United States v. Percheman
32 U.S. 51 (1832)

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U.S. Supreme Court

United States v. Percheman, 32 U.S. 7 Pet. 51 51 (1832)

United States v. Percheman

32 U.S. (7 Pet.) 51

Syllabus

Juan Percheman claimed two thousand acres of land lying in the Territory of Florida by virtue of a grant from the Spanish governor made in 1815. His title consisted of a petition presented by himself to the Governor of East Florida, praying for a grant of two thousand acres at a designated place in pursuance of the royal order of 29 March, 1815, granting lands to the military who were in St. Augustine during the invasion of 1812 and 1813; a decree by the governor made 12 December, 1815, in conformity to the petition, in absolute property, under the authority of the royal order, a certified copy of which decree and of the petition was directed to be issued to him from the secretary's offices in order that it may be to him in all events an equivalent of a title in form; a petition to the governor dated 31 December, 1815, for an order of survey, and a certificate of a survey having been made on 20 August,

1819, in obedience to the same. This claim was presented, according to law, to the Register and Receiver of East Florida, while acting as a board of commissioners to ascertain claims and titles to lands in East Florida. The claim was rejected by the board, and the following entry made of the same:

"In the memorial of the claimant to this board, he speaks of a survey made by"

authority in 1829. If this had been produced, it would have furnished some

support for the certificate of Aguilar. As it is, we reject the claim.

Held that this was not a final action on the claim in "the sense those words are used in the Act of 26 May, 1830 entitled An act supplementary to,'"

&c.

Even in cases of conquest, it is very unusual for the conqueror to do more than to displace the sovereign and assume dominion over the country.

The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged if private property should be generally confiscated and private rights annulled on a change in the sovereignty of the country. The people change their allegiance, their relation to their ancient sovereign is dissolved, but their relations to each other and their rights of property remain undisturbed.

Had Florida changed its sovereign by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change. It would have retrained the same as under the ancient sovereign.

The language of the second article of the Treaty between the United States and Spain of 22 February, 1819, by which Florida was ceded to the United States, conforms to this general principle.

The eighth article of the treaty must be intended to stipulate expressly for

Page 32 U. S. 52

the security to private property which the laws and usages of nations would, without express stipulation, have conferred. No construction which would impair that security further than its positive words require would seem to be admissible. Without it, the titles of individuals would remain as valid under the new government as they were under the old. And those titles, so far at least as they were consummated, might be asserted in the courts of the United States independently of this article.

The treaty was drawn up in the Spanish as well as in the English languages. Both are original, and were unquestionably intended by the parties to be identical. The Spanish has been translated, and it is now understood that the article expressed in that language is that "the grants shall retrain ratified and confirmed to the persons in possession of them, to the same extent," &c., thus conforming exactly to the universally received law of nations.

If the English and Spanish part can, without violence, be made to agree, that construction which establishes this conformity ought to prevail.

No violence is done to the language of the treaty by a construction which conforms the English and Spanish to each other. Although the words "shall be ratified and confirmed" are properly words of contract, stipulating for some

future legislation, they are not necessarily so. They may import that "they shall be ratified and confirmed" by force of the instrument itself. When it is observed that in the counterpart of the same treaty, executed at the same time, by the same parties, they are used in this sense, the construction is proper, if not unavoidable.

In the case of Foster v. Elam, 2 Pet. 253, this Court considered those words importing a contract. The Spanish part of the treaty was not then brought into view, and it was then supposed there was no variance between them. It was not supposed that there was even a formal difference of expression in the same instrument, drawn up in the language of each party. Had this circumstance been known, it is believed it would have produced the construction which it now given to the article.

On 8 May, 1822, an act was passed "for ascertaining claims and titles to land within the Territory of Florida." Congress did not design to submit the validity of titles which were "valid under the Spanish government or by the law of nations" to the determination of the commissioners acting under this

law. It was necessary to ascertain these claims and to ascertain their location, not to decide finally upon them. The powers to be exercised by the commissioners ought to be limited to the object and purpose of the act.

In all the acts passed upon this subject previous to May, 1830, the decisions of the commissioners or of the register and receiver acting as commissioners have been confirmed. Whether these acts affirm those decisions by which claims are rejected, as well as those by which they are recommended for confirmation, admits of some doubt. Whether a rejection amounts to more than a refusal to recommend for confirmation may be a subject of serious inquiry. However this may be, it can admit of no doubt that the decision of the commissioners was conclusive in no

Page 32 U. S. 53

case until confirmed by an act of Congress. The language of these acts, and among others that of the act of 1828, would indicate that the mind of Congress was directed solely to the confirmation of claims, not to their annulment. The decision of this question is not necessary to this case.

The Act of 26 May, 1830, entitled "An act to provide for the final settlement of land claims in Florida," contains the action of Congress on the report of the commissioners of 14 January, 1830, in which is the rejection of the claim of the petitioner in this case. The first, second and third sections of this act confirm the claims recommended for confirmation by the commissioners. The fourth section enacts

"That all remaining claims, which have been presented according to law, and not finally acted upon, shall be adjudicated and finally settled upon the same conditions,"

&c. It is apparent that no claim was finally acted upon until it had been acted upon by Congress, and it is equally apparent that the action of Congress in the report containing this claim is confined to the confirmation of those titles which were recommended for confirmation. Congress has not passed upon those which were rejected. They were, of consequence, expressly submitted to the court.

From the testimony in the case, it does not appear that the Governor of Florida, under whose grant the land is claimed by the petitioner, exceeded his authority in making the grant.

Papers translated from a foreign language respecting the transactions of foreign officers with whose powers and authorities the court are not well acquainted, containing uncertain and incomplete references to things well understood by the parties but not understood by the court, should be carefully examined before it pronounces that an officer holding a high place of trust and confidence has exceeded his authority.

On general principles of law, a copy of a paper given by a public officer whose duty it is to keep the originals ought to be received in evidence.

On 17 September, 1830, Juan Percheman filed in the clerk's office of the Superior Court for the Eastern District of Florida a petition, setting forth his claim to a tract of land containing two thousand acres within the District of East Florida, situated at a place called the Ockliwaha, along the margin of the River St. John.

The petitioner stated that he derived his title to the said tract of land under a grant made to him on 12 December, 1815, by Governor Estrada, then Spanish Governor of East Florida, and whilst East Florida belonged to Spain. The documents exhibiting the alleged title annexed to the petition were the following:

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"His Excellency the Governor: Don Juan Percheman, ensign of the corps of dragoons of America, and stationed in this place, with due veneration and respect appears before your Excellency and says that in virtue of the bounty in lands which, pursuant to his royal order of 29 March of the present year, the King grants to the military which were of this place in the time of the invasion which took place in the years 1812 and 1813, and your petitioner considering himself as being comprehended in the said sovereign resolution, as it is proved by the annexed certificates of his lordship Brigadier Don Sebastian Kindelan, and by that which your lordship thought proper to provide herewith, which certificates express the merits and services rendered by your petitioner at the time of the siege, in consequence of which said bounties were granted to those who deserved them, and which said certificates your petitioner solicits from your goodness may be returned to him for any other purposes which may be useful to your petitioner; therefore he most respectfully supplicates your lordship to grant him two thousand acres of land in the place called Ockliwaha, situated on the margin of St. John's River, which favor he doubts not to receive from your good heart and paternal dispositions. St. Augustine of Florida, 8 December, 1815."

"JUAN PERCHEMAN"

"St. Augustine of Florida, 12 December, 1815. Whereas, this officer, the party interested, by the two certificates enclosed and which will be returned to him for the purposes which may be convenient to him, has proved the services which he rendered in the defense of this province, and in consideration also of what is provided in the royal order of 29 March last past, which he cites, I do grant him the two thousand acres of land which he solicits, in absolute property in the indicated place, to which effect let a certified copy of this petition and decree be issued to him from the secretary's office in order that it may be to him, in all events, an equivalent of a title in form."

"ESTRADA"

"PETITION. His Excellency the Governor:"

"Don Juan Percheman, sergeant of the squadron of dragoons of America, stationed in this place, with due veneration and respect, appears before your Excellency, and says that in virtue of the royal

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bounties in lands, granted by his Majesty, by his royal order of 29 March of the present year, to the military individuals who were in this place aforesaid, in the time of the invasion thereof, in the years 1812 and 1813, and your petitioner considering himself as included in the said royal resolution, as he proves it by the annexed certificates, exhibited with due solemnity, one of them from the Brigadier Don Sebastian Kindelan, and the other with which your Excellency thought proper to provide him, which certificates express the merits and services which he acquired and rendered in the time and epochs of the siege, in consequence of which the meritorious were thus rewarded, and which certificates your Excellency will be pleased to return to your petitioner, for other purposes which may be useful to him, wherefore, your petitioner most respectfully supplicates your Excellency to be pleased to grant him two thousand acres of land, in the place called Ockliwaha, situated on the margins of the River St. John, which favor he doubts not to receive from the benevolent and charitable dispositions of your Excellency. St. Augustine of Florida, on 8 December, 1815."

"JUAN PERCHEMAN"

"DECREE. St. Augustine of Florida, on 12 December, 1815. Whereas, this officer interested proves by the two certificates annexed, and which will be returned to him for such purposes as may suit him, the services which he has rendered in the defense of this province, and also in consideration of the provisions of the royal order, under date 29 March last, which is referred to, I do grant to him in absolute property the two thousand acres of land in the place which he indicates, for the attainment of which, let a certified copy of this petition and decree be issued to him, which documents will at all events serve him as a title in form."

"ESTRADA"

"I, Don Tomas de Aguilar, under-lieutenant of the army, and secretary for his Majesty of the government of this place, and of the province thereof, do certify that the preceding copy is faithfully drawn from the original, which exists in the secretary's office under my charge, and in obedience to what is

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ordered, I give the present, in St. Augustine of Florida, on 12 December, 1815."

"TOMAS DE AGUILAR"

"PETITION FOR SURVEY. His Excellency the governor:"

"Don Juan Percheman, ensign of the corps or dragoons and commandant of the detachment of the same stationed in this place, with due respect represents to your Excellency that this government having granted your petitioner two thousand acres of land in the place called Ockliwaha, on the margin of the River St. John, he may be permitted to have the same surveyed by a competent surveyor as soon and at any time your petitioner will find it convenient, which favor your petitioner hopes to receive from the high consideration of your Excellency. St. Augustine of Florida, on 31 December, 1815."

"JUAN PERCHEMAN"

"St. Augustine, 31 December 1815. The preceding petition is granted."

"ESTRADA"

I, Don Robert McHardy, an inhabitant of this province, and appointed surveyor, by decree of this government, rendered on the 31st December 1815 in behalf of the interested party, do certify, that I have surveyed for Don Juan Percheman, lieutenant of the Havana dragoons, a tract of land containing two thousand acres, situated on the south side of Ockliwaha, and is conformable in all its circumstances to the following plat. In testimony whereof, I sign the present, in St. Augustine of Florida, on the 20th of August 1819.

"R'T McHARDY"

The petitioner proceeds to state that his claim to said tract of land so claimed by him was submitted to the examination of the board of commissioners appointed under and in virtue of an act of the Congress of the United States of America entitled "An act for ascertaining claims and titles to lands in the Territory of Florida, and to provide for the survey and disposal of the public lands in Florida," passed 3 March, 1823. And that the land so claimed by him, and situated as aforesaid within the Territory of Florida and within the jurisdiction

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of this Honorable Court, as aforesaid, was embraced by the Treaty between Spain and the United States of 22 February, 1819; that his claim to said land had not been finally settled under the provisions of the Act of the Congress of the United States entitled "An act supplementary to the several acts providing for the settlement and confirmation of private land claims in Florida," passed 23 May, 1828, or of any of the acts to which the said last-recited act is supplementary, and that the claim of the petitioner to the said land had not been reported by the said commissioners appointed under any of the said acts of Congress or any other, or by the register and receiver acting as such under the several acts of the Congress of the United States in such case made and provided, as antedated or forged, and that the said claim had not been annulled by the aforesaid treaty between Spain and the United States, nor by the decree ratifying the same. Wherefore he prayed that the validity of his claim to said land might be inquired into and decided upon by the court and that, in pursuance of an act of Congress for that purpose, in that case made and provided, the United States be made a party defendant to this petition, and that process, &c.

On the 2d of October, the attorney of the United States for the District of East Florida filed an answer to the petition of Juan Percheman in which it is stated that on 28 November, 1823, he, the said Juan Percheman, sold, transferred and conveyed to one Francis P. Sanchez all his right, title, and interest in the tract of land claimed by him, which, the answer asserted, appeared by a copy of the conveyance annexed to the action, and that he had not, at the time of the filing of his petition, any right, title, or interest in the land. The answer admitted that the claim of the said Francis P. Sanchez to the said tract of land was duly presented to the register and receiver of the district while they were acting as a board of commissioners to ascertain titles to land in East Florida, and averred that the said claim was finally acted upon and rejected by the said register and receiver, while lawfully acting as aforesaid, as appeared by a copy of their report thereon annexed to the answer. The United States further said that the tract of land claimed

Page 32 U. S. 58

by the petitioner contains a less quantity than 3,500 acres, to-wit, but 2,000 acres, by the showing of the petitioner himself, and that the court had no jurisdiction in the case, nor could any court exercise jurisdiction over the claim against the United States. The answer submitted that if the Governor Estrada did make the grant or concession set forth by the petitioner at the time

"and in the manner alleged in the said petition of bill of complaint, he made it contrary to the laws, ordinances, and royal regulations of the government of Spain which were then in force in East Florida on the subject of granting lands, and without any power or authority to do so, and that the said grant was therefore null and void, and that the right and title to said tract of land consequently vested in the said United States, as will more fully appear by reference to the laws, ordinances, and royal regulations aforesaid."

The proceedings of the register and receiver on the claim of Francis P. Sanchez, referred to in the answer, were as follows:

"This is a certificate of Thomas de Aguilar that in December, 1815, Estrada granted Don Juan Percheman, cornet of squadron of dragoons, for services, two thousand acres of land at a place called Ockliwaha, on the St. John's River. In 1819, Percheman sold to Sanchez. In the memorial of the claimant to this board, he speaks of a survey made by authority in 1819. If this had been produced, it would have furnished some support to the certificate of Aguilar. As it is, we reject the claim."

The petitioner, by an amended petition, filed on t14 December, 1830, stated, that the Register and Receiver of the United States for East Florida, in their final report on the land claims, transmitted on 12 December, 1828, to the Secretary of the Treasury, reported the claim of the petitioner as rejected on the ground that the claim depended on a certificate only of Don Thomas Aguilar, notary of the Spanish government in East Florida, and he averred that his claim depended on an original grant on file in the Office of the Public Archives of East Florida, a certified copy of which was filed with the petition in the court, dated 8 December, 1815.

The amended petition also stated that the sale made by him

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of the tract of land described in the original petition was a conditional sale, and no more. It also stated that the register and receiver further reported that the survey of the tract of land, made by the authority of the Spanish government, was not produced to them, but the petitioner averred the contrary, for that the survey was filed with the claim, and was before them when they examined the same; for the truth of which averment, a certificate from the keeper of the office of archives was filed with the amended petition.

On the hearing of the case before the Supreme Court for the District of East Florida, the claimant, by his counsel, offered in evidence a copy from the Office of the Keeper of Public Archives of the original grant on which this claim was founded, to the receiving of which in evidence the said attorney for the United States objected, alleging that the original grant itself should be produced and its execution proved before it could be admitted in evidence, and that the original only could be received in evidence, which objection, after argument from the counsel, was overruled by the court, and the copy from the Office of the Keeper of the Public Archives, certified according to law, was ordered to be received in evidence. And the court further ordered that though, by the express statute of this territory, copies are to be received in evidence, yet, in cases where either the claimant or the United States shall suggest that the original in the Office of the Keeper of the Public Archives is deemed necessary to be produced in court, on motion therefor, a subpoena will be issued by order of the court to the said keeper to appear and produce the said original in court for due examination there.

The court proceeded to a decree in the case and adjudged that the claim of the petitioner as presented was within its jurisdiction --

"that the grant is valid, that it ought to be, and by virtue of the statute of 26 May, 1830, and of the late treaty between the United States and Spain, it is confirmed."

The United States appealed to this Court.

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