John McLean

“ If he could sell and convey the lands dedicated to public use, surely he might, without any authority of law, grant permission to build on such lands.
But, as it appears from the evidence in the case, that permission was not only given to construct buildings on this common, but that a part of it was granted in fee, it is contended that this is evidence of the king's power, not only to regulate the use of this common, but to convey it in fee. ”

“ It is well known that the policy of Spain in regard to a disposition of her public domain, is entirely different to that which has been adopted by the United States. We dispose of our public lands by sale; but Spain has uniformly bestowed her domain in reward for meritorious services, or to encourage some enterprise deemed of public utility.
That a community, composed, as were the citizens of New Orleans, almost entirely of foreigners, and under the circumstances which existed, should have mistaken their rights, is not extraordinary. ”

“ Judge Martin, who dissented from the opinion of the superior court in the case above cited, says, 'of public places, the public may claim the use by exhibiting evidence of a dedication to its profit, by the sovereign or pater familias, without any letters patent, grant or deed.'
And 'of places which are alleged to be the exclusive property of the town or city, or of which the exclusive right to use is claimed, letters patent, a grant, or deed, must be produced.
The power of appropriating private property to public purposes is an incident of sovereignty. ”

“ It can exercise authority over no subjects, except those which have been delegated to it. Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power.
If the common in contest, under the Spanish crown, formed a part of the public domain or the crown lands, and the king had power to alien it, as other lands, there can be no doubt that it passed under the treaty to the United States, and they have a right to dispose of it, the same as other public lands. ”

“ In the first place, the fact that when we obtained possession of Louisiana, the city of New Orleans was composed of citizens who, in their language, habits of thinking and acting, were almost as dissimilar from other parts of the United States, as if they had inhabited a different continent, is of great importance ”

“ In one view, the title to property of the value of several millions of dollars, depends upon its decision; and in any aspect in which it may be considered, principles of the civil law, and the usages and customs of the governments of France and Spain, and also, it is insisted, important principles of the common law, as well as the effect of certain acts of our own government, are involved. ”

“ It is true, that New Orleans contained at this time a very limited population; but it is matter of history, that not many years after the foundation of the city was laid, the most splendid scheme of commercial enterprise, connected with banking operations, was projected in France, in reference to Louisiana. So excited did the public mind become on this subject, and so generally was the public attention directed to it, that there is little probability the dedication of this common could have escaped the notice of the king of France. ”

“ Though certain places may be dedicated to public purposes by the supreme power, and may be said to be withdrawn from commerce, still it is insisted where no grant has been made, and private rights have not become vested in the property, it is not withdrawn from the sovereign power. ”

“ If this were not the case, by the continual deposits of the Mississippi, the city of New Orleans would, in the course of a few years, be cut off from the river, and its prosperity impaired. If the city can claim the original dedication to the river, it has all the rights and privileges of a riparian proprietor. ”

“ It is very clear, that as the treaty cannot give this power to the federal government, we must look for it in the constitution; and that the same power must authorize a similar exercise of jurisdiction over every other quay in the United States. A statement of the case is a sufficient refutation of the argument.
Special provision is made in the constitution, for the cession of jurisdiction from the states over places where the federal government shall establish forts, or other military works. ”

“ Like the heirs of Penn, the Western Company was proprietor of a great extent of territory, and the dedications were made under circumstances somewhat similar; but the proof of dedication of the common or quay at New Orleans, is incomparably stronger than was found in the Pittsburgh case. ”

“ This court had occasion to consider this doctrine in two important and leading cases, which lately came before them, and which are reported in 6 Peters. The first one was the City of Cincinnati v. The Lessee of White. ”