most pressing demands to obtain from his correspondents in Montreal
a considerable number of people proper for this culture who must of
necessity by inducement be attracted hither, although at this
moment the political circumstances of Canada appear to oppose it,
but in more favorable times hereafter this object may undoubtedly
be obtained. Notwithstanding which, the petitioner is obliged to
assure himself, in advance, from you, Monsieur, a title which may
guarantee to him the proprietorship of a quantity of arable land,
proportioned to his views, in order to form an extensive
establishment, as soon as the time shall appear favorable to his
enterprise, and as soon as his correspondents shall be able,
without compromitting their sense of duty, to cause to emigrate to
this country the number of people necessary to give birth to this
culture, so much desired by the government."
"Considering, Monsieur, this exposition of the petitioner, and
the particular recommendations of His Excellency the
Governor-General of the province, the petitioner hopes that you
will be pleased to grant him the quantity of land which he desires
to obtain, as well in order to favor him, the execution of all
which may contribute to the future success of his project, as to
furnish him the means of attracting hereafter from a foreign
country an emigration of cultivators, which may not, perhaps, be
obtained until after a considerable lapse of time, and upon
promises of rewards, which the petitioner will be obliged to
fulfill in their favor."
The land solicited is then described, and the petitioner
proceeds to set forth the title he desires:
"To the end that as soon as it may be in the power of the
petitioner, he may be able to establish and select, in the tract of
land so demanded, those portions which shall be best fitted to
improve for the culture of hemp; because, inasmuch as a great tract
of said lands is now drowned in swamps and unimprovable lowland,
making it impossible to fix establishments in its whole extent; all
to be done that the petitioner may enjoy the land, and dispose of
it always as a property belonging to him, his heirs or assigns; and
also may distribute them, or part of them, if he think fit, in
favor of such person or persons as he may judge proper, to attain,
as far
Page 54 U. S. 254
as on him depends, the accomplishment of his project; and the
petitioner will never cease to return thanks for your favors."
To this demand of Clamorgan, the commandant responded, and
proceeded to grant as follows:
"Since, by the exposition contained in this petition, the means
of the petitioner are apparent to me, and his new connection with
the house of Todd, which will be able to facilitate to him the
accomplishment of the enterprise proposed, the profit whereof, if
it succeed, will redound in part to the advantage of this remote
country, miserable on account of its small actual population; and I
giving particular attention to the recommendations which Senor the
Baron de Carondelet, Governor-General of these provinces, has
communicated to me, when he thought fit to appoint me commandant of
this post and its dependencies, 'to seek by all means the mode of
increasing the population, and of encouraging agriculture in all
its branches, and particularly the cultivation of hemp,' it
appearing to me that the propositions which the petitioner makes
are conducive to the attainment of this last recommendation. In
virtue of this, I concede to him, for him and his heirs, the tract
of land which he solicits, in the place and with the same
boundaries that he prays for, provided there is injury to no one.
and so that the same may be established, he shall cause a survey to
be made, not obliging him to accomplish this immediately, as from
the excessive extent of space, it would cause him great expense, if
it were done before the arrival of the families, which he is bound
to cause to come from Canada, but so that on their arrival, and
being put in possession, it shall be his duty to secure his
property, by means of exercising the power of survey, in order
afterwards that he may make application to the Governor-General, to
obtain his approval with the title in form of this his
concession."
By various conveyances, the foregoing claim was vested in Glenn
and Thruston, who filed their petition in the Circuit Court of
Arkansas, seeking to have it confirmed according to the act of
1844. They set forth Clamorgan's application; the commandant's
decree thereon, and the mesne conveyances.
The attorney of the United States answered, and, among other
grounds of defense set up, alleged, that he was wholly uninformed
as to the several statements and allegations contained in the
petition; that he denied the said statements and allegations, and
required full proof thereof, as well as of all other matters and
things necessary or material, to establish the validity of the
claim of said James Clamorgan.
On these issues, the parties went to trial.
The petitioners established by proof that Clamorgan's
application, and the governor's decree thereon, were genuine,
and
Page 54 U. S. 255
also proved a due execution of the several conveyances vesting
title in Glenn and Thruston. No other evidence was introduced by
either side. The district court dismissed the petition, and from
that decree an appeal was prosecuted to this Court.
No controversy has been raised drawing in question the validity
of the mesne conveyances; nor do we suppose there is any difficulty
in locating the land demanded in Clamorgan's petition.
Prima
facie, its locality is sufficiently described to authorize a
survey thereof according to Spanish usages.
As regards the commandant's power to make the concession to
Clamorgan there is more difficulty. In 1796, when Delassus was
commandant at the post of New Madrid, he also acted as subdelegate
and exercised the faculty of granting concessions for, and ordering
surveys of land. In the exercise of his functions he was directly
subordinate to the Governor-General at New Orleans, and acted
according to his instructions. Nor was he in any degree dependent
on the Lieutenant-Governor of Upper Louisiana, residing at St.
Louis; as appears by a letter of August 26, 1799, from Morales to
Delassus reciting the facts. The letter is found in document, 12 of
Senate Documents, 2d Session 21st Congress, 29, and filed as
evidence by judge Peck preparatory to his trial before the Senate
of the United States.
In a deposition of Delassus, forming part of the documents filed
before the board of commissioners for Missouri in 1833, and
afterwards returned by them for the consideration of Congress,
Delassus states the fact that he, as commandant at New Madrid,
exercised the powers of subdelegate. Doc. No. 59, 17, H.Repts. 1st
Session, 24th Congress.
This commandant's powers were therefore coextensive with those
of the lieutenant-governor at St. Louis, in distributing the public
domain. Having acted under the governor general, to whose orders
and instructions the commandant was bound to conform, it becomes
necessary to ascertain what these instructions were in the present
instance; and taking the facts stated in Clamorgan's memorial, and
in Delassus' decree thereon, to be true, as we are compelled to do,
it is sufficiently manifest, as we think, that the commandant did
stipulate with Clamorgan, in accordance with the governor-general's
instructions. That the governor-general had power thus to contract
was held by this Court, when the agreements of Maison Rouge and
Bastrop were before it for adjudication, and having done the same
through his deputy in this instance, the acts of that deputy cannot
be called in question, on the assumption that he exceeded his
powers.
In the document No. 59, above referred to, Delassus states
Page 54 U. S. 256
what his practice was, in giving out concessions. He kept no
books in which the fact was recorded; all he did was to endorse his
decree on the petition, and return it to the party demanding the
land, and the party might hand it to the surveyor, or retain it at
his option. That he, Delassus, believed the surveyor made a note of
the concession of record, but whether before or after the survey
was made he knew not, as that matter did not concern the deponent.
That no time was limited within which the party was bound to
survey.
Thus it appears that Clamorgan got the paper title relied on, in
the ordinary form, and which he retained in his own hands until
after Upper Louisiana was delivered to the United States in March,
1804. No possession was taken of the land, or any part of it; nor
was it surveyed during the time Spain governed the country; nor has
any claimant under Clamorgan ever had possession, so far as this
record shows.
The surveys produced to us are private ones, and of no value in
support of the claim. And this brings us to a consideration of the
mere title paper, standing alone. On its true meaning this
controversy depends.
1. The petition of Clamorgan, and Delassus' decree on it, must
be construed together, there being a proposition to do certain acts
on the one side, and an acceptance on the other, limited by several
restrictions.
2. What is stated in either paper as to facts or intent must be
taken as true.
Such are the rules laid down in
Boisdore's
Case, 11 How. 87, and which apply here.
The country was vacant, and greatly needed population, which
could only be drawn from abroad, and this population Clamorgan
stipulated that he would supply, and establish a colony from Canada
on the land. That he would introduce cultivators of hemp, and
artisans skilled in the manufacture of cordage, and would grow hemp
and make cordage to an extent so large as to be of national
consequence.
On the faith of these promises the grant was made. As already
stated, no step was taken by Clamorgan to perform the contract; all
that he did was a presentation of his petition, and the obtaining
of Delassus' approval and decree on it. This paper he retained
about thirteen years, when it was assigned to Pierre Choteau, May
2, 1809, by a deed of conveyance for the land claimed. In view of
these facts, several legal considerations arise.
It was held in
Arredondo's
Case, 6 Pet. 711, that by consenting to be sued,
the United States had submitted to judicial action, and considered
the suit as of a purely judicial character,
Page 54 U. S. 257
which the courts were bound to decide as between man and man
litigating the same subject matter, and that in thus deciding, the
courts were restricted within the limits and governed by the rules
Congress had prescribed. The principal rules applicable here are
that in settling the question of validity of title, we are required
by the act of 1824 to proceed in conformity with the principles of
justice according to the law of nations, the stipulations of the
treaty by which the country was acquired and the proceedings under
the same, the several acts of Congress in relation thereto, and the
laws and ordinances of the government from which the claim is
alleged to have been derived.
When deciding according to the law of nations and the
stipulations of the treaty, we are bound to hold that such title as
Clamorgan had by his concession or first decree stood secured to
him as private property, and that, the claim being assignable, the
complainants represent Clamorgan. And this brings us to the
question as to what right was acquired by the concession according
to the laws and ordinances of the Spanish Colonial government
existing and in force when the grant was made. By these, the
commandant Delassus had authority to contract and give concessions
and make orders of survey by first decrees, either with or without
conditions, as this Court held in the case of
Soulard v.
United States, 10 Pet. 100, provided the concession
was founded on a consideration
prima facie good, either
past, when the concession was made, or to follow in future. Here
the consideration was to arise by future performance on the part of
the grantee. But it is insisted that forasmuch as a title vested in
Clamorgan by the grant to him, even admitting that it was
encumbered with conditions, still, as their performance was to
happen subsequent to the vesting of the estate, the want of
performance could only be taken advantage of by a proceeding
instituted by government for that especial purpose; nor could want
of performance be set up as a defense in this suit.
If the premises assumed were true, the conclusion would
necessarily follow, and
Arredondo's Case is relied on in
support of this position and as governing the present case. That
proceeding was founded on a perfect title, having every sanction
the Spanish government could confer. It was brought before the
courts according to the 6th section of the Act of May 23, 1828,
which embraced perfect titles and was only applicable to suits in
Florida.
The subsequent condition there relied on to annul the grant was
rendered immaterial, and perhaps impossible, by the grantor
himself, as this Court held, and the grantee discharged from its
performance. But in
Clamorgan's Case the conditions to
occupy
Page 54 U. S. 258
and cultivate were precedent conditions; they addressed
themselves to the governor-general, and their performance was
required in advance. Before any right existed in Clamorgan to apply
for a complete title or even to have a public survey preparatory to
such application, he was bound by his contract to establish his
colony on the land, and furthermore to set up his manufactory to
make cordage and to supply it with hemp grown on the land, unless
these conditions were waived on the part of the Spanish government.
And as we are called on by the complainants to adjudge the validity
of this claim and to order that a patent shall issue for the land
in the name of the United States, it necessarily follows the same
duty is imposed on us that would have devolved on the
governor-general had the Spanish government continued in
Louisiana.
By the Spanish regulations, Clamorgan was not recognized as
owner of a legal title without the further act of the King's
deputy, the governor-general, or the intendant-general after the
power to make perfect grants was conferred on him. Until this was
done, the legal title remained in the Crown, and the same rule has
been applied in this country -- no standing can be allowed to
imperfect and unrecognized claims in the ordinary judicial
tribunals until confirmed either by Congress directly or by a
special tribunal constituted by Congress for that purpose.
For our opinion more at large on this subject, we refer to the
case of
Menard v.
Massey, 8 How. 305,
49 U. S.
306-307.
As we are asked to decree the final title, and bound to do so in
like manner that the Spanish governor-general or intendant was
bound, it follows we may refuse for the same legal reasons that
they could refuse. And the question presented is whether we are
bound to refuse, according to the face of the contract sued on and
in conformity to our previous decisions in other cases depending on
similar principles?
Very many applications made for perfect titles to the district
courts under the act of 1824 have been resisted because subsequent
conditions had not been complied with: first such as mill grants in
Florida, where the usual quantity of 16,000 acres was given by
concession, with a condition that the mill should be built within a
specified time; second, where grants were made for the purpose of
cultivation and no cultivation followed, as in the
Case of
Wiggins, 14 Pet., and of
Boisdore, 11 How.; third,
where by the concession parties were required by special
regulations to levee and ditch on the river's front in Lower
Louisiana. These were subsequent conditions just as much as the
introduction of a colony of hemp-growers and the manufacture of
cordage by Clamorgan, and yet no one has ever successfully
maintained that a party having such concession could
Page 54 U. S. 259
hold the land and obtain a perfect title although he did not
build the mill nor occupy and cultivate nor levee and ditch,
founded on the assumption that performance was unnecessary. In all
these cases it was held that performance was a condition precedent
and the real equity, on which a favorable decree for a patent could
be founded under the act of 1824.
If Clamorgan's concession carries with it conditions similar in
principle, it must abide by this settled rule of decision. This
depends on the true meaning of his contract with the Spanish
authorities. He agreed to establish a colony by introducing a
foreign population and to grow hemp and manufacture cordage to an
amount so large as to make it a national object. By these promises
he obtained a concession for more than half a million of arpens of
land. A promise of performance was the sole ground on which the
Spanish commandant made the concession, and actual performance was
to be the consideration on which a complete title could issue.
So far from complying, Clamorgan never took a single step after
the agreement was made, and in 1809 sold out his claim on
speculation for the paltry sum of fifteen hundred dollars. Under
these circumstances, we are called on to decide in his favor
according to the principles of justice, this being the rule
prescribed to us by the act of 1824 and the Spanish regulations. To
hold that an individual should have decreed to him or to his
assignees a domain of land more than equal to seven hundred square
miles for no better reason than that he had the ingenuity to induce
a Spanish commandant to grant the concession, founded on
extravagant promises, not one of which was ever complied with,
would shock all sense of justice. And such decision would be
equally contrary to the policy pursued by Spain, which was to make
grants for the purposes of settlement and inhabitation, and not to
the end of mere speculation. We so held in
Boisdore's
Case, 11 How. 96, and the principle applies even
more strongly in this case than it did in that, as there something
was done towards compliance, and here nothing has been
attempted.
The remaining ground on which the complainants demand a
confirmation is the following:
"Because if the concession was upon conditions which should have
been complied with in order to vest the estate as against Spain,
whilst the conditions were practicable and might have been
performed by the grantee, the estate vested without such
performance, because the province was ceded by Spain before the
time for performance had expired and because of the change of
government, manners &c., consequent on that cession."
That Clamorgan could take no step after the change of government
is not open to controversy.
Page 54 U. S. 260
By the 14th section of the Act of March 28, 1804, which
established the territories of Orleans and Louisiana, Clamorgan was
prevented from doing any further act in support of his title, had
he been disposed so to do. He was positively prohibited from making
settlements on the land or making a survey of it, under the penalty
of fine and imprisonment. But no advantage resulted from this
provision to claimants whose concessions carried with them
conditions that had not then been complied with.
The 1st section of the act of 1824, in conformity to which we
are now exercising jurisdiction, limits the courts, as to the
validity of title and standing of the various claims, to the
condition they held before the tenth of March, 1804.
By the 3d article of the treaty of cession by which Louisiana
was acquired, it was stipulated that the inhabitants of the ceded
country should be admitted as soon as possible, and become citizens
of the United States, and be maintained in the free enjoyment of
their property in the meantime. But no time was provided by the
treaty within which conditions appertaining to imperfect grants of
land might be performed; this was left to the justice and
discretion of our government, and in a due exercise of that
discretion the acts of 1804 and 1824 were passed, and to these acts
of Congress the 2d section of the act of 1824 commands us to
conform.
The treaty addressed itself to the political department, and up
to the passing of the act of 1824, that department alone had power
to perfect titles and administer equities to claimants. And when
judicial cognizance was conferred on the courts of justice to
determine questions of title between the government and
individuals, the limits of that jurisdiction were prescribed,
to-wit, that no act done by the Spanish authorities or by an
individual claimant after 3 March, 1804, should have any effect on
the title, but that its validity should be determined according to
its condition at that date.
All claims lying within the territory acquired by the treaty of
1803 which have been brought before the courts according to the
acts of 1824 and 1844, have been compelled to abide by this test;
great numbers have been rejected, because the conditions of
occupation and cultivation had not been complied with before the
restraining act of 1804 was passed, or before 10 March, 1804. Nor
have the claimants under Clamorgan more right to complain than
others, his neglect extended through nearly eight years during the
existence of the Spanish government, whereas many similar claims
have been rejected where the neglect was not half so long.
If Clamorgan could come forward because of the prohibition and
be heard to excuse himself from performing the onerous
Page 54 U. S. 261
conditions his contract imposed, so could every other claimant
who had neither taken possession, nor in any manner complied with
his contract, do the same, and on this assumption, concessions
issued by France or Spain would be without condition, and a simple
grant of the land described in the paper. Its genuineness, and
proof of identity of the land, would settle the question of
title.
No tribunal has ever accorded any credence to this claim; two
boards of commissioners have pronounced it invalid -- the first in
1811 and the second in 1835 -- the latter on the ground that the
conditions of the grant had not been complied with. By this
decision it fell into the mass of public lands, according to the 3d
section of the Act of July 9, 1832, which declares that the lands
contained in the second class being those rejected shall be subject
to sale as other public lands. By the Act of 17 June, 1844, another
opportunity was afforded to apply to the district court for a
confirmation; that court agreed with the boards of commissioners,
and again declared the claim invalid because the conditions had not
been complied with, and dismissed the petition, and with this
decree we concur.
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the District of
Arkansas, and was argued by counsel. On consideration whereof, it
is now here ordered, adjudged and decreed by this Court that the
decree of the said district court in this cause be and the same is
hereby affirmed.