Mitchel v. United States
34 U.S. 711

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U.S. Supreme Court

Mitchel v. United States, 34 U.S. 9 Pet. 711 711 (1835)

Mitchel v. United States

34 U.S. (9 Pet.) 711

Syllabus

A claim to lands in East Florida, the title to which was derived from grants by the Creek and Seminole Indians, ratified by the local authorities of Spain before the cession of Florida by Spain to the United States, confirmed.

It was objected to the title claimed in this case, which had been presented to the Superior Court of Middle Florida under the provisions of the acts of Congress for the settlement of land claims in Florida, that the grantees did not acquire, under the Indian grants, a legal title to the land. Held that the acts of Congress submit these claims to the adjudication of this Court as a court of equity, and those acts, as often and uniformly construed in its repeated decisions, confer the same jurisdiction over imperfect, inchoate, and inceptive titles as legal and perfect ones, and require the Court to decide by the same rules on all claims submitted to it, whether legal or equitable.

By the law of nations, the inhabitants, citizens, or subjects of a conquered or ceded country, territory, or province retain all the rights of property which have not been taken from them by the orders of the conqueror, and this is the rule by which we must test its efficacy according to the act of Congress, which we must consider as of binding authority.

A treaty of cession is a deed or grant by one sovereign to another, which transferred nothing to which he had no right of property and only such right as he owned and could convey to the grantee. By the treaty with Spain, the United States acquired no lands in Florida to which any person had lawfully obtained such a right by a perfect or inchoate title that this Court could consider it as property under the second article or which had, according to the stipulations of the eighth article of the treaty been granted by the lawful authorities of the King, which words "grants" or "concessions" were to be construed in their broadest sense, so as to comprehend all lawful acts which operated to transfer a right of property, perfect or imperfect.

The effect of the clauses of the confirmation of grants made was that they confirmed them presently, on the ratification of the treaty, to those in possession of the lands, which was declared to be that legal seizin and possession which follows title, is coextensive with the right, and continues till it is ousted by an actual adverse possession, as contradistinguished from residence and occupation.

Page 34 U. S. 712

The United States, by accepting the cession under the terms of the eighth article and the ratification by the King, with an exception of the three annulled grants to Allegan, Punon Rostro, and Vargas, can make no other exceptions of grants made by the lawful authorities of the King.

The meaning of the words "lawful authorities" in the eighth article or "competent authorities" in the ratification must be taken to be "by those persons who exercised the granting power by the authority of the Crown." The eighth article expressly recognizes the existence of these lawful authorities in the ceded territories, designating the governor or intendant, as the case might be, as invested with such authority, which is to be deemed competent till the contrary is made to appear.

By "the laws of Spain" is to be understood the will of the King expressed in his orders or by his authority, evidenced by the acts themselves or by such usage and customs in the provinces as may be presumed to have emanated from the King or to have been sanctioned by him as existing authorized local laws.

In addition to the established principles heretofore laid down by this Court as the legal effect of an usage or custom, there is one which is peculiarly appropriate to this case. The act of Congress giving jurisdiction to this Court to adjudicate on these causes contains this clause in reference to grants, &c.,

"which was protected and secured by the treaty, and which might have been perfected into a complete title under and in conformity to the laws, usages, and customs of the government under which the same originated."

This is an express recognition of any known and established usage or custom in the Spanish provinces in relation to the grants of land and the title thereto, which brings them within a well established rule of law that a custom or usage saved and preserved by a statute has the force of an express statute, and shall control all affirmative statutes in opposition, though it must yield to the authority of negative ones, which forbid an act authorized by a custom or usage thus saved and protected, and this is the rule by which its efficacy must be tested according to the act of Congress, which must be considered of binding authority.

In the case of United States v. Arredondo, 6 Pet. 691, the lands granted had been in the possession and occupation of the Allachua Indians, and the center of the tract was an Indian town of that name. But the land had been abandoned, and before any grant was made by the intendant, a report was made by the attorney and Surveyor General, on a reference to them, finding the fact of abandonment, on which it was decreed that the land had reverted to and become annexed to the royal domain.

By the common law, the King has no right of entry on land which is not common to his subjects; the King is put to his inquest of office, or information of intrusion, in all cases where a subject is put to his action; their right is the same, though the King has more convenient remedies in enforcing his. If the King has no original right of possession to lands, he cannot acquire it without office found so as to annex it to his domain.

The United States has acted on the same principle in the various laws which Congress has passed in relation to private claims to lands in the Floridas; it has not undertaken to decide for itself on the validity of such claims without the previous action of some tribunal, special or judicial. It has not authorized an entry to be made on the possession of any person in possession by color of a Spanish grant or title, not the

Page 34 U. S. 713

sale of any lands as part of the national domain with any intention to impair

private rights. The laws which give jurisdiction to the district courts of the territories to decide in the first instance, and to this on appeal, prescribe the mode by which lands which have been possessed or claimed to have been granted pursuant to the laws of Spain shall become a part of the national domain, which, as declared in the seventh section of the act of 1824, is a "final decision against any claimant pursuant to any of the provisions of the law."

One uniform rule seems to have prevailed in the British provinces in America by which Indian lands were held and sold, from their first settlement, as appears by their laws that friendly Indians were protected in the possession of the lands they occupied, and were considered as owning them by a perpetual right of possession in the tribe or nation inhabiting them, as their common property, from generation to generation, not as the right of the individuals located on particular spots. Subject to this right of possession, the ultimate fee was in the Crown and its grantees, which could be granted by the Crown or colonial legislatures while the lands remained in possession of the Indians, though possession could not be taken without their consent.

Individuals could not purchase Indian lands without permission or license from the Crown, colonial governors, or according to the rules prescribed by colonial laws, but such purchases were valid with such license or in conformity with the local laws, and by this union of the perpetual right of occupancy with the ultimate fee, which passed from the Crown by the license, the title of the purchaser became complete.

Indian possession or occupation was considered with reference to their habits and modes of life; their hunting grounds were as much in their actual possession as the cleared fields of the whites, and their rights to its exclusive enjoyment in their own way and for their own purposes were as much respected, until they abandoned them, made a cession to the government, or an authorized sale to individuals. In either case, their rights became extinct, the lands could be granted disencumbered of the right of occupancy, or enjoyed in full dominion by the purchasers from the Indians. Such was the tenure of Indian lands by the laws of Massachusetts, Connecticut, Rhode Island, New Hampshire, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, and Georgia.

Grants made by the Indians at public councils since the treaty at Fort Stanwicks have been made directly to the purchasers or to the state in which the land lies, in trust for them, or with directions to convey to them, of which there are many instances of large tracts so sold and held, especially in New York.

It was a universal rule that purchases made at Indian treaties in the presence and with the approbation of the officer under whose direction they were held by the authority of the Crown gave a valid title to the lands; it prevailed under the laws of the states after the Revolution, and yet continues in those where the right to the ultimate fee is owned by the states or their grantees. It has been adopted by the United States, and purchases made at treaties held by their authority have been always held good by the ratification of

the treaty, without any patent to the purchasers from the United States. This rule in the colonies was founded on a settled rule of the law of England, that by his prerogative, the King was the universal occupant of

Page 34 U. S. 714

all vacant lands in his dominions, and had the right to grant them at his pleasure or by his authorized officers.

When the United States acquired and took possession of the Floridas, the treaties which had been made with the Indian tribes before the acquisition of the territory by Spain and Great Britain remained in force over all the ceded territory as the laws which regulated the relations with all the Indians who were parties to them, and were binding on the United States by the obligation they had assumed by the Louisiana Treaty, as a supreme law of the land, which was inviolable by the power of Congress. They were also binding as the fundamental law of Indian rights, acknowledged by royal orders and municipal regulations of the province, as the laws and ordinances of Spain in the ceded provinces, which were declared to continue in force by the proclamation of the governor in taking possession of the provinces, and by the acts of Congress, which assured all the inhabitants of protection in their property. It would be an unwarranted construction of these treaties, laws, ordinances, and municipal regulations to decide that the Indians were not to be maintained in the enjoyment of all the rights which they could have enjoyed under either had the provinces remained under the dominion of Spain. It would be rather a perversion of their spirit, meaning, and terms, contrary to the injunction of the law under which the Court acts, which makes the stipulations of any treaty, the laws and ordinances of Spain, and these acts of Congress, so far as either applies to this case, the standard rules for its decision.

The treaties with Spain and England before the acquisition of Florida by the United States, which guaranteed to the Seminole Indians their lands according to the right of property with which they possessed them, were adopted by the United States, which thus became the protector of all the rights they had previously enjoyed or could of right enjoy under Great Britain or Spain, as individuals or nations, by any treaty to which the United States thus became party in 1803.

The Indian right to the lands as property was not merely of possession, that of alienation was concomitant; both were equally secured, protected, and guaranteed by Great Britain and Spain, subject only to ratification and confirmation by the license, charter, or deed from the governor representing the King. Such purchases enabled the Indians to pay their debts, compensate for their depredations on the traders resident among them to provide for their wants; while they were available to the purchasers as payment of the considerations which at their expense had been received by the Indians. It would have been a violation of the faith of the government to both to encourage traders to settle in the province, to put themselves and property in the power of the Indians, to suffer the latter to contract debts, and when willing to pay them by the only means in their power, a cession of their lands, withhold an assent to the purchase, which by their laws or municipal regulations was necessary to vest a title. Such a course was never adopted by Great Britain in any of her colonies, nor by Spain in Louisiana or Florida.

The laws made it necessary, when the Indians sold their lands, to have the deeds presented to the governor for confirmation. The sales by the Indians transferred the kind of right which they possessed; the ratification of the sale by the governor must be regarded as a relinquishment of the title of

Page 34 U. S. 715

the Crown to the purchaser, and no instance is known where permission to sell has been "refused, or the rejection of an Indian sale."

In the present case, the Indian sale has been confirmed with more than usual solemnity and publicity; it has been done at a public council and convention of the Indians conformably to treaties, to which the King was a party and which the United States adopted, and the grant was known to both parties to the treaty of cession. The United States was not deceived by the purchase, which it knew was subject to the claim of the petitioner or those from whom he purchased, and it made no stipulation which should put it to a severer test than any other, and it was made to a house which, in consideration of its great and continued services to the King and his predecessor, had deservedly given them high claims as well on his justice as his faith. But if there could be a doubt that the evidence in the record did not establish the fact of a royal license or assent to this purchase as a matter of specific and judicial belief, it would be presumed as a matter of law arising from the facts and circumstances of the case, which are admitted or unquestioned.

As heretofore decided by this Court, the law presumes the existence in the provinces of an officer authorized to make valid grants; a fortiori, to give license to purchase and to confirm; and the treaty designates the Governor of West Florida as the proper officer to make grants of Indian lands by confirmation as plainly as it does the Governor of East Florida to make original grants or the Intendant of West Florida to grant royal lands. A direct grant from the Crown of lands in a royal haven may be presumed on an uninterrupted possession of sixty years or a prescriptive possession of Crown lands for forty years.

The length of time which brings a given case within the legal presumption of a grant, charter, or license to validate a right long enjoyed is not definite, depending on its peculiar circumstances.

After the case had been fully heard in the Superior Court of Middle Florida, the judge of that court, in examining the evidence in the case with a view to its decision, considered that he had discovered in the date of the watermark in the paper on which one of the original Spanish documents had been written a circumstance which brought into doubt the genuineness of the instrument. No objection of this kind had been made during the argument of the cause, and after the supposed discovery, no opportunity was permitted

by the court of Florida to the claimants to explain or account for the same. After the appeal had been docketed in this Court, the appellants asked permission to send a commission to procure testimony which it was alleged would fully explain the circumstance, and offered to read ex parte depositions to the same purpose. By the Court:

"This is refused because in an appellate court, no new evidence can be taken or received without violating the best established rules of evidence. Under such circumstances, it would be dealing to the petitioner a measure of justice incompatible with every principle of equity to visit upon his title an objection which the claimant was not bound to anticipate in the court below, which he could not meet there, and which this Court was compelled to refuse him the means of removing by evidence. We will not say what course would have been taken if his title had depended on the date of the paper alluded to; as the case is, it is only one of numerous undisputed documents

Page 34 U. S. 716

tending to establish the grant, the validity of which is but little if it could be in any degree"

affected by the date of the permission.

The appellants, on 18 October, 1828, presented to the Superior Court of Middle Florida their petition under the authority of the sixth section of the Act of Congress passed on 23 May, 1828, entitled an act supplementary to the several acts providing for the settlement and confirmation of the private land claims in the Territory of Florida, and of the act of 1824, referred to in the said act, authorizing claimants in Missouri to institute proceedings to try the validity of their titles.

The appellants claimed title to a tract of land containing one million two hundred thousand acres in the Territory of Florida, the greater part of which was situated between the Rivers Appalachicola and the St. Mark's, comprehending all the intervening seacoast and the islands adjacent.

The title was asserted to be held under deeds from the Creek and Seminole Indians to Panton, Leslie & Company, to John Forbes & Company, and to John Forbes, and confirmed by the authorities of Spain.

These lands, the petitioners alleged, were granted by the Indian tribes, as an indemnity from the Spanish government and from those Indians for losses sustained by them in prosecuting a trade with the Indians under the special and exclusive license of Spain.

The Indian grants were dated on 25 May and 22 August, 1804, and 2 August, 1806, and were alleged to have been confirmed by Governor Folch, the governor of the province.

The facts of the case and all the documents on which the title of the petitioners was claimed to rest, with the evidence in the case, are fully stated in the opinion of the Court.

The answer of the district attorney stated that the commissioners under the act "for the settlement of private land claims, and for the confirmation thereof" were instructed to report, and not to decide upon large claims; that the claim of the petitioners was reported upon by the commissioners, and

Page 34 U. S. 717

their report laid before Congress -- but it was denied that the documents presented to the said commissioners and by them reported were by the said report "admitted to be genuine." The title of the appellant is invalid. Congress did not confirm or adopt the report of the commissioners upon this claim, but referred all claims not annulled by the treaty of cession, nor by the decree of the King of Spain ratifying the same, nor reported by the commissioners as antedated or forged, to the decision of the judiciary.

The cause was heard in the Superior Court of Middle Florida on the evidence adduced by the petitioners and the United States and on public documents, all of which were sent up with the record, and was finally disposed of by a decree of the judge of that court entered on 2 November, 1830, dismissing the petition.

The petitioners appealed to this Court. The appeal was entered to January term, 1831.

At former terms of this Court, on the motions of the counsel for the United States, the case was postponed to enable the government of the United States to procure papers from Madrid and from Havana which were considered important and necessary in the cause. These motions were always resisted by the counsel for the appellants.

At January term, 1834, the case was continued, under an order of the Court that it should not be argued before 2 February, 1835.

On 9 January, Mr. Butler, Attorney General of the United States, moved the Court to postpone the hearing of the case until later in the term than the day fixed for the same, alleging that the documents which had been expected from Havana had not arrived and that the government had dispatched a special messenger for them whose return was expected before 25 February, during the term. The Court refused to hear the motion until the case should be called, on or after 2 February. Afterwards, on 9 February, the motion was renewed on the part of the United States by the Attorney General and was overruled, the Court not thinking it necessary to hear the counsel for the appellants against it.

Page 34 U. S. 725

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