LESSEE OF POLLARD'S HEIRS V. KIBBE, 39 U. S. 353 (1840) -- US Supreme Court Cases from Justia & Oyez

Action of ejectment in the state court of Alabama for a lot of ground in the City of Mobile. The plaintiff claimed the title to the lot under an act of Congress, and the decision of the state court was against the right and title so set up and claimed. A writ of error was prosecuted to the Supreme Court of Alabama. It was held that this case was embraced by the twenty-fifth section of the Judiciary Act of 1789, which gives this Court jurisdiction to revise the judgment of the state court in such cases.

The act of Congress under which title was claimed being a private act and for the benefit of the City of Mobile and certain individuals, it is fair to presume it was passed with reference to the particular claims of individuals, and the situation of the land embraced in the law at the time it was passed.

A lot of ground was granted by the Spanish government of Florida in 1802 to Forbes & Company in the City of Mobile, which was afterwards confirmed by the commissioners of the United States. The lot granted was eighty feet in front and three hundred and four feet in depth, bounded an the east by Water Street. This, while the Spanish government had possession of the territory, was known as "a water lot." In front of the lot was a lot which, at the time of the grant of the lot to Forbes & Company, was covered by the water of the Bay and River of Mobile, the high tide flowing over it, and it was separated from Forbes & Company's lot by Water Street. It was afterwards in part reclaimed by Lewis, who had no title to it, and who was afterwards driven off by one of the firm of Forbes & Company. A blacksmith's shop was then put on the lot by him, and Lewis again, by proceedings at law, obtained possession of the blacksmith's shop, it not being his improvement. The improvement was first made in 1823. The Spanish governor, in 1809, after the Louisiana Treaty of 1803 and before the territory west of the Perdido was out of the possession of Spain, granted the lot in front of the lot owned by Forbes & Company to William Pollard, but the commissioners of the United States, appointed after the territory was in the full possession of the United States, refused to confirm the same "because of the want of improvement and occupation." In 1824, Congress passed an act the second section of which gives to those who have improved them the lots in Mobile known under the Spanish government as "water lots" except when the lot so improved had been alienated and except lots of which the Spanish government had made " new grants" or orders of survey during the time the Spanish government had "power" to

grant the same, in which case the lot is to belong to the alienee or the grantee. In 1836, Congress passed an act for the relief of William Pollard's heirs by which the lot granted by the Spanish government of 1809 was given to the heirs, saving the rights of third persons, and a patent for this lot was issued to the heirs of William Pollard by the United States on 2 July, 1836. Held that the lot lying east of the lot granted in 1802 by the Spanish government to Forbes & Company did not pass by that grant to Forbes & Company, that the Act of Congress of 1824, did not vest the title in the lot east of the lot granted in 1802 in Forbes & Company, and that the heirs of Pollard, under the second section of the act of 1824, which excepted from the grant to the City of Mobile, &c., lots held under "new grants" from the Spanish government, and under the Act of Congress of 1836 were entitled to the lot granted in 1809 by the Spanish governor to William Pollard.

The term "new grants," in its ordinary acceptation, when applied to the same subject or object, is the opposite of "old." But such cannot he its meaning in the Act of Congress of 1824. The term was doubtless used in relation to the existing condition of the territory in which such grants were made. The territory had been ceded to the United States by the Louisiana Treaty, but, in consequence of a dispute with Spain about the boundary line, had remained in the possession of Spain. During this time, Spain continued to issue evidences of titles to lands within the territory in dispute. The term

Page 39 U. S. 354

"new" was very appropriately used as applicable to grants and orders of survey of this description, as contradistinguished from those issued before the cession.

The time when the Spanish government had the "power" to grant lands in the territory, by every reasonable intendment of the Act of Congress of 1824 must have been so designated with reference to the existing state of the territory as between the United States and Spain, the right to the territory being in the United States and the possession in Spain. The language "during the time at which Spain had the power to grant the same" was, under such circumstances, very appropriately applied to the case. It could with no propriety have been applied to the case if Spain had full dominion over the territory by the union of the right and the possession, and in this view it is no forced interpretation of the word "power" to consider it here used as importing an imperfect right, and distinguished from complete lawful authority.

The Act of Congress of 25 March, 1812, appointing commissioners to ascertain the titles and claims to lands on the east side of the Mississippi and west side of the Perdido and falling within the cession of France, embraced all claims of this description. It extended to all claims by virtue of any grant, order of survey, or other evidence of claim whatsoever derived from the French, British, or Spanish governments, and the reports of the commissioners show that evidence of claims of various descriptions, issued by Spanish authority, down to 1810, come under their examination. And the legislation of Congress shows many laws passed confirming incomplete titles, originating after the date of the treaty between France and Spain at St. Ildefonso. Such claims are certainly not beyond the reach of Congress to confirm, although it may require a special act of Congress for that purpose. Such is the Act of Congress of 2 July, 1836, which confirms the title of William Pollard's heirs to the lot which is the subject of this suit. The judgment of the Supreme Court of the United States in a case brought by writ of error to a court of a state must be confined to the error alleged in the decision of the state court upon the construction of the act of Congress before the state court.

In the Circuit Court for the County of Mobile, State of Alabama, an action of ejectment for a lot of ground situated in the City of Mobile, was instituted by the plaintiffs in error and was afterwards removed, by change of venue, to the Circuit Court for the County of Baldwin. It was tried before a jury in that court, and on the trial the plaintiffs filed a bill of exceptions to the charge of the court. A verdict and judgment were given for the defendant. From this judgment of the circuit court the plaintiffs prosecuted a writ of error to the Supreme Court of the State of Alabama, and the judgment of the circuit court in favor of the defendant was affirmed by the supreme court.

The plaintiffs prosecuted this writ of error to the Supreme Court of the United States under the twenty-fifth section of the Judiciary Act of 1789.

The following is the bill of exceptions filed by the plaintiffs on the trial of the cause in the Circuit Court of the County of Baldwin.

"On the trial of this cause at the above term, the plaintiffs, to maintain the issue on their part, gave in evidence an instrument signed by Cayetano Perez, written in the Spanish language, a translation of which is hereto annexed as part of this bill of exceptions, but which instrument was shown to have been reported against and rejected by the commissioners appointed by the United States government to investigate and report on such matters because of the want of improvement and occupancy. "

Page 39 U. S. 355

"THE SPANISH GRANT, TRANSLATED."

"Mr. Commandant: "

" William Pollard, an inhabitant of the district, before you with all respect represents that he has a mill established upon his plantation, and that he often comes to this place with planks and property from it, and that he wishes to have a place propitious or suitable for the landing and safety thereof, and that, having found a vacant piece at the riverside between the channel which is called 'John Forbes & Company's' and the wharf at this place, he petitions you to grant said lot on the riverbank to give more facility to his trading, a favor he hopes to obtain of you."

" Mobile, 11 December, 1809 WILLIAM POLLARD"

"Mobile, 12 December, 1809"

" I grant the petitioner the lot or piece of ground he prays for, on the river bank, provided it be vacant."

"CAYETANO PEREZ"

"They further gave in evidence an act of Congress passed 26 May, 1824, entitled an act granting certain lots of ground to the corporation of the City of Mobile and to certain individuals of said city. They further gave in evidence an Act of Congress passed July 2, 1836, entitled an act for the relief of William Pollard's heirs. They then gave in evidence a patent, dated 14 March, 1837, issued in pursuance of said act of Congress of 2 July, 1836, which patent embraced the premises in question. The plaintiffs further proved that in the year 1813 or 1814, some wreck and driftwood was removed from the place where the premises in question now are by the hands of William Pollard, the grantee. The defendant gave in evidence a Spanish grant dated 9 June, 1802, to John Forbes & Company for a lot of ground, for eighty feet front on Royal Street, with a depth of three hundred and four feet to the east and bounded on the south by Government Street, which grant was recognized as a perfect title, and so confirmed by act of Congress. Attached to the original grant was a certificate signed by W. Barton, Register, Wm. Barnet, Receiver, P.M.; Attest, John Elliott, Clerk, a copy of which is the following: "

"PROCEEDINGS OF THE COMMISSIONERS"

"Land Office, Jackson Courthouse"

"Commissioners Report, No. 2; Certificate, No. 3"

" In pursuance of the Act of Congress passed on 3 March, 1819, entitled 'an act for adjusting the claims to land, and establishing land offices in the district east of the Island of Orleans,' we certify that the claim No. 3, in the report of the commissioners, numbered 2 (claimed by John Forbes & Company, original claimant, Panton Leslie and Company) is recognized by the said act as valid against any claim on the part of the United States or right derived

Page 39 U. S. 356

from the United States, the said claim being for eighty feet in front and three hundred and four in depth, area 24,320 feet, situate in the Town of Mobile and claimed by virtue of Spanish grant executed by J. V. Morales and dated 9 June, 1802."

" Given under our hands this 8 January, 1820."

"W. BARTON, Register"

WM. BARNETT, Receiver, P.M.

" Attest, JOHN ELLIOTT, Clerk"

"A map, or diagram, indicating the property claimed, as well as that covered by the above grant, with other lots, streets, &c., was submitted to the jury, and is to make a part of the bill of exceptions, by agreement between the counsel of the parties."

"According to that map and the proof, the lot sued for is east of Water Street, and also immediately in front of the lot conveyed by the above mentioned grant to John Forbes & Company, and only separated from it by Water Street. The proof showed that previous to 1819, then and until filled up, as after stated, the lot claimed by plaintiffs, was at ordinary high tide, covered with water, and mainly so at all stages of the water; that the ordinary high water flowed from the east to about the middle of what is now Water Street, as indicated on the map referred to, between the lot claimed by plaintiffs, and that covered by the grant to John Forbes & Company. It was proved that John Forbes & Company had been in possession of the lot indicated by their deed since the year 1802, and that said lot was known under the Spanish government as a water lot, no lots at that time existing between it and the water."

"It was proved that in the year 1823, no one being then in possession, and the same being under water, Curtis Lewis, without any title or claim under title, took possession of and filled up east of Water Street and from it eighty feet east, and thirty-six or forty feet wide, filling up north of Government Street, and at the corner of the same and Water Street; that Lewis remained in possession about nine months, when he was ousted in the night by James Innerarity, one of the firm of John Forbes & Company, who caused to be erected a smith shop and from whom Lewis sometime after regained possession by legal process and retained it till he conveyed the same. Proved that when said Lewis took possession, Water Street at that place could be passed by carts, and was common. The defendant connected himself, through conveyances for the premises in controversy, with the said grant to John Forbes & Company; also with the said Curtis Lewis, also, with the Mayor and Aldermen of the City of Mobile, from each of which sources his title, if any, was derived by deed."

"It was admitted by the parties to the suit that the premises sued for were between Church Street and North Boundary Street; this was all the evidence introduced on the trial."

"On this evidence, the court charged the jury that if the lot conveyed as above to John Forbes & Company by the deed aforesaid

Page 39 U. S. 357

was known as a water lot under the Spanish government, and if the lot claimed by the plaintiffs had been improved at and previous to 26 May, 1824, and was east of Water Street and immediately in front of the lot so conveyed to John Forbes & Company, then the lot claimed passed by the Act of Congress of 26 May, 1824, to those at that time owning and occupying the lot so as above conveyed to John Forbes & Company."

"The court further charged the jury it was immaterial who made the improvements on the lot on the east side of Water Street, being the one in dispute; that by the said acts of Congress, the proprietor of the lot on the west side of Water Street, known as above, was entitled to the lot on the east side of it. To which charges of the court the plaintiffs by their counsel excepted, and this was signed and sealed as a bill of exceptions. "

Page 39 U. S. 360

MR. JUSTICE THOMPSON delivered the opinion of the Court.

The writ of error in this case brings up the record of the final judgment of the Supreme Court of the State of Alabama. This case is brought here under the 25th section of the Judiciary Act of 1789, that court being the highest court of law in that state in which a decision could be had. It was an action of ejectment brought to recover possession of a lot of land in the City of Mobile. Upon the trial of the cause, the plaintiff claimed title to the premises in question under an act of Congress, and the decision in the state court was against the right and title so set up and claimed. It is therefore one of the cases embraced in this section of the Judiciary Act, which gives to this Court jurisdiction to revise the judgment of the state court.

The act under which title was claimed was passed on 26 May, 1824, Land Laws 885, granting certain lots of ground to the corporation of the City of Mobile, and to certain individuals of that city. Although the judgment of this Court must be confined to the error alleged in the decision of the state court, upon the construction

Page 39 U. S. 361

of the act of Congress under which title was claimed, it becomes necessary to the right understanding of the act which was drawn in question to look at the state of facts appearing on the record. It being a private act for the benefit of the City of Mobile and certain individuals, it is fair to presume it was passed with reference to the particular claims of such individuals and the situation of the land embraced within the law at the time it was passed.

These facts, as they appear on the record, are briefly as follow. On the trial, the plaintiff gave in evidence an instrument signed by Cayetano Perez, dated at Mobile, 12 December, 1809, purporting to be a petition of William Pollard for a certain lot of ground, which is described as vacant, at the river side between the canal, which is called John Forbes & Company's, and the wharf of this place, corresponding in description with the location of the lot in question, and a grant accompanying the petition, in these words: "I grant the petitioner the lot or piece of ground he prays for on the river bank, provided it be vacant," which grant was rejected by the commissioners appointed by the government of the United States to investigate and report upon such claims because of the want of improvement and occupation of the lot. The defendant gave in evidence a Spanish grant dated 9 June in the year 1802 to John Forbes & Company for a lot of ground eighty feet front on Royal Street, with a depth of three hundred and four feet to the east and bounded on the south by Government Street, which grant was recognized by the commissioners as a perfect title, and so confirmed by Congress. A map or diagram is referred to in the record, by which it appears that the lot sued for is east of Water Street, and immediately in front of the lot conveyed by the above mentioned grant to John Forbes & Company, and only separated from it by Water Street. It appeared in evidence that previous to the year 1819, and until filled up by Curtis Lewis, the lot in question was, at ordinary high tide, covered with water, and mainly so at all stages of the tide. That the ordinary high water flowed from the east to about the middle of what is now Water Street. It was proved that John Forbes & Company had been in possession of the lot granted to them since the year 1802, and that said lot was known under the Spanish government as a water lot, no lots at that time existing between it and the water.

In the year 1823, no one being in possession of the lot in question and the same being under water, Curtis Lewis, without title or claim under title, took possession of and filled up east of Water Street, about thirty-six or forty feet wide and eighty feet deep from Water Street, the filling up being north of Government Street at the corner of that and Water Street. Lewis remained in possession about nine months, when he was ousted in the night time by James Innerarity, one of the firm of John Forbes and company, who caused to be erected thereon a smith's shop. Lewis sometime after regained the possession by legal process, and retained it until he conveyed away the same. When Lewis took possession, Water

Page 39 U. S. 362

Street at that place could be passed by carts, and was common. The defendant connected himself through conveyances for the premises in question, with the grant to John Forbes & Company, and also with Curtis Lewis and the Mayor and aldermen of the City of Mobile.

Such being the situation of the lot in question and of the several claims to the same, the Act of the 26 May, 1824, was passed. The first section of this act can have no bearing upon the claim set up to the lot in question. It only vests in the City of Mobile all the right and claim of the United States to all the lots not sold or confirmed to individuals either by this or any former act and to which no equitable title exists in favor of any individual under this or any other act. If, therefore, the second section applies to the lot in question at all, it is excepted out of the first section. That the second section does apply to this lot has not been and cannot be doubted. That section is as follows:

"That all the right and claim of the United States to so many of the lots of ground east of Water Street and between Church Street and North Boundary Street, now known as water lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water lots in the said City of Mobile whereon improvements have been made be, and the same are hereby, vested in the several proprietors and occupants of each of the lots heretofore fronting on the River Mobile, except in cases where such proprietor or occupant has alienated his right to any such lot, now designated as a water lot, or the Spanish government has made a new grant or order of survey for the same, during the time at which they had the power to grant the same, in which case, the right and claim of the United States shall be and is hereby vested in the person to whom such alienation, grant, or order of survey was made or in his legal representatives. Provided that nothing in this act contained shall be construed to affect the claim or claims, if any such there be, of any individual or individuals, or of any body politic or corporate."

There are two facts to be collected from this description of the lots embraced in this section of the act which must be kept in view in deciding this question, viz., that the lots on the west side of Water Street were known under the Spanish government as water lots, and that the lots on the east side of Water Street are now known as water lots, and may properly be distinguished under the denomination of old water lots and new water lots.

The only question for this Court to decide is whether the state court misconstrued this act by deciding against the right and title set up under it by Pollard's heirs. The record states that the court charged the jury that if the lot conveyed as above to John Forbes & Company by the deed aforesaid was known as a water lot under the Spanish government, and if the lot claimed by the plaintiffs had been improved at and previous to 26 May, 1824 (the date of the law) and was east of Water Street and immediately in front of the lot so conveyed to John Forbes & Company,

Page 39 U. S. 363

then the lot claimed passed by the Act of Congress of 26 May, 1824, to those at that time owning and occupying the lot so as above conveyed to John Forbes & Company.

The facts hypothetically put by the court to the jury had been fully proved in the affirmative, and indeed were not at all denied -- to-wit that the lot conveyed to John Forbes & Company was known under the Spanish government as a water lot and that the lot claimed by the plaintiffs had been improved previous to 26 May, 1824, and was in front of the lot conveyed to John Forbes & Company.

The construction, therefore, of the court was substantially that the act conveyed the lot in question to the owners and occupants of the lot conveyed to John Forbes & Company. That such was the construction of the act given by the court is conclusively shown by the subsequent part of the charge: that it was immaterial who made the improvements on the lot in dispute on the east side of Water Street. That by the said act of Congress, the proprietor of the lot on the west side of Water Street was entitled to the lot on the east side of it.

If this construction of the act was erroneous and against the right claimed by the plaintiffs, the judgment must be reversed. The act is undoubtedly very obscurely worded, and its construction, it must be admitted, is doubtful.

The principal difficulty arises upon the true understanding and reference of the words, "whereon improvements have been made," whether they refer to improvements on the lot on the west side of Water Street or on the lot in question on the east side of Water Street. The grammatical construction would undoubtedly refer the improvements to the lot on the west side of the Street, and would be carrying into effect what is believed to be the general course of policy in most of the United States of giving a preference to the owner of land on the shore of navigable streams of water to the right and privilege of the land under the water between high and low water mark. And on the other hand, it would seem unjust, where actual improvements had been made on the land below high water mark, to disregard and take away such improvements and give them to the owner of the lot on the west side of the street.

The evidence as to the extent and value of the improvements on the lot in question is very loose, and affords but little information upon that point. They could probably have been but of little value. They were made by Curtis Lewis, he not having any title or even claim of title. And it is not reasonable to suppose that under such circumstances and from the short time he was in possession before the passage of this act, that he would have made very valuable improvements. And if the intention of Congress had been to give the lots on the east side of Water Street to those who had improved them, it would have required but a very plain and simple declaration to that effect, and might have been just and equitable if such improvements were valuable. But it is difficult to conceive how

Page 39 U. S. 364

the phraseology in the act could have been adopted to indicate such intention.

It is not, however, necessary to decide upon the construction of this act as between the conflicting claims of the owner of the lot on the west side of Water Street and those who had made improvements on the lot on the east side of that Street. For there is excepted out of the act all cases where the Spanish government has made "a new grant" or order of survey for the same during the time at which they had "the power" to grant the same, in which cases the right and claim of the United States are vested in the person to whom such grant or order of survey was made or his legal representatives. And if the plaintiffs bring themselves within this exception, the right is secured to them. And this presents the question as to the construction to be given to this exception.

Two points of inquiry seem to be presented: one relates to the description of the grant or order of survey therein mentioned, and the other as to the time when made. The exception describes these grants or orders of survey as "new grants" or orders of survey. The term "new," in its ordinary acceptation, when applied to the same subject or object, is the opposite of "old." But such cannot be its meaning as here used, for there is no pretense that two grants or orders of survey had at any time been issued for the same lot. Some other meaning must therefore be given to it. And it doubtless was used in relation to the existing condition of that part of the territory, when grants or orders of survey like the one in question were made. The territory had been ceded to the United States by the Louisiana Treaty, but in consequence of some dispute with Spain respecting the boundary line, this part of the territory remained in the possession of Spain. And it is a fact established by the public documents and laws of Congress and cases which have come before this Court that during the period between the cession by France and the acquiring possession by the United States, Spain continued to issue evidences of title of various descriptions -- some complete grants and others which were only inchoate rights or concessions. And the term "new" was very appropriately used as applicable to grants and orders of survey of this description, as contradistinguished from those issued before the cession. And this construction is rendered certain when the description of the grants is connected with the subsequent part of the sentence as to the time when made, to-wit during the time at which the Spanish government had "the power" to grant the same. This time, according to every reasonable intendment, must have been so designated with reference to the existing state of the territory as between the United States and Spain, the right to the territory being in the United States and the possession in Spain. The language "during the time at which Spain had the power to grant the same" was, under such circumstances, very appropriately applied to the case. It could with no propriety have been applied to the case if Spain had full dominion over the territory by the union of right and possession,

Page 39 U. S. 365

and in this view it is no forced interpretation of the word "power" to consider it here used as importing an imperfect right, and distinguishable from complete lawful authority. And indeed no other sensible construction can be given to the language here used, and the course of the government of the United States with respect to the claims originating during this period would seem necessarily to call for this construction. The act of Congress of 25 April, 1812, appointing commissioners to ascertain the titles and claims to lands on the east side of the River Mississippi and west of the River Perdido and falling within the cession by France, embraced all claims of this description; it extended to all claims by virtue of any grant, order of survey, or other evidence of claim whatsoever derived from the French, British, or Spanish governments. And the reports of the commissioners show that evidence of claims of various descriptions, issued by Spanish authority down to the year 1810, came under the examination of the commissioners, and the legislation of Congress shows many laws passed confirming incomplete titles, originating after the date of the treaty between France and Spain at St. Ildefonso.

Such claims are certainly not beyond the reach of Congress to confirm, although it may require a special act of Congress for that purpose, and the present claim, being founded upon such act, distinguishes it from the doctrine of this Court in the cases of Foster and Elam v. Neilson, 2 Pet. 253, and Garcia v. Lee, 12 Pet. 511. And such claims have been recognized by this Court as existing claims, and not treated as being absolutely void. In the case of Delacroix v. Chamberlain, 12 Wheat. 599, an order of survey issued during this period came under the consideration of the Court. It bore date in the year 1806. The Court said this order of survey was not sufficient to support an action of ejectment, not having been recorded or passed upon by the board of commissioners so as to vest a legal title. But the Court observed that this order of survey bears date at a time when the Spanish authorities were in the actual possession of Mobile, where the land lies, and it was claimed as a part of the Floridas, then belonging to the Spanish Crown, and the United States claimed it as a part of Louisiana. That the United States, having since purchased the Floridas without having previously settled the controverted boundary, rendered it unnecessary to examine these conflicting claims. And the Court added if the United States and Spain had settled this dispute by treaty before they extinguished the claim of Spain to the Floridas, the boundary fixed by such treaty would have bound all parties. But as that was not done, the United States has never, so far as we can discover, distinguished between the concessions of land made by the Spanish authorities within the disputed territory, while Spain was in the actual possession of it, from concessions of a similar character made by Spain within the acknowledged limits. We will not, therefore, raise any question upon the ground of want of authority in the intendant to make such concession. Nothing more

Page 39 U. S. 366

is to be understood from this case than that the Court did not consider the circumstance that the concession being made whilst Spain was in the actual possession of the territory had prevented Congress from acting on the subject of such concessions. And when Congress, in the Act of 26 May, 1824, excepts certain grants or orders of survey made by Spain during the time at which they had the power to grant the same, the conclusion is irresistible that it included grants like the one to William Pollard now in question. This grant bears date on the 9 December in the year 1809, and was rejected by the commissioners for want of improvement and occupation, and not because it was absolutely void. But suppose it had been void under the then existing laws in relation to these lands, it could not prevent Congress from afterwards confirming this grant. The Act of 26 March, 1804, 2 Story 939, sec. 14, declaring certain grants void could not affect the one to Pollard, which was made in the year 1809, after the passage of that law.

But if the construction of the Act of 26 May, 1824, is doubtful, as it is admitted to be, the Act of 2 July, 1836, is entitled to great weight in aiding to remove that doubt. It is an act specially for the relief of William Pollard's heirs. It declares that there shall be and hereby is confirmed unto the heirs of William Pollard, deceased, a certain lot of ground situated in the City of Mobile and bounded as follows, to-wit: on the north by what was formerly known as John Forbes & Company's canal, on the west by Water Street, on the south by the King's Wharf, and on the east by the channel of the river, being the description of the lot now in question, and directing a patent to be issued in the usual form for the same. There is a proviso declaring that this act shall not interfere with or affect the claims of third persons. But giving to this proviso its full force and effect, the enacting clause is a legislative construction of the act of 1824, and locates the patent thereby directed to be issued upon the lot now in question. They are acts in pari materia, and are to be construed together, and in such a manner, if the language will reasonably admit of it, as to permit both acts to stand together and remain in full force. It is not to be presumed that Congress would grant or even simply release the right of the United States to land confessedly before granted. This would be only holding out inducements to litigation. And these two acts cannot stand together without considering the lot in question as coming within the exception of the act of 1824 and the act of 1836, as a confirmation (as it purports to be) of the title to the heirs of William Pollard.

The judgment of the Supreme Court of the State of Alabama is accordingly

Reversed.

MR. JUSTICE McLEAN.

I agree to the judgment of reversal in this case, and as my opinion is mainly founded on the construction of the second section of the

Page 39 U. S. 367

act of 1824, without reference to the exceptions it contains, I will state in a very few words my views in regard to that section.

It declares

&c.

The lots first named in this section are those to which the right of the United States is relinquished, and those lots are now denominated water lots, in contradistinction to those called water lots under the Spanish government.

"All the right and claim of the United States is relinquished to so many of the lots of ground . . . " -- then follows a description of the locality of these lots, lying

"east of Water Street, and between Church Street and North Boundary Street, now known as water lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water lots, in the said City of Mobile,"

and here the description of the locality of these lots ends, and the words "whereon improvements have been made" follow. Now I entertain no doubt the improvements must be made on the lots first named, and to which the United States relinquish their right, and not on those lots named merely to show the local situation of the present water lots. And this is the construction given to the section by the Supreme Court of Alabama.

The improvements then must be made on the water lot, and the lot in controversy in this case is a water lot.

The court instructed the jury that

"if the lot claimed by the plaintiffs had been improved at and previous to 26 May, 1824, and was east of Water Street and immediately in front of the lot so conveyed to John Forbes & Company, then the lot claimed passed by the act of Congress to those at that time owning and occupying the lot so as above conveyed to John Forbes & Company, and that it was immaterial who made the improvements on the disputed lot."

The second section gives to the proprietor of the lot fronting the water lot such water lot, provided it has been improved.

Now two things must concur to give a title under this act, and these are proprietorship of the front lot and improvements on the water lot. But by whom must these improvements be made or owned at the passage of the law?

The act does not specify, and the court instructed the jury that if improvements were made, it was not material by whom they were made. Can this be the true construction of the act?

Congress did not intend to give to the proprietor of the front lot

Page 39 U. S. 368

the water lot unless it was improved; nor did they intend to give to the person who had improved the water lot such lot unless he was the proprietor of the front lot. The improvements of the water lot were as essential to the claim of title under this act as the proprietorship of the front lot. And can it be supposed that Congress intended to give the water lot to the proprietor of the front lot, for the reason that the water lot had been improved by a stranger? In other words, that Congress, by a solemn act of legislation, would give a lot of ground to one man because it had been improved by another? This is the principle asserted by this construction, and it is so unjust and so directly opposed to the legislation of Congress in regard to the preemptive rights on the ground of improvements, that I am unwilling to sanction it. There is no instance in the entire history of legislation by Congress where they have sanctioned such a principle. The policy has been to secure to the individual the benefits of his own labor and expenditure. And I am of the opinion that unless the proprietor of the front lot was, on 26 May, 1824, also the proprietor of the improvements on the water lot, he can claim no title under the act.

MR. JUSTICE BALDWIN.

I fully concur with the Court on all the points embraced in its opinions, as well as the reasons assigned, being fully satisfied with the construction given to the acts of Congress of 1804, 1824, and 1836, I have no desire to add anything to the conclusive views presented in the opinion. But there are other important considerations necessarily connected with the merits of the case which induce me to notice them in a separate opinion, leading to the same conclusion on other grounds.

As it has been my assigned duty on several occasions to examine the subject of claims and titles to land in the various territories which the United States acquired by cession from Georgia, France, and Spain, a broad and varied field of investigation has been opened on a part of which there has been no opinion of this Court as yet delivered. That part is a review of the political condition of the territory between the Perdido and Mississippi from 1800 to 1821, under the Louisiana Treaty, the various acts of the executive and legislative departments of this government in relation to its cession, occupation, government, and adjustment of claims therein, the Constitution, and laws of nations before the ratification of the treaty of 1819, and in connection with that treaty; the judicial exposition of both treaties by this Court. It is a subject of high concern to numerous claimants of land within that territory; to the United States, both in interest and in relation to the formal complaints made by Spain of the omission "to cause the grants of the King to be respected, according to the stipulation of the eighth article of the treaty of 1819." This complaint was made soon after the decision of the case of Foster and Elam v. Neilson in 1829, and in 1832 the Secretary of State, after the decision of the case of

Page 39 U. S. 369

Arredondo, made to the House of Representatives a long and full report in relation to these grants in which he states the opinion of the executive department to be most decidedly in favor of their confirmation on every ground on which they could be considered, and especially on the faith and honor of the United States pledged in the treaty. He felt himself to be unable to answer what he declared to be the just demands and complaints of Spain, and assigned as the sole reason why the executive had not recommended an immediate confirmation of the grants by Congress the two decisions of this Court in those two cases.

Under such circumstances, I take this occasion to throw this responsibility from the Court in the course now pursued, and hope to show most clearly that those decisions have hitherto been much misapprehended, and when taken in connection with subsequent ones, they most conclusively establish the right of the grantees of Spain in the disputed territory, derived from grants made between 1803 and 1810, while Spain was in the undisputed possession west of the Perdido, independently of the treaty of 1819, a fortiori by its stipulations. In so doing, I admit in the fullest manner, for all the purposes of this case and the principles it involves, that this Court is bound to take the east boundary of Louisiana to be the Perdido; that it was a political question, which having been settled by the political departments of the government, cannot be questioned in this; and that, as held in Foster and Elam, 2 Pet. 309, no title can be maintained under a Spanish grant "singly" on the ground that the Spanish construction of the Treaty of 1803 was right and the American construction wrong.

Keeping this principle in view, I shall consider the title of the plaintiff under a Spanish concession made in 1809 by the lawful authority of the King, independent of its confirmation by any special act of Congress, as resting on its validity by the laws of nations, the Constitution of the United States, the ordinance of 1787, the two treaties, and the general course of legislation by Congress in relation to government and property in the disputed territory. It will be observed that the claim of the plaintiff was duly filed and recorded, pursuant to the acts of Congress for adjusting claims to land west of the Perdido; he is therefore not deprived of any benefit which they confer or rights which are reserved, but may rely on any support they may give to his title by his having complied with all the requisitions enjoined. On a subject so broad, so interesting, so vitally affecting the rights of private property, under cessions by foreign powers or the states of this Union to the United States, and course of argument or opinion has hitherto been too limited on the course of the political departments of the government to save the necessity of the course herein pursued. It has been rather assumed than deduced from that detailed investigation which can alone lead to a satisfactory result, on matters so complicated and interwoven into our system of territorial, state, and federal governments.

Page 39 U. S. 370

In 1800, Spain ceded Louisiana to France, by the Treaty of St. Ildefonso, but retained peaceable possession till May 1803, when it was surrendered to France in the same manner in which it was ceded by the previous treaty, declaring that,

"the limits of both shores of the Mississippi shall remain forever fixed by the treaty of Paris in 1763, and consequently the settlements from the River Manshack or Iberville to the line which divides the American territory from the dominions of the King shall remain in the possession of Spain and annexed to West Florida."

Vide 27 U. S. 2 Pet. 303. White's Comp. 164.

In October, 1803, Congress authorized the President to take possession of and occupy the territory ceded by France to the United States and to organize a temporary government "for maintaining and protecting the inhabitants of Louisiana in the free enjoyment of their liberty, property, and religion." 2 Story 907.

In December following, France surrendered the province to the United States, as it was ceded by Spain to France, under the same clauses and conditions, &c., and as this Court has declared, "in every respect with all its rights and appurtenances as it was held by France and received by France from Spain." 35 U. S. 10 Pet. 732.

Spain then was in the possession of the disputed territory by the consent of France expressed in the surrender of Louisiana, and the acceptance of the surrender by France to the United States, as she received it from Spain, was equally a consent by the United States to the continuance of the possession of Spain. Though the United States soon asserted her right to the "sovereignty and propriety" over and in the territory as far east as the Perdido, no attempt was made to disturb the possession of Spain till 1810. From 1803 till October, 1810, the condition of the country was this: Spain was the acknowledged sovereign de facto, in the peaceable exercise of all the powers of government, and claiming to be also the sovereign de jure, the United States neither asserting nor exercising the powers of a government de facto, but asserting her right as sovereign de jure under the Treaty of 1803, and as this Court said

"No practical application of the laws of the United States to this part of the territory was attempted, nor could be made while the country remained in the actual possession of a foreign power."

27 U. S. 2 Pet. 304.

In October, 1810, the President, by his proclamation, ordered military possession to be taken of the disputed territory, declared the laws of the United States to be in force within it, and ordered the inhabitants to be obedient thereto; but it was also declared that in the hands of the United States, the territory was "still left a subject of fair and friendly negotiation and adjustment," &c., and "under the full assurance that the inhabitants shall be protected in the enjoyment of their liberty, property, and religion." Vide 3 State Papers, Foreign Relations 397-398. Proclamation at large. At this time there was a revolutionary convention in session at Baton Rouge, within the disputed territory, claiming to be an independent

Page 39 U. S. 371

government, to be admitted into the Union, and also claiming the "unlocated lands" therein. Id., 395-396.

In replying to these propositions, the Secretary of State, in November, 1810, in asserting the right of the United States as far as the Perdido by the Treaty of 1803, says:

"The delivery of possession has indeed been deferred, and the procrastination has been heretofore acquiesced in by this government from a hope patiently indulged that amicable negotiation would accomplish the purpose of the United States,"

&c. The Secretary then makes these remarks:

"The vacant land of this territory, thrown into common stock with all the other vacant land of the Union, will be a property in common for the national uses of all the people of the United States. The community of interest upon which this government invariably acts, the liberal policy which it has uniformly displayed towards the people of the territories (a part of which policy has ever been a just regard to honest settlers), will nevertheless be a sufficient pledge to the inhabitants of West Florida, for the early and continued attention of the federal legislature to their situation and their wants."

Id., 398.

In enclosing the President's proclamation to the Governor of Mississippi, the Secretary of State directs him to do whatever his powers will warrant to

"secure to the inhabitants the peaceable enjoyment of their liberty, property, and religion and to place them as far as may be on the same footing with the inhabitants of the other districts under his authority."

Id., 396-397.

In January, 1811, the President recommended to Congress in a confidential message the expediency of authorizing him

"to take temporary possession of any part of Florida in pursuance of arrangements with the Spanish authorities and for making provision for the government of the same during such possession."

3 State Papers, Foreign Affairs 394-395. A law was accordingly passed giving the authority required as to the territory east of the Perdido and south of Georgia and the Mississippi Territory, and for organizing a government for the protection and maintenance of the inhabitants of the said territory in the full enjoyment of their liberty, property, and religion. At the same time, Congress resolved under certain contingencies, on the

"temporary occupation of the territory adjoining the south border of the United States, they at the same time declare that the said territory shall in their hands remain subject to future negotiation."

6 Laws 592-593.

In February, 1813, the President was authorized "to occupy and hold all that tract of country called West Florida which lies west of the Perdido not now in the possession of the United States," for which purpose and

"for affording protection to the inhabitants under the authority of the United States, the President was authorized to employ the military and naval force of the United States."

6 Laws 593. This resolution and law remained unpublished till 1821, after the final ratification of the

Page 39 U. S. 372

treaty of 1819, but under them the whole disputed territory was taken and held by the United States till it was annexed to the adjacent states by acts of Congress.

In 1812, that portion which was situated between the Iberville, the Mississippi, the east branch of Pearl River, and the Mississippi Territory was annexed to Louisiana on condition that a law should be passed

"securing to the people of the said territory, equal rights, privileges, benefits, and advantages with those enjoyed by the people of the other parts of the state."

Vide 2 Story 1224, 1230. A law was passed by Louisiana in compliance with this condition. In May of the same year, that portion which was situated between the east boundary of Louisiana and the Perdido was annexed to the Mississippi Territory, to be governed

"by the laws now in force or which may be hereafter enacted, and the laws and ordinances of the United States relative thereto, as if the same had originally formed a part thereof,"

&c., 2 Story 1248; by subsequent acts, this part of the territory was divided between Mississippi and Alabama, and thence formed a part of those states, the former of which was admitted into the Union before the signature of the treaty of 1819 and the latter in December following. Vide 3 Story 1617, 1620, 1635, 1735, 1804. 27 U. S. 2 Pet. 308.

From this summary view of the course of the executive and legislative branches of the government it is apparent that they were in the assertion of the territorial rights of the United States as claimed by them under the Treaty of 1803; it is also apparent from the solemn pledges made by both departments that the possession of the country was taken and held by force, yet subject to future negotiation as to the right of sovereignty and propriety, and full assurances to the inhabitants of being maintained and protected in the free enjoyment of their property.

Before proceeding to the stipulations of either treaty, it is now necessary to notice those acts of Congress which are referred to in the President's proclamation of 1810, in which he declares

"That the acts of Congress relating to this territory, though contemplating a present possession by a foreign authority, have contemplated also an eventual possession of the said territory by the United States, and are accordingly so framed as to extend their operation to the same."

3 State Papers, For.Aff. 397.

The principles of this proclamation were adopted by Congress, whereby the laws which bound the inhabitants of the disputed territory at the same time protected them in their rights of property as completely as in the Island of Orleans or west of the Mississippi; these laws were suspended in their operation during the occupation of Spain, but applied to the whole country ceded by France to the United States as soon as it came into their possession, and their provisions, from the first to the last, are of a uniform character. Whenever Congress gave authority to take possession of the ceded territory and provide for its temporary government, the declared

Page 39 U. S. 373

object was "to maintain and protect the inhabitants in the enjoyment of their property," &c., as has been seen in the act of 1803. 2 Story 907.

By the act of 1804 it was provided that "no law shall be valid which is inconsistent with the laws and Constitution of the United States." 2 Story 933. "The laws in force in the said territory and not inconsistent with this act shall continue in force until altered, modified, or repealed." 2 Story 937.

The act of 1805 authorized a government similar to that of the Mississippi Territory, and declared the ordinance of 1787 in force (except as to the descent of estates and slavery) and continued the existing laws till altered, &c.; it also authorized the admission of the territory into the Union according to the third article of the Treaty of 1803. 2 Story 963, 964.

As this act placed the whole ceded territory under the same system of government as Mississippi, we must look to the acts of 1798 and 1800, which organized a government over that territory (before any cession was made by Georgia to the United States) without the consent of Georgia, and while the whole territory over which the United States thus assumed jurisdiction, was claimed by Georgia. This is necessary in order to ascertain what effect the United States intended that their occupation of the territory then in controversy should have upon the rights of Georgia, or of the proprietors of lands claiming under that state. This is the more important when the compact with Georgia in 1802 is applied to the preexisting state of things in the territory in dispute between her and the United States, for it will be found in all respects analogous to the state of things existing in the country west of the Perdido before the treaty of 1819 took effect, and that the proclamation of the President and the acts of Congress for taking the possession of West Florida and annexing it to the contiguous territories first and then to the states, contain pledges fully as strong, and to the same import, as those given to Georgia by this provision of the acts of 1798 and 1800:

"That the establishment of the said government shall in no respect impair the right of the State of Georgia or of any person or persons either to the jurisdiction or the soil of the said territory, but the rights and claims of the said state and of all persons interested are hereby declared to be as firm and available as if this act had never been made."

1 Story 495, 778.

In connection with this provision it must be observed that up to 1797, Spain had claimed and occupied the southern portion of the Mississippi Territory as part of Florida; pursuant to the treaty of 1795, she surrendered all the country north of the 31° north latitude to the United States. The words "any" and "all persons" extend, therefore, as well to those who claimed lands north of that line under Spain as those who claimed under Georgia, and as Spain had relinquished her rights to the territory, those of Georgia alone were noticed, while the granters of either stood on the same precise footing under these laws. But the treaty of 1795 between

Page 39 U. S. 374

the United States and Spain, gave those claiming under her this protection.

"It is also agreed that the inhabitants of the territory of each party shall respectively have free access to the courts of justice of the other, and they shall be permitted to prosecute suits for the recovery of their property, &c., and the proceedings and sentences of the said courts shall be the same as if the contending parties had been citizens or subjects of the said [same] country."

Art. 20, 1 Laws U.S. 276.

This analogy between the condition of the territory south of the 31° north latitude and west of the Perdido, and that which lies north thereof, has been made the more applicable by the act of 1812, which, it has been seen, applies the laws and ordinances of the United States, and the laws then in force, to the territory west of the Perdido, precisely as "if it had formed originally a part of the Mississippi Territory." 2 Story 1248. And as the act of 1805 put the territorial government of Louisiana and Mississippi on the same footing, all the laws applicable to the one must be applied to the other and every part of it whenever the United States assumed the powers of government. The act of 1805 adopted the ordinance of 1787, enacted for the government of the territory north and west of the Ohio in general terms; the act of 1798 is more explicit in declaring

"That from the establishment of the said government, the people of the aforesaid territory shall be entitled to and enjoy all and singular the rights, privileges, and advantages granted by that ordinance"

in as full and ample manner as they are enjoyed "by them." 1 Story 495.

Among these rights, &c., are that of trial by jury, the writ of habeas corpus, judicial proceedings according to the course of the common law, the protection of property, the inviolability of contracts, and the right of admission into the Union on an equal footing with the original states. 1 Laws U.S. 479. In addition to which, the third article of the Louisiana Treaty stipulates that

"The inhabitants of the ceded territory shall be incorporated in the Union of the United States and admitted as soon as possible, according to the principles of the federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and in the meantime they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion they profess."

This, then, was the condition of the disputed territory and its inhabitants from the time the United States took possession and governed it as a part of their territory. The right of sovereignty and general propriety remained subject to pending negotiation; the civil rights of the people, and their rights of property were protected by various acts of Congress -- the Ordinance of 1787, the Treaty of 1803, and the Constitution of the United States. The local laws remained in force till altered, and the political rights of the people were such as existed in all the other territories. 26 U. S. 1 Pet. 542. When these territories became states, the inhabitants thereof became

Page 39 U. S. 375

citizens of those states, and as such entitled to all the rights which citizens enjoyed in other states, and the subjects of Spain, who owned or claimed property, had, by the twentieth article of the treaty of 1795, the same right of suing for its recovery in the courts of the United States as one of its citizens had. 34 U. S. 9 Pet. 234.

On this state of things, the treaty of 1819 had no influence; at the time of its ratification, the whole disputed territory was annexed to the contiguous states; the inhabitants were incorporated in the Union, and were citizens of the United States, and the respective states, in virtue of what this Court most truly denominate acts of "sovereign power" exercised by them under the Treaty of 1803 over a part of what the United States insisted and Spain denied, was a part of Louisiana, claiming only to stand in the place of the King, and, during negotiation, to exercise the powers and rights which he had exercised till 1810; the United States had never attempted by law to impair any right of private property or to insert such stipulation into the treaty of 1819 (2 White's Rec. 498), but expressly disclaimed such intention and admitted the validity of all fair grants. 2 White's Rec. 499, &c.

Every public act of Congress from 1803 till 1813 which authorized the President to take possession of Louisiana or to establish therein a temporary government, and every law which related to the subject, contained an express guarantee of property; the same guarantee was also given by the President in 1810, when, in virtue of the act of 1803, he took forcible and military possession of the disputed territory. And Congress confirmed this guarantee by their secret acts of 1811 and 1813, unless protection to the inhabitants of the territory consisted in confiscating their lands and depriving them of the property acquired under the government and laws of Spain while she held possession with the consent of the United States. Every act of the executive and legislative branches of the government shows that the contest with Spain was for the right of sovereignty over the territory and the propriety in the vacant land therein, not for the right to what had been granted according to the laws of Spain or which had otherwise become private property. 31 U. S. 6 Pet. 735.

Claiming the territory between the Perdido and the Mississippi by the Louisiana Treaty, the United States was bound by the express terms of the second article, which included

"islands belonging to Louisiana, all public lots and squares, vacant lands, and all public buildings, fortifications, barracks, and other edifices, which are not private property."

32 U. S. 7 Pet. 87-88. No land which was not vacant (no land which was private property) passed to the United States but was excepted from the cession not only by the second article but by the guarantee by the United States to the inhabitants in the third article of the free enjoyment of their property until their admission into the Union. From the pledge to maintain and protect this right the United States never set up any absolution, or from the pledge to hold the territory subject to future negotiation. What was considered as vacant land by the Executive Department

Page 39 U. S. 376

in 1810 has been seen by the letter of the Secretary of State on the same day as the proclamation of the President that land which was to be thrown into the common stock with all the other vacant land of the United States for the national uses of all the people thereof -- land which remained as a part of the royal domain when the United States took possession in virtue of the Treaty of 1803, which was not private property.

This state of things as to government and property in the disputed territory fully justified the view which the executive department of the government took of this subject in 1832, which was in perfect accordance with the proclamation of the President twenty-two years before and with the course of the legislature from 1811 to 1819 in relation to the rights of private property in the disputed territory held under grants of the Spanish authorities before the United States took possession. It was by both departments the most solemn recognition of the principle that a contest between the two governments concerning territorial boundary did not and should not impair individual rights of property and of its practical operation on grants made by the government in possession, and such recognition carried with it the most sacred obligations to carry that principle out in all its consequences independently of any stipulation in the treaty of 1819.

By the third article of the Louisiana Treaty, the United States were bound to protect and maintain the inhabitants of the ceded territory "in the free enjoyment" of their "property" until they were incorporated into the Union, and when so incorporated to admit them "to the enjoyment of all the rights, advantages, and immunities of citizens of the United States." From the moment of such incorporation, the Constitution of the United States and its amendments interposed between the inhabitants and the legislative power of the United States the same guarantee which any citizen of any other state had a right to claim for the enjoyment of his property, and every proprietor, alien, or citizen, had the same constitutional right to invoke the protection of the judicial power of the state or Union against the invasion of his rights of person or property, wherever he might be located. 27 U. S. 2 Pet. 235.

That such incorporation was by acts "of sovereign power by the United States" exerted by military operations expelling the existing authority of Spain and compelling the inhabitants to submit to that of the United States, so far from diminishing, increases their constitutional and treaty obligation, for such forced submission is in the nature of articles of capitulation, the observance of which is enjoined by the laws and practice of all civilized nations. 26 U. S. 1 Pet. 542. The proclamation of the President and the acts of Congress declared the terms on which the United States established their authority; the inhabitants submitted, and thereby became entitled to the threefold protection of the Constitution, treaty, and law of nations. 2 U. S. 2 Dall. 1, &c.

Had Spain made a voluntary transfer of the allegiance of her

Page 39 U. S. 377

subjects in this part of Louisiana, as she did in the residue, the duty of the United States could not have been doubted; it never has been doubted by any department of the government or any member of it as to every other portion of the territory ceded by the Treaty of 1803, and the universal opinion of the people and government has been that the rights acquired and the obligations imposed by that treaty were throughout concomitant. Spain, indeed, might deny the right of the United States west of the Perdido to have become in any way strengthened by the annexation of that part of Louisiana to the adjacent states by an act of war or mere sovereign power, but when the United States undertook to construe and execute the treaty in their own way, and as they did in asserting their rights accruing by the cession, every rule and principle of national honor, faith, and law would be violated if they should deny their duty to comply with the terms of the treaty, which alone gave them any right, or with the pledges which they gave when they took possession in virtue of its stipulations.

It matters not by what right the United States held the disputed territory at the time of its incorporation into the Union; had it been done without the color of right or had East Florida been so incorporated before the treaty of 1819, the consequences would have been the same; by the very and sole act of such incorporation, the inhabitants became citizens of the United States, their property was protected, and alien proprietors became entitled to all rights secured to them by any treaty between their sovereign and the United States.

In addition to these considerations, the acts of Congress from 1803 till 1811, before the United States took forcible possession, which, as the President declared in his proclamation in 1810, were "so framed" as to apply to that territory whenever the contemplated eventual possession by the United States should take place, secured to the inhabitants every protection which those laws, the treaty, and ordinance of 1787 could impart, and no subsequent law has attempted to impair any right thus secured, denied its existence, or asserted any right in the United States to lands which were private property in 1810. A more clear and correct exposition of the policy and course of the United States cannot be presented than the following remarks of the Secretary of the Treasury in presenting a plan for the final adjustment of all claims by Spanish grants pursuant to resolutions of the Senate and House of Representatives in 1818.

"In presenting a plan of final adjustment, in which no other description of claims are comprehended than those which are founded upon patents and concessions issued by the several governments which have at different times exercised sovereign jurisdiction over the late province of Louisiana, as held by France, the undersigned . . . has proceeded upon the conviction that ample provision has already been made for the adjustment of all claims to lands contemplated by the resolution founded upon evidence inferior to patents and concessions.

Page 39 U. S. 378

He has arrived at this conviction by a careful examination of the several acts of Congress for ascertaining and adjusting land titles in Louisiana which have been passed since 20 December, 1803, the period at which possession was taken of that province by the United States. This long series of acts, commencing with 26 March, 1804, and terminating with 29 April, 1816, presents an uninterrupted and uniform course of relaxation in favor of land claimants of every description. This relaxation has generally been effected by comprehending descriptions of cases not recognized by previous acts, by extending the time within which notices of claims and production of evidence were required, and by giving authority not only to decide upon such claims, but to revise and confirm such as had been previously rejected. When it is considered that in all these respects relaxations have been frequent, and that the evidence upon which the claims have in the first instance, and in each successive revision been decided, has in most cases been that alone which has been produced by the party in interest, it is extremely improbable that injustice has been done by the rejection of claims which ought to have been confirmed."

"Considering, then, that the titles to lands in the State of Louisiana west of the east boundary of the island of New Orleans, so far as they are derived from or dependent upon any act of Congress, are correctly and finally settled, nothing more is necessary than to prescribe a rule by which the validity of titles not dependent upon the acts of Congress may be promptly and legally determined,"

&c. 3 state Pap. Public Lands 393.

The Secretary then presented a bill providing for the final adjustment of claims to lands throughout the whole extent of Louisiana, including those in the disputed territory, but it was not enacted into a law; Congress however continued to act as they had before done, in a spirit of unceasing liberality toward claimants, each successive law relaxing from the strictness of former ones.

This is apparent from an inspection of the various acts of Congress from 1805 in relation generally to claims to land in Louisiana; as the principles of this case require a reference only to those laws which relate to the territory between the Perdido and the Mississippi, the others need not be noticed any further than in the preceding general review by the Secretary of the Treasury and the following declaration made by this Court in 1827 in reference to the legislation of Congress, which is quoted in the opinion in the present case, that

"the United States has never, so far as we can discover, distinguished between the concessions of land made by the Spanish authorities within the disputed territory, whilst Spain was in the actual occupation of it, from concessions of a similar character made by Spain within the acknowledged limits."

25 U. S. 12 Wheat. 600-601.

This declaration will be found to be fully justified by a reference to all the acts of Congress in relation not only to their whole territory acquired by the Treaty of 1803, but to that which was acquired

Page 39 U. S. 379

by the compact or treaty of cession between Georgia and the United States in 1802. By this compact, Georgia ceded to the United States the right of soil and jurisdiction to all the territory within her chartered boundaries which was situated west of the Chatahouchee on certain conditions, one of which was that all grants of land made by the British or Spanish governments before 25 October, 1795, should be confirmed, to carry which into effect various laws were passed in 1803, 1804, and 1805. 2 Story 894, 952, 966. These acts related to the territory north of 31° of latitude which had been the subject of controversy between the governments of Florida while under Great Britain and Georgia within which the Governor of West Florida had made grants before the cession to Spain by the treaty of peace in 1783, within which Spain made grants from that time till 1797, when she gave up possession to the United States, and within which Georgia had also made grants up to the Mississippi. It was therefore in the strictest sense disputed territory, claimed by the three parties -- the United States, Spain, and Georgia -- at the date of the grants. The laws relating to the adjustment of titles to land therein, necessarily referred to grants made by a government de facto, which the United States denied was a government de jure, and the laws, being on a kindred subject, would of course be analogous in their provisions and receive the same construction as those which related to the territory which was in dispute between the United States and Spain from 1804 till 1821.

In examining the provisions of all the laws for adjusting the claims to lands in Louisiana and Florida, they will be found to be patterned from those in relation to the compact with Georgia, and as will be seen hereafter, have been construed alike by this Court. The first law which related exclusively to claims to land west of the Perdido was passed in 1812; the previous laws applied generally to Louisiana as ceded by the treaty, making no distinction between that part which was disputed and that which was in the possession of the United States as surrendered in 1803. But as the practical operation of the laws of the United States depended on the President in his execution of the authority conferred on him by the Act of 1803, 2 Story 907, it is evident that these laws could not be carried into effect by establishing land offices and organizing boards of commissioners to adjust claims to land within that part of the territory, which was at the time occupied and governed by Spain. No government can exercise legislative powers within the territory actually in the possession of another sovereign; this can be done only when such possession is displaced by force or surrendered by treaty or otherwise; hence it appears that no provision was made for the adjustment of claims to lands west of the Perdido till by the President's proclamation, the resolution and acts of Congress, the United States had obtained possession of the greater part of West Florida. Then the act of 1812 provided for the appointment of commissioners, with the powers conferred by former laws; directed all

Page 39 U. S. 380

claimants to lands in the disputed territory to deliver notice and evidence of their claims within a limited time and to state the written evidence thereof, whether the claims arose under the British, French, or Spanish governments, together with the nature and extent thereof, &c., provided that where the claim is by a complete grant, it shall not be necessary to have any other evidence entered than the original grant, order of survey, and plot of the land. On failure to deliver notice of the claim as required by law, the claim shall never after be confirmed or recognized by the United States or any written evidence thereof which shall not be recorded, ever after be admitted in evidence in any court of the United States, against any grant which may thereafter be made by the United States. 2 Story 1235. The commissioners are empowered to inquire into the justice and validity of all claims filed with them, and it is made their duty to ascertain whether the land claimed has been inhabited and cultivated, when it commenced, when it was surveyed, by whom, on what authority, and every matter which may affect the justice and validity of the claim; to arrange the claims into classes, according to their respective merits, and to make a report thereon for the final action of Congress. 2 Story 1235. By the act of 1814, the commissioners were directed to receive evidence in support of any claims not embraced in the former law. 2 Story 1427. Pursuant to these laws, reports were made by the commissioners classifying the claims thus:

1. Claims founded on complete British, French, or Spanish grants, which in their opinion are valid, agreeably to the laws, usages, and customs of such governments, in all four hundred and thirty claims.

2. Claims founded on orders of survey (requette), permission to settle, or other written evidence of claim derived from either government, which ought to be confirmed, in all four hundred and twenty-six claims.

3. Claims founded on complete grants said to be derived under such governments which, in the opinion of the commissioners, are not valid, in all fifty-eight claims.

4. Claims founded on orders of survey &c., which ought not to be confirmed, in all two hundred and ninety-eight.

5. Claims of actual settlers not derived from either government, in all one thousand four hundred and twenty. Vide Reports of Commissioners, 3 State Papers, Public Lands, 6, 7, 5, 38-48, 13, 58, 59, 66, 67-76, 254-268.

The reasons for rejecting the third and fourth classes of claims are founded on the fourteenth section of the act of 1804; that they were made after the cession by France to the United States; that the grants were unusually large, and made after Spain had ceased to have any right or interest in the soil, but it is added,

"Admitting the claim of the United States to the country above mentioned to be unquestionable (and I see no reason to doubt it), the question then arises how far the possession of that country by the Spanish government, after the right of the United States accrued, ought to

Page 39 U. S. 381

affect those claims which were granted by the former government during the time which intervened between the purchase and the time when possession was taken by the United States? If the United States had taken possession of West Florida at the same time that they did of Louisiana west of the Mississippi, many serious injuries to individuals might have been prevented. As this was not the case, it becomes an inquiry of interest and importance whether the government is not morally bound, both by considerations of equity and policy, to make them a compensation commensurate to the injuries they may have sustained. This could be done by making them donations of any quantity of land which the government may deem just, particularly that class of claimants who have improved and cultivated their lands. They are not numerous, and with few exceptions their claims are moderate. It may not be impertinent also to remark that, generally speaking, they were such persons as were most liable to be deceived by the Spanish officers."

"In relation to that class of claimants who have not inhabited or cultivated their lands, which is generally the case with those who hold large claims, it appears to the commissioner that the government of the United States is not legally bound to confirm them. Nevertheless, from a variety of considerations which will doubtless enter into the decision of this question, the government may deem it politic either to confirm their claims to a certain extent or in some other way to effect a compromise with them. Their unlimited confirmation would, in the opinion of your commissioner, seriously injure many individuals, some of whom probably resided on the lands before they were surveyed for the patentees."

3 State Papers, Pub.Lands 66.

The reasons for adjudging the claims of the first class to be valid are that they

"comprehend patents derived from the British and Spanish governments at a time when they possessed and exercised the undisputed sovereignty of the soil, and they ought, in the opinion of the undersigned commissioner, to be confirmed by the United States."

3 State Papers, Pub.Lands 66.

That he alluded to the sovereignty de facto is evident, for the list of cases under this class is that in which there appear eighty-six cases of grants made by Spain after the date of the Louisiana Treaty, on twenty-seven of which no settlements were made till after 20 December, 1803. This is the more apparent in the reasons for confirming the claims of the second class under incomplete titles.

"Those made by Miro, &c., were originated by the Spanish authorities prior to the purchase of Louisiana by the United States, and agreeably to the laws, usages, and customs of the then existing government, would have been completed by the same power that made them."

3 State Papers, Pub.Lands 66.

In relation to the claims issued by Morales subsequently to the aforesaid "purchase," &c., he observes that

"Although in his estimation they do not occupy the same grade with those of the first class,

Page 39 U. S. 382

yet he conceives it just and equitable that they should be confirmed. This opinion is not predicated upon the validity of their orders of survey, but simply upon the fact that they occupied and cultivated their lands and complied with all the requisitions of the government which at that time exercised ownership over the soil. By reference to the register it will be seen that some of the last mentioned claims exceed in quantity the ordinary donations made by the Spanish government prior to the purchase of Louisiana by the United States. When this is the case, it is believed the government of the United States may limit its confirmation to any extent which it may be deemed just, both in regard to the number of arpents in each tract, and the number of tracts claimed by the same person."

In this class of incomplete titles there are two hundred and sixty claims by orders of survey, &c., made after the Treaty of 1803, on few of which settlements were made till after 20 December, 1803.

These reports were transmitted according to law and laid before Congress in 1816. 3 State Pap. 6. In April, 1818, the Senate and House of Representatives instructed the Secretary of the Treasury to report a plan for the final adjustment and settlement of these claims, which he submitted in December following, accompanied with the draft of a bill enacted 3 March, 1819, and classing the claims as follows:

1. Claims founded on complete grants from the Spanish government, which are in the opinion of the commissioners valid and agreeable to the laws, usages, and customs of the said government. The first section declares that

"They be and the same are hereby recognized as valid and complete titles against any claim on the part of the United States or right derived from the United States."

And certain claims under British grants are so recognized. 3 Story 1748.

2. Claims founded on orders of survey, permission to settle, requette, or any written evidence of claim derived from Spain before 20 December, 1803, and the land cultivated, &c., before that day, which in the opinion of the commissioners ought to be confirmed. The second section declares that they "shall be confirmed in the same manner as if the title had been completed." 3 Story 1748. Burchard 316.

3. All other claims comprised in the reports of the commissioners and which ought in their opinion to be confirmed, "the claimant shall be entitled to a donation not exceeding one thousand two hundred and eighty acres," &c.

4. All persons embraced in the reports who have no written evidence of claim and had settled the land claimed before 15 April, 1813, "shall be entitled to the same as a donation," not exceeding six hundred and forty acres.

5. Every person in the list of actual settlers who has no written evidence of title and on 12 April, 1814, had inhabited or cultivated a tract of land "shall be entitled to a preference on becoming a purchaser."

Page 39 U. S. 383

Time for filing claims is extended, and provision is made for a revision of claims which had not been recommended for confirmation. Under the provisions of the act of 1819, the commissioners reported numerous other claims for confirmation, comprising all classes, vide 3 State Papers, Pub.Lands 436, 442, 447-451, including lots in the Town of Mobile, which reports were acted on by Congress by the Act of 8 May, 1822, as to the lots in Mobile, 3 Story 1860, and as to lands by an act of the same date, 3 Story 1867.

In both these acts, the claims are classed as in the act of 1819; complete grants are recognized as valid, &c., incomplete grants are confirmed, &c., and donations made to settlers, &c., as was done by that act, and the last recognizes the laws, usages, and customs of Spain as the test of a grant's being complete to vest the title.

Both the acts of 1819 and 1822, being founded on the reports of the commissioners in 1816 and 1820, must be taken with reference thereto, and recognizing the claims therein reported as valid, to be complete titles by their intrinsic effect. In the report of 1816, the commissioner says those claims of the first class,

"being founded on complete grants of former governments, we think are good in themselves on general principles, and therefore require no confirmation by the government of the United States to give them validity"

3 State Papers 267, and in that of 1820 that

"they are certainly entitled to unqualified confirmation, 3 State Papers 441, and in relation to surveys on incomplete grants, the same rule is adopted in relation to those laws, customs, and usages."

Section fourth directs the register and receiver, &c., except in relation to perfect titles as recognized in the first section of the acts of 1819 and 1822, shall have power to direct the manner in which all lands claimed thereby shall be surveyed and located, having regard to the laws, usages, and customs of the Spanish government on that subject, and also to the mode adopted by the United States. 3 Story 1868. Burchard 352. 4 Story 2168.

Subsequent laws extended the time for filing claims, and various reports continued to be made and laid before Congress; these laws were more liberal in their provisions than former ones, in accordance with the general policy of Congress, and more especially on account of a strong remonstrance by the Legislature of Louisiana on the subject. Vide 3 State Papers 430. 432. Vide also 3 Story 1907, 1909, 1968, 2009, 2017. Burchard 312, 394, 404.

By the act of 1832, provision was made for the adjustment of all claims filed by 1 July, 1833; the sales of land in the disputed territory were suspended for one year, and where claims were unconfirmed but were embraced within the provisions of previous laws, and the land had been sold by the United States, the owners were entitled to receive the purchase money for which the land was sold at public sale. 4 Story 2303.

Pursuant to this act, reports were made and confirmed by the act of 1835, 4 Story 2419, and decisions in favor of land claimants

Page 39 U. S. 384

pursuant to the act of 1835, were confirmed by the act of 1836. 4 Story 2514.

From this review of the course of the executive branch of the government in 1810 and the decisive opinion expressed in 1832 as to the title to land in the disputed territory being valid in the view of the United States and Spain during the negotiations which preceded the treaty of 1819, and from the whole legislation of Congress from 1803 till 1836, there can remain no ground for mistaking their mutual understanding of the effect of the Treaty of 1803 in its obligation on the United States to protect the private property of individuals in the disputed territory. In this respect. the treaty of 1819 was not taken into consideration, for the United States was bound by every guarantee which a government could give to the people, as strongly as any new treaty would bind them; but a new treaty was necessary to disencumber the disputed territory from the pledges under which the United States took and held possession from 1810.

To this state of the disputed territory, as developed in the preceding review in relation to its government and the rights of private property during an adversary claim by Spain and the United States, and pending negotiations for seventeen years, the final treaty must be referred in order to ascertain its bearing on this case.

The subjects of controversy were the east and west boundary of Louisiana according to the cession by Spain to France in 1800 and by France to the United States in 1803. The objects of the treaty were 1. to define the west boundary, 2. to procure a cession of East Florida to the United States, 3. to settle the controversy as to the east boundary by a general cession and relinquishment of all the claims and pretensions of Spain east of the Mississippi, and 4. to stipulate the terms and conditions on which all past controversies should be terminated and the cession made.

The title of the treaty shows its nature: "A Treaty of Amity, Settlement, and Limits;" its declared objects, and the intention of the parties are "the adjustment of all differences," "to finally settle, determine, and adjust all differences and pretensions by a treaty," "the restoration and permanent establishment of mutual and sincere friendship, to consolidate, confirm, and forever maintain, the good correspondence which happily prevails, and with the most earnest desire of conciliation, and with the object of putting an end to all the differences which have existed between them." Vide the preamble to the treaty and the seventh article.

"Art. 1. There shall be a firm and inviolable peace and sincere friendship between the United States and their citizens, and his Catholic Majesty, his successors, and subjects, without exception of persons or places."

"Art. 2. His Catholic Majesty cedes to the United States, all the territories which belong to him east of the Mississippi, known by the name of 'East and West Florida,' . . . and all vacant lands which are not private property. "

Page 39 U. S. 385

Art. 3. The first clause fixes the west boundary of Louisiana at the Sabine, &c. By the second clause, his Catholic Majesty "cedes to the United States all his rights, claims, and pretensions to any territory east of said line," and forever renounced them.

Art. 8. Stipulates for the confirmation and ratification of

"all the grants of land made before 24 January, 1818, by his Catholic Majesty or his lawful authorities in the said territories ceded by his Catholic Majesty to the United States,"

&c.

It is not necessary to take any further notice of the other parts of this treaty or give any detail of its provisions; it suffices for all the purposes of this case to consider it as having effected all its declared objects according to the declared intention of the parties without exception of persons or places. So both governments have ever considered it, and the once disputed territory has been peaceably held by the United States according to the terms of its stipulations, and not by the mere force of the Louisiana Treaty or "the acts of sovereign power" exercised by the United States previous to the ratification. The political departments of the government have uniformly recognized its application to the disputed territory as a cession and renunciation by Spain of all her claims and pretensions, and thereby putting a final end to all existing differences and disputes concerning boundary under the treaties of 1800 and 1803. This Court has also so considered it by declaring in 1827 that "the United States have since obtained the Floridas by purchase and cession from Spain," 25 U. S. 12 Wheat. 600, and in the first sentence of their opinion in Garcia v. Lee repeating this declaration in language which cannot be misapprehended or misapplied, and is in these words:

"The land is situated in the State of Louisiana and in the territory lying north of the Iberville and between the Perdido and the Mississippi, which was so long a subject of controversy between the United States and Spain and which was finally settled by the cession of the Floridas to the United States by the Treaty of February 22, 1819."

37 U. S. 12 Pet. 515.

On this point, then, there is a perfect union of opinion by all the departments of the government that this treaty applied to the disputed territory; that it finally settled all former controversies concerning it, and that it was done by a cession by Spain, and a purchase by the United States.

These propositions are perfectly consistent with the assertion by the United States of their original right to this territory under the former treaties; they have bought their peace; Spain has ceded her claims and pretensions; though neither party has acknowledged the original right of the other, 27 U. S. 2 Pet. 310, yet both agree that for the future, it belongs to the United States in full sovereignty and propriety, as it was claimed by Spain. If, indeed, any doubt could be raised on the terms of the treaty, the interest of the United States requires that they should be construed so as to effect the objects declared, for if the cession and purchase do not include the disputed territory, the United States still hold it subject to future

Page 39 U. S. 386

negotiation, according to the declaration of the President in 1810 and Congress in 1811. It has not and cannot be asserted with truth that there is yet subsisting a controversy between Spain and the United States on this subject, nor can there be a suggestion of any act of cession, relinquishment by Spain, or any recognition of the right of the United States unless it is found in the treaty of 1819, or any release of the pledge under which possession was taken by force unless by the operation of its stipulations upon the territory thus seized, and further, if the confirmation of grants by the eighth article, does not extend to those made for lands west of the Perdido, the clause which annuls those made after 1818, and the grant to Vargas, is equally inapplicable to defeat them, and if there is any part of East or West Florida to which the treaty does not apply or any exception of persons or places within either is made by any construction of any part of the treaty, it is an express contradiction of the first article, which negatives all exceptions. The treaty must then be taken as the court has declared it, or all its stipulations must be confined to East Florida and that part of West Florida which lies east of the Perdido, leaving all controversies before subsisting in full force as to territory west of that river.

The nature and character of this treaty forbid an interpretation which would make it a violation of the honor and faith of the United States, so often pledged, and jeopard their interest by considering the disputed territory to yet be in their hands, subject to future negotiation, a conclusion from which there is no escape if the negotiation which ended by the ratification of the treaty in 1821 did not settle all controversies. By referring to the terms of the ratification, there can be no doubt of the declared meaning of the King of Spain and the treatymaking power of the United States, as well as to what was ceded to the United States, as the effect and force of the treaty when ratified, and the ratifications exchanged. In the act of the King, it is important to observe that he declares the cession to be made by the second and third articles, the bearing of which on the eighth article will be seen to have a most conclusive effect when the case of Foster and Elam v. Neilson comes under review. The King says:

"Whereas, on 22 February, 1819, a treaty was concluded . . . consisting of sixteen articles which had for their object the arrangement of differences and of limits between both governments and their respective territories, which are of the following form and literal tenor."

Here follows the treaty.

"Therefore, having seen and examined the sixteen articles aforesaid and having first obtained the consent and authority of the general Cortes of the nation with respect to the cession mentioned and stipulated in the second and third articles, I approve and ratify all and everyone of the articles referred to, and the clauses which are contained in them, . . . promising on the faith and word of a King to execute and observe them and to cause them to be executed and observed entirely as if I myself had signed them. . . . "

Page 39 U. S. 387

In pursuance of the advice and consent of the Senate, the President declared:

"I, . . . having seen and considered the treaty above recited, together with the ratification of his Catholic Majesty thereof, do . . . by these presents accept, ratify, and confirm the said treaty and every clause and article thereof as the same are herein set forth,"

and after the exchange of ratifications, declared:

"Now therefore, to the end that the said treaty may be observed and performed with good faith on the part of the United States, . . . I do hereby enjoin and require all persons bearing office . . . and all others within the United States faithfully to observe and fulfill the said treaty and every clause and article thereof."

6 Laws U.States 628, 631.

I cannot deem it necessary to reason on language like this, used in an act so solemn, by which two nations closed an inveterate controversy which had subsisted for seventeen years on terms satisfactory to both in order to show what they intended as a mutual object, or whether they effected what they intended. An inspection of the treaty from its title to the ratification affords more conclusive evidence of its intention and effect than human ingenuity or reasoning can elicit by a commentary or any effort to illustrate its provisions. It is what it purports, an amicable settlement of all past differences, without exception of persons or places, by a cession by one party of its rights to sovereignty and the vacant land in the whole territory east of the Sabine River, which is not private property; what is private property is excepted from the cession by the terms of the second and third articles, and one of the conditions of the cession is the confirmation and ratification of all grants made before ascertain time for lands in the ceded territories excepting three. Compensation is made for mutual claims; all past complaints are redressed, and the United States holds the disputed territory freed from all past pledges by the consent of Spain, and the stipulated confirmation of grants made by the King or his lawful authorities saves his honor and faith pledged to the grantees. Peculiar force is to be given to this stipulation in the eighth article when it is considered that two full years elapsed between the signature and final ratification of the treaty and that the sole cause of the delay arose from those grants, one of which was for land west of the Perdido. 27 U. S. 2 Pet. 312. Those having been annulled by the King were excepted from confirmation, leaving all other fair grants within the stipulations of the eighth article according to the declared intention of both negotiators of the treaty, of the parties thereto, and its true construction. Another decisive consideration of the effect of this treaty is presented by taking it in connection with the Treaty of 1803 and the various acts of the political departments of this government before referred to; it applied to a territory which formed part of the states of this Union, and to its inhabitants, and other proprietors of land, who hold their property by the most sacred guarantee, and were already in the full fruition of

Page 39 U. S. 388

all the rights of citizens of the United States, and the states to which the territory had been annexed.

It must be remembered that as the United States claimed the territory west of the Perdido in virtue of the Treaty of 1803, they must hold it subject to its obligations and the terms of the cession, and that by first governing it as a portion of the Territory of the United States and afterwards annexing it to the adjacent states, the rights of property were protected by the ordinance of 1787, the constitution of the states, and of the United States. No new guarantee was given to the grantees of Spain in the disputed territory by the treaty of 1819, but it was a renewal of all former pledges of the United States by the Treaty of 1803, their acts, and the Constitution, to neither of which Spain was a party, but as Spain would neither cede nor abandon her claim without a renewed pledge of nation to nation in the most solemn of all international acts, the pledge was renewed both to the King, his subjects, and grantees, which was additional to all the previous promises and obligations of the United States to protect property, fairly and lawfully acquired, and maintain its free enjoyment.

There is another view in which the treaty of 1819 must be considered in order to give it its constitutional and intended effect by operating directly on all the subjects to which it relates, where no future act is stipulated to be done by either party or the thing stipulated is in its nature to be performed in future, as the incorporation of the territory and its inhabitants into the Union, which is necessarily a prospective act. But the cession by the King and the confirmation of grants must be taken to be acts done and perfected by force of the treaty itself, and by the terms of the ratification by both parties, for it is difficult to conceive how every article and clause of the treaty can be ratified and confirmed "by these presents," or how it can be observed and performed by civil officers and others if any future act of legislation is necessary to give it validity or effect by the King as to the cession or by the United States as to the clause of confirmation. If the question was new, it would seem to be settled by the Constitution, for if a treaty made under its authority is a supreme law of the land, it would be a bold proposition that an act of Congress must be first passed in order to give it effect as such, and equally bold to assert, as the American view of the faith of treaties by the law of nations, that its stipulations may be performed or not at the discretion of Congress. If, on the principles of the law of nations or national faith, one treaty should be held more sacred than another, that of 1819 stands in bold relief as a settlement of past controversies, on mutual considerations and stipulations, so dependent on each other, that the nonperformance by either party of any part would necessarily defeat the whole object and effect of the treaty and renew old disputes. Thus, if the disputed territory and its inhabitants and proprietors "are excepted places" and "persons," then there has been no cession to the United States by the King and no confirmation

Page 39 U. S. 389

of his grants stipulated for by the treaty; both nations stand towards each other on their original right, and the rights of individuals to property remain as if no treaty had been made, and negotiation still continued, whereas if the territory west of the Perdido is ceded by the treaty, every clause has full effect.

There is a most marked distinction between the two treaties in one respect: by that of 1803, there was an out and out purchase of territory, to which the United States had no claim or pretension; both parties dealt at arms' length; there was nothing to compromise, no previous differences to settle; the subject of the cession was a province owned by France, in the plenitude of sovereignty, in propriety and dominion, in her actual possession as a government de facto and de jure, which she ceded to the United States for a specified money consideration. 27 U. S. 2 Pet. 303.

Another distinction is equally marked and prominent. In the Louisiana Treaty, there is no stipulation by the United States for the confirmation of grants of any description previously made by France or Spain, or any other security promised for private property, than the terms of the cession by the second article imply, by ceding "vacant lands, . . . which are not private property," and the stipulation in the third article, to incorporate the inhabitants in the Union as soon as possible, &c., and admitted to the enjoyment of the rights of citizens of the United States, and in the meantime be protected and maintained in the free enjoyment of their property 1 Laws of the United States 136. The reason of this distinction is obvious.

Though the Treaty of 1803 made no provision for a change of government, it was in the first instance to be temporary and territorial, under the sole power of Congress, in virtue of the third section, Fourth Article of the Constitution, and afterwards a state government, subject only to the same powers which Congress could exercise in the old states. 26 U. S. 1 Pet. 542; 34 U. S. 9 Pet. 234-236.

No change of government was contemplated or could be made by the treaty of 1819 except as to the territory east of the State of Alabama, as all westward to the Mississippi then formed a part of three states, and the incorporation thereof and the inhabitants into the Union was completely effected (in virtue of the Treaty of 1803) two years before the ratification of the Florida treaty. Vide 27 U. S. 2 Pet. 308-309, 27 U. S. 311-312. Hence arose the difference between the corresponding articles of the two treaties; that of 1819, in the sixth article, stipulating only for the incorporation of the inhabitants, &c., and their admission to the rights, &c., of citizens of the United States; omitting any stipulation as to property save by the eighth article, which was coextensive with the whole ceded territory east of the Mississippi, and superseded the necessity of any further stipulation to protect property, and the Constitution placed the government of the territory east of the Perdido in Congress, under the general powers conferred by the third section of the fourth article.

From the course of the political departments of the government

Page 39 U. S. 390

I now proceed to that of the judicial department on this and kindred subjects.

1. As to the Treaty of 1803, its construction, and effect on private property in Louisiana.

2. The decisions of this Court on claims to land east of the Perdido, under the treaty of 1819.

3. Decisions on claims to land in disputed territory under that and previous treaties.

4. The decisions on articles of capitulation, and treaties between the United States and foreign powers.

5. The decisions on compacts of boundary between state and state, and states with the United States.

6. How far questions of titles to land in a disputed territory are judicial.

On this as on the former branch of the subject, my object is to show

1. A perfect coincidence of opinion between all the departments of the government, on the subject of Spanish titles under the two treaties.

2. That if my opinion is at variance with that of this Court in 37 U. S. 12 Pet. 515, it arises from my entire concurrence with their declaration in that case that the treaty of 1819 finally settled the long subsisting controversy between the United States and Spain about the territory between the Perdido and the Mississippi.

3. That every principle of the case of @ 27 U. S. 2 Pet. 299, 27 U. S. 317 adverse to grants in the disputed territory has been since overruled.

4. That the principles of that case, which stand affirmed in all subsequent cases, give full validity to such grants.

5. That the case of Poole v. Fleeger has no bearing on the treaty of 1819, and

6. That any decision of this Court adverse to such grant, founded solely on the supposed authority of those two cases and at variance with a uniform course of adjudication before and after, may be deemed worthy of reconsideration.

1. In Soulard v. United States, this Court declared that the United States, as a just nation, regarded the stipulation of the third article of the Louisiana Treaty for the protection of the property of the inhabitants "as the avowal of a principle which would have been held equally sacred though it had not been inserted in the contract." 29 U. S. 4 Pet. 515, 35 U. S. 10 Pet. 330.

"That the term property,' as applied to lands, comprehends every species of title, inchoate or complete;" those rights which lie in contract, executory or executed. "In this respect the relation of the inhabitants to their government is not changed. The new government takes the place of that which has passed away." 29 U. S. 4 Pet. 512.

"This is the sentiment by which the government of the United States is animated, and which it has infused into its legislation." 29 U. S. 4 Pet. 512.

In alluding to this stipulation, the Court said in Delassus v. United States "that the perfect inviolability of property among these rights all will assert and maintain."

"The right of property then is protected and secure by this

Page 39 U. S. 391

treaty, and no principle is better settled in this country than that an inchoate title to lands is property."

34 U. S. 9 Pet. 133.

"Independent of treaty stipulation, this right would be held sacred."

"The language of the treaty excludes every idea of interfering with private property, of transferring lands which had been severed from the royal domain. The people change their sovereign. Their right to property remains unaffected by the change."

34 U. S. 9 Pet. 133.

In City of New Orleans v. De Armas, it was held that a patent from the United States pursuant to an act of Congress could not

"operate to destroy any previous existing title, vested under the preexisting government, as a principle applicable to every grant that it cannot affect preexisting titles."

34 U. S. 9 Pet. 236.

In United States v. Smith it is laid down as a settled principle by the Court that if the King had by his own or the acts of his lawful authorities become a trustee for the claimant of lands, it amounted to the severance thereof from the royal domains, 35 U. S. 10 Pet. 331, and that the United States has put itself in the place of Spain. 35 U. S. 10 Pet. 335.

In New Orleans v. United States, the effect of the Louisiana Treaty was most fully and ably considered by the Court in an unanimous opinion. The property in controversy was the quay in front of the city, which was claimed by the city by a dedication thereof to its use by France and by Spain. The United States claimed it as part of the royal domain, and as such ceded to them by the treaty, on which the Court thus spoke:

"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 it has a right to dispose of it the same as other public lands. But if the King of Spain held the land in trust for the use of the city, or only possessed a limited jurisdiction over it, principally if not exclusively for police purposes, was the right passed to the United States under the treaty?"

35 U. S. 10 Pet. 736.

This question is answered in the decision of the Court "that, in its opinion, neither the fee of the land in controversy nor the right to regulate its use is vested in the United States." 35 U. S. 10 Pet. 737.

2. As this opinion can neither require or receive any weight by any remarks of mine, I now proceed to notice the adjudications of this Court in cases arising under the Florida treaty in relation to the territory east of the Perdido, including East Florida.

The first was American Insurance Company v. Canter, in which the opinion of the Court is too important to be referred to otherwise than in its words:

"The course which the argument has taken will require that in deciding this question, the Court should take into view the relation in which Florida stands to the United States."

26 U. S. 1 Pet. 542.

"The Constitution confers absolutely on the government of the

Page 39 U. S. 392

Union the powers of making war and of making treaties; consequently that government possesses the power of acquiring territory either by conquest or by treaty."

"The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession or on such as its new master shall impose. On such transfer of territory, it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory. The same act which transfers their country transfers the allegiance of those who remain in it, and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the state."

"On 2 February, 1819, Spain ceded Florida to the United States. The sixth article of the treaty of cession contains the following provision:"

"The inhabitants of the territories which his Catholic Majesty cedes to the United States by this treaty shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the federal Constitution, and admitted to the enjoyment of the privileges, rights, and immunities of the citizens of the United States."

"This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition independent of stipulation. They do not, however, participate in politica

United States Supreme Court Cases & Opinions

Justia Legal Web Design US Court Forms Oyez US Supreme Court Multimedia

LESSEE OF POLLARD'S HEIRS V. KIBBE, 39 U. S. 353 (1840)

Case Resources

U.S. Supreme Court

Lessee of Pollard's Heirs v. Kibbe, 39 U.S. 14 Pet. 353 353 (1840)