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December 1, 1853


THIS case was brought up by writ of error, from the District Court of the United States for the District of Iowa.

It was an action brought by petition, in the nature of an ejectment, by Chouteau, a citizen of Missouri, to recover seven undivided eighteenth parts of a large body of land, containing nearly one hundred and fifty thousand arpents; and including the whole city of Dubuque. Molony claimed under a patent from the United States. The documents upon which Chouteau's claim was founded are set forth in extenso in the opinion of the court; and as that opinion refers to Mr. Gallatin's report, it may be propert to give a history of the claim so that his report may be introduced. A large portion of the argument, in behalf of the plaintiff in error, consisted of reasons to show that Mr. Gallatin was mistaken. The following is the history of the case, as given by Mr. Cormick.

History of the Claim. In a case so free from doubt, the question arises, why did Congress assume that Dubuque's title was worthless, and sell the land?The answer to this question is, Mr. Gallatin, while Secretary of the Treasury, became prejudiced against the land titles of Upper Louisiana, and so much prejudiced against this particular title, that he construed it with reference, not to the grant itself, but to his pre existing prejudices; that he made a report adverse to the claim, and utterly misdescribed the document upon which that claim is based; that congressmen, when the question came up before them, referred, as was natural, to Mr. Gallatin's report, to see what it said about the title, and finding it there described as the grant of a mere personal permission of occupancy, revocable at will, they naturally concluded it was a fraudulent effort to obtain property, which the claimants knew they had no right to.

On the 3d of November, 1804, a treaty was made by General William Henry Harrison, Governor of the Indiana Territory, (of which the present States of Missouri and Iowa were then a part,) with the Sac and Fox Indians. An additional article was inserted to prevent the land granted to Dubuque from being considered as receded by the treaty. The Indians then acknowledged the validity of the grant. See p. 22 of Senate Doc. 350 of 1st Sess. 28th Cong.

On the 17th of May, 1805, Julien Dubuque and Auguste Chouteau, as his assignee of a portion of the land, jointly filed their claim.

On the 20th of September, 1806, a majority of the Board of Commissioners, John B. C. Lucas, dissenting, pronounced the claim to be a complete Spanish grant, made and completed prior to the first day of October, 1800.

In 3 Green's Public Lands, 588, will be found the translation of the title, which seems to have been the translation relied on by the Board, as well as by Mr. Gallatin. It is in the following words, namely:

(These documents are inserted, in the opinion of court, with some change of phraseology. There was much controversy, during the argument, as to the proper translation.)

On the 11th of April, 1810, the United States agent laid before the Board of Commissioners, in pursuance of section 6 of act of 2d March, 1805, (2 Statutes at Large, 328,) a list of documents, which list embraces this claim, pertaining to lead mines and salt springs in the Territory of Louisiana. 3 Green's P. L. 603.

In 1810, Mr. Gallatin, instead of reporting to Congress the action of the board relative to the claim, himself made an ex parte official report against it. 1 Clark's Land Laws, 958.

On the 19th of December, 1811, the following entry was made on the minutes of the Board of Commissioners, namely:

'December 19th, 1811. Present, a full board. On a question being put by John B. C. Lucas, commissioner, Clement B. Penrose and Frederick Bates, commissioners, declined giving an opinion. It is the opinion of John B. C. Lucas, commissioner, that the claim ought not to be confirmed.' 2 Green's P. L. 552.

The claimants were not parties to this last proceeding. It seems to have originated between the dissenting commissioner and the Secretary of the Treasury, who were under the impression that the sixth section of act of 2d March, 1805, which required the government agent 'to examine into and investigate the titles and claims, if any there be, to the lead mines within the said district, to collect all the evidence within his power, with respect to the claims and value of the said mines, and to lay the same before the commissioners, who shall make a special report thereof, with their opinions thereon, to the Secretary of the Treasury, to be by him laid before Congress,' &c., thereby authorized the Board, by an ex parte proceeding, to reverse their own decision made more than five years before.

Dubuque continued in possession of the land till his death, in 1810. During his life, he had exercised great influence over the neighboring Indians. But that influence had been much enhanced by the liberal presents he had made them. He died insolvent. That portion of the tract which he had not sold to Auguste Chouteau, was sold after his death, by order of court, to pay his debts. In the meanwhile the last war with England was approaching, and English emissaries were on the frontiers, inciting the savages to hostilities against our people. Our government was not then, as it now is, sufficiently strong to protect the frontiers.

In the latter part of 1832, the claimants thought the time had come when they might safely attempt the enjoyment of their rights, as the assignees of Dubuque, to the profits which might be realized from the lead mineral contained in the land. They accordingly employed an agent to lease to miners the right to dig on the land for lead. On the 5th of January, 1833, the following order was issued by the Major-General of the United States army:

(This was an order to remove the settlers by force.) See p. 28, Sen. Doc. 350, 1st Sess. 28th Cong.

In pursuance of this order, a military detachment was sent from Fort Crawford, and the claimants' tenants were driven off at the point of the bayonet, and their dwellings burnt.

The claimants at that time all lived in the State of Missouri, mostly at St. Louis. One of them, on his own behalf, and as agent for the others, went to Galena, in Illinois, to institute legal proceedings. He could not sue for the land, because after Missouri had come into the Union, as a State, there was no court which had jurisdiction of a suit brought for the recovery of the land. The federal government had in the meanwhile leased much of the land to lead diggers, and a considerable portion of the mineral dug on the land was taken to smelting furnaces at Galena, to be converted into lead. But much of the mineral then smelted at Galena was from land not embraced in this grant. The agent for the claimants, in order to test the question of title, brought suit for a lot of mineral, which had been brought to Galena. But he was not at the trial able to identify it, and a nonsuit was taken. The agent then came to Washington, and petitioned for redress during many successive sessions of Congress. Certain citizens of Kentucky had in the meanwhile, by intermarriage and by inheritance, become interested in the claim, and on their own account presented a memorial in January, 1837. Several memorials were also presented to the executive. Various bills were reported for the relief of the claimants, some of which passed in one house, and were never reached in the other, and others were voted down in the house in which they originated.

An act of Congress was passed the 2d of July, 1836, for the laying off the towns of Fort Madison and Burlington, in the county of Des Moines, and the towns of Belleview, Dubuque, and Peru, in the county of Dubuque, Territory of Wisconsin, and for other purposes. The towns of Dubuque and Peru, the lots of which were required by this act to be sold, are situated on the land embraced by the grant on which this suit is based. What is now the State of Iowa, constituted, on the 2d of July, 1836, a part of the Territory of Wisconsin.

On the 3d of March, 1837, an act, amendatory of the foregoing, was passed. The manner in which the town lots are to be sold is somewhat varied from the manner specified in act of 2d of July, 1836, 5 Stat. at Large, 178, 179.

(Then followed an enumeration of the reports of committees in each branch of Congress, and the acts passed, under one of which Malony claimed title.)

Mr. Gallatin's report was a succinct statement of the facts in the case, upon which he made the following remarks:

I. Governor Harrison's treaty adds no sanction to the claim; it is only a saving clause in favor of a claim, without deciding on its merits, a question which indeed he had no authority to decide.

II. The form of the concession, if it shall be so called, is not that of a patent, or final grant; and that it was not considered as such, the commissioners knew, as they had previously received a list procured from the records at New Orleans, and transmitted by the Secretary of the Treasury, of all the patents issued under the French and Spanish governments, in which this was not included, and which also showed the distinction between concession and patent, or complete title.

III. The form of the concession is not even that used when it was intended ultimately to grant the land; for it is then uniformly accompanied with an order to the proper officer to survey the land, on which survey being returned the patent issues.

IV. The governor only grants as is asked; and nothing is asked but the peaceful possession of a tract of land on which the Indians had given a personal permission to work the lead mines as long as he should remain.

Upon the whole, this appears to have been a mere permission to work certain distant mines without any alienation of, or intention to alienate the domain. Such permission might be revoked at will; and how it came to be considered as transferring the fee-simple, or even as an incipient and incomplete title to the fee-simple, cannot be understood.

It seems, also, that the commissioners ought note to have given to any person certificates of their proceeding, tending to give a color of title to claimants. They were by law directed to transmit to the treasury a transcript of their decisions, in order that the same might be laid before Congress for approbation or rejection.

On the trial of the cause in the District Court, the plaintiff admitted that the defendant was a purchaser under the government of the United States, and that patents had been regularly issued to him for the land in question.

The defendant demurred, and specified the three following causes of demurrer, namely:

1. That, admitting all the facts stated in the petition to be true, the plaintiff is not entitled to recover.

2. That, as appears by the exhibits to said petition, the plaintiff claims under an unconfirmed Spanish title.

3. That it appears, from the plaintiff's own showing, that he rests his title on an incomplete Spanish grant, and that defendant is in possession under a complete title from the United States.

A judgment final was rendered by the court below, in favor of the defendant on this demurrer. The assignments of error were.

1. The said District Court erred in deciding that the said petition of the said Henry Chouteau, and the matters therein contained, were not sufficient in law to maintain the said action of the said Henry Chouteau.

2. The said District Court erred in rendering judgment in favor of the said Patrick Molony against the said Henry Chouteau.

Upon these points of demurrer the case came up to this court, and was argued by Mr. Cornick and Mr. Johnson, for the plaintiff in error, and by Mr. Platt Smith, Mr. T. S. Wilson, and Mr. Cushing, (Attorney-General,) for the defendant in error.

The points which were made on behalf of the plaintiff in error are thus stated by Mr. Cornick.

The record presents but one question, namely: Was the grant which the Baron de Carondelet made to Julien Dubuque on the 10th of November, 1796, a complete title?

If it constituted a complete title, the judgment of the court below is erroneous; if it did not constitute a complete title, there is no error in the record.

The decisions of this court which established the doctrine that a grant of land of specific locality, by the Spanish land-granting officer, vested in the grantee a complete title, are so numerous and so uniform that it would be considered unnecessary to cite authorities to sustain this grant, but for the fact that the United States government has, by selling the land, assumed it to be a part of the public domain. For this reason many authorities will be cited in support of propositions of law, which would otherwise be regarded as self-evident. And an explanation will be submitted of the causes which probably induced Congress to disregard a grant, the validity of which is wholly free from doubt the moment it is viewed from the proper point of view.

I. The Baron de Carondelet had power to make the grant. That interest which the Governor-General intended to grant, whether fee-simple or a tenancy at will, whether limited or unlimited in the duration of the estate, was the interest which, by virtue of the grant, vested in Dubuque. See United States v. Arredondo, 6 Pet. 691; Percheman v. United States, 7 Pet. 51; Delassus v. United States, 9 Pet. 134.

In the United States v. Moore, 12 How. 217, this court recognized Carondelet's power as extending from January 1, 1792, to the beginning of 1797. It was within this period that this grant was made.

In Delassus v. United States, 9 Pet. 117, the court say: 'The regulations of Governor O'Reilly were intended for the general government of subordinate officers, and not to control and limit the power of the person from whose will they emanated. The Baron de Carondelet must be supposed to have had all the powers which had been vested in Don O'Reilly.' In Smith v. United States, 4 Pet. 511, the same principle is established. See the printed record.

In United States v. Arredondo, 6 Pet. 728, it is said that the actual exercise of the power of granting land, by a colonial governor, without any evidence of disavowal, revocation, or denial by the king, and his consequent acquiescence and presumed ratification are sufficient proof–in the absence of any to the contrary–(subsequent to the grant) of the royal assent to the exercise of his prerogative by his local governors.

According to the principle here established, the King of Spain must be considered as having acquiesced in, and assented to the grant by the Baron de Carondelet to Dubuque, unless his dissent be proved by the defendant.

In United States v. Arredondo, 6 Pet. 729, the court say: 'It is an universal principle, that when power or jurisdiction is delegated to any public, officer or tribunal, over a subject-matter, and its exercise is confided to his or their discretion, the acts so done are binding and valid as to the subject-matter; and individual rights will not be disturbed collaterally for any thing done in the exercise of that discretion, within the authority and power conferred. The only questions which can arise between an individual claiming a right under the acts done, and the public or any one denying its validity, are power in the officer and fraud in the party. All other questions are settled by the decision made, or the act done by the tribunal or officer, whether executive, legislative, judicial, or special, unless an appeal is provided for, or other revision, by some appellate or supervisory tribunal, is prescribed by law.'

This court, in Strother v. Lucas, 12 Pet. 410, say: 'Where the act of an officer, to pass the title to land, according to Spanish law, is done contrary to the written order of the king produced at the trial, without any explanation, it shall be presumed that the power has not been exceeded; that the act was done on the motive set out therein, and according to some order known to the king and his officers, though not to his subjects; and courts ought to require very full proof that he had transcended his powers, before they so determine it.'

II. The description of the land by Dubuque, in his petition, completely fixed its locality, and dispensed with the necessity of a survey.

(The argument upon this point is omitted.)

III. The assent of the Baron de Carondelet to the petition establishes the truth of its statements, and the moment he assented, the sale by the Indians, to Dubuque, thereby ceased to be a link in the chain of title.

IV. Our government cannot grant or sell land which does not belong to it.

But the principal part of the argument of the counsel for the plaintiff in error was directed to show that Mr. Gallatin had erred in the report which he made and the four conclusions to which he came, which have been already stated in this report. These errors were said to be the following:

Mr. Gallatin's first error. The language near the close of the report–'Upon the whole, this appears to have been a mere permission to work certain distant mines, without any alienation of, or intention to alienate the domain. Such permission might be revoked at will; and how it came to be considered as transferring the fee-simple, or even as an incipient and incomplete title to the fee-simple, cannot be understood.'

Following what the secretary had already said about Todd's report–('The governor refers the application for information to A. Todd, who had the monopoly of the Indian trade on the Mississippi. A. Todd reports that no objection occurs to him, if the governor thinks it convenient to grant the application, provided that Dubuque shall not trade with the Indians without his permission,') necessarily impressed congressmen, who relied on Mr. Gallatin's report for their views of the grant, with the belief, not only that the claim set up by Dubuque and Chouteau, before the commissioners, was a fraudulent pretence to what they knew they had no right to, but also that A. Todd recommended the granting to Dubuque of a mere personal permission of occupancy. Mr. Gallatin professes to describe the grant; yet no one from his description could even suspect that Todd had in his report used the language 'As to the land for which he asks, nothing occurs to me why it should not be granted, if you deem it advisable to do so; with the condition nevertheless that the grantee shall,' &c.

Here we find a most material variance between the grant itself and Mr. Gallatin's description of it. Congress did really cause the land, covered by the grant, to be sold; but we here see very clearly that Congress passed no judgment against the validity of the title on which this suit is based, but that it only decided against the title which Mr. Gallatin's violently excited prejudices fancied to exist. If a man had been indicted for the larceny of this document, and it was a much misdescribed in the bill of indictment as it is in this report of Mr. Gallatin, surely no court would hesitate to decide, on objection properly made, that the grant to Dubuque, represented by any one of the translations ever made of it, could not be given in evidence in support of the indictment.

Mr. Gallatin's second error. In the first sentence of his report he speaks of the claim as containing upwards of one hundred and forty thousand acres of land.

Whatever may have been Mr. Gallatin's opinion of his knowledge of the law of Spanish grants, it is now very certain that neither he, nor any other American citizen, understood the subject at that time. But we must suppose that so able a Secretary of the Treasury understood arithmetic. Yet he so exaggerated the amount embraced by this claim as to demonstrate, that if he knew how to calculate quantities, he was so prejudiced against the claim that he was unable, in this particular case, to make such calculation. Even if the distance from the little Makoketa to the Mesquabysnenque, which Dubuque states to be about seven leagues along the bank, were a straight line, so as to give a front of exactly seven leagues, so as to make the claim embrace exactly twenty-one leagues of superficies, there would only be one hundred and twenty-five thousand and sixty acres. But as in fact the river bank curves there, as it does everywhere else, and curves very much–and as what Dubuque calls about seven leagues along the bank, is really less than seven, though upwards of six–the real quantity embraced by the claim is a little over ninety-seven thousand acres. Mr. Gallatin committed an error of about forty-seven thousand acres, in fact. But, when he made his report, he did not have the data by which accurately to calculate the number of acres. Yet he then had data enough to show that he was exaggerating, at least to the extent of fourteen thousand nine hundred and sixty acres.

Mr. Gallatin's third error. He contradicts himself in describing the sale by the Indians to Dubuque. In the commencement of his report, he describes it as a purchase 'from the Indians, of an extent of seven leagues front on the Mississippi, by three leagues in depth, containing upwards of one hundred and forty thousand acres.' He afterwards speaks of it as a sale of the 'hill and contents of the land (or mine) found by Peosta's wife.' He afterwards speaks of the right acquired by Dubuque as a 'personal permission to work the lead mines as long as he should remain.'

Mr. Gallatin's fourth error. Remark No. 2 of the report involves the proposition, that concession and patent are two things entirely distinct. And, at the same time, he uses such language as shows he considered that patent and final grant were synonymous, and that a grant was not final unless it was evidenced by a patent.

(The argument upon this head, and also that under the head of the eighth error, are omitted for want of room, as they were both very elaborate.)Mr. Gallatin's fifth error. In his remark No. 3, he considers a survey an essential prerequisite to a complete grant. But we have seen that many decisions of this court have established that a description which fixes the boundaries, dispenses with the necessity of a survey.

He seems to have had a confused idea that this grant to Dubuque was vicious, because it was not made in accordance with the regulations of O'Reilly, Gayoso, or Morales. But a very slight examination of those regulations would have shown him the impossibility of surveying the land in the manner there required; as in the wilderness country where Dubuque made his settlement, there was no neighbor, no syndic, no officer of any description. He would then have seen that to make an actual survey, a prerequisite would amount to denying the power to the Baron de Carondelet to grant the land.

Mr. Gallatin's sixth error. In remark No. 3, he advances the proposition that, after the grant of an inchoate title, the execution of the order of survey was the only prerequisite to the issuance of a patent. He advances this as a universal proposition. But in the great majority of cases this is untrue. Observe, for example, the order of the governor-general in the inchoate grant to Owen Sullivant. This error of the secretary is material; for it shows he was extremely ignorant of the laws he usurped the power to pass judgment on.

Mr. Gallatin's seventh error. He adopted as a fundamental principle of Spanish law, to guide his decision, the erroneous hypothesis that all grants, whether in the wild Indian country or not, must completely correspond with the forms usually observed when the land granted was situated in the settled parts of the province, and that the governor-general had no power to grant by any other form.

Mr. Gallatin's eighth error. In remark No. 4, he considers peaceable possession as synonymous with personal permission of occupancy, revocable at will.

We have seen that the four translations of the grant heretofore made, differed, in some respects materially, one from another. The translation averred in the record, differs from the preceding four. Those four all agree in rendering the word 'possession' into the English word 'possession,' and three of them render 'paisible' into 'peaceable,' while the remaining one renders it into 'peaceful.' The main difference between those four translations and the translation averred in the record is, that the latter represents the words 'paysibles possessiont' by English words, which indicate ownership enjoyed free from adverse claim.

This new version was made for the following reasons: The French phrase, 'paisible possession,' is an idiomatic expression, and it would, as used in this petition, raise directly in the mind of a Frenchman the idea of ownership and quiet enjoyment free from adverse claim, without any reasoning whatever on the subject. It was attempted, in shaping this new translation, not only to raise in the mind of the reader the same ideas which were raised in the mind of the Baron de Carondelet, when he read the original, but to raise them in the same direct manner.

The most usual signification of the French word 'possession' is enjoyment of a thing in the character of its owner. In the same way 'possesseur' most usually signifies a person enjoying a thing as its owner. In the French language 'le possesseur' is the person who has la possession; just as in English 'possessor' is the person who has the possession.

On the part of the defendant in error, the points were thus stated by Mr. Wilson, which were sustained also by Mr. Smith.

The land in controversy is in what was called the Louisiana territory acquired by the treaty of 1803.

The United States extinguished the Indian title to it by the treaty of 1832, made by General Scott and Governor Reynolds. See Indian Treaties, 7 Stat. at Large, 374.

The sale by the United States, to the defendant, was under the act of Congress, 9 Stat. at Large, 37.

The plaintiff admits that defendant holds the land by patent from ...

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