Juan Percheman claimed two thousand acres of land lying in the
Territory of Florida by virtue of a grant from the Spanish governor
made in 1815. His title consisted of a petition presented by
himself to the Governor of East Florida, praying for a grant of two
thousand acres at a designated place in pursuance of the royal
order of 29 March, 1815, granting lands to the military who were in
St. Augustine during the invasion of 1812 and 1813; a decree by the
governor made 12 December, 1815, in conformity to the petition, in
absolute property, under the authority of the royal order, a
certified copy of which decree and of the petition was directed to
be issued to him from the secretary's offices in order that it may
be to him in all events an equivalent of a title in form; a
petition to the governor dated 31 December, 1815, for an order of
survey, and a certificate of a survey having been made on 20
August,
1819, in obedience to the same. This claim was presented,
according to law, to the Register and Receiver of East Florida,
while acting as a board of commissioners to ascertain claims and
titles to lands in East Florida. The claim was rejected by the
board, and the following entry made of the same:
"In the memorial of the claimant to this board, he speaks of a
survey made by"
authority in 1829. If this had been produced, it would have
furnished some
support for the certificate of Aguilar. As it is, we reject the
claim.
Held that this was not a final action on the claim in
"the sense those words are used in the Act of 26 May, 1830 entitled
An act supplementary to,'"
&c.
Even in cases of conquest, it is very unusual for the conqueror
to do more than to displace the sovereign and assume dominion over
the country.
The modern usage of nations, which has become law, would be
violated; that sense of justice and of right which is acknowledged
and felt by the whole civilized world would be outraged if private
property should be generally confiscated and private rights
annulled on a change in the sovereignty of the country. The people
change their allegiance, their relation to their ancient sovereign
is dissolved, but their relations to each other and their rights of
property remain undisturbed.
Had Florida changed its sovereign by an act containing no
stipulation respecting the property of individuals, the right of
property in all those who became subjects or citizens of the new
government would have been unaffected by the change. It would have
retrained the same as under the ancient sovereign.
The language of the second article of the Treaty between the
United States and Spain of 22 February, 1819, by which Florida was
ceded to the United States, conforms to this general principle.
The eighth article of the treaty must be intended to stipulate
expressly for
Page 32 U. S. 52
the security to private property which the laws and usages of
nations would, without express stipulation, have conferred. No
construction which would impair that security further than its
positive words require would seem to be admissible. Without it, the
titles of individuals would remain as valid under the new
government as they were under the old. And those titles, so far at
least as they were consummated, might be asserted in the courts of
the United States independently of this article.
The treaty was drawn up in the Spanish as well as in the English
languages. Both are original, and were unquestionably intended by
the parties to be identical. The Spanish has been translated, and
it is now understood that the article expressed in that language is
that "the grants shall retrain ratified and confirmed to the
persons in possession of them, to the same extent," &c., thus
conforming exactly to the universally received law of nations.
If the English and Spanish part can, without violence, be made
to agree, that construction which establishes this conformity ought
to prevail.
No violence is done to the language of the treaty by a
construction which conforms the English and Spanish to each other.
Although the words "shall be ratified and confirmed" are properly
words of contract, stipulating for some
future legislation, they are not necessarily so. They may import
that "they shall be ratified and confirmed" by force of the
instrument itself. When it is observed that in the counterpart of
the same treaty, executed at the same time, by the same parties,
they are used in this sense, the construction is proper, if not
unavoidable.
In the case of
Foster v.
Elam, 2 Pet. 253, this Court considered those words
importing a contract. The Spanish part of the treaty was not then
brought into view, and it was then supposed there was no variance
between them. It was not supposed that there was even a formal
difference of expression in the same instrument, drawn up in the
language of each party. Had this circumstance been known, it is
believed it would have produced the construction which it now given
to the article.
On 8 May, 1822, an act was passed "for ascertaining claims and
titles to land within the Territory of Florida." Congress did not
design to submit the validity of titles which were "valid under the
Spanish government or by the law of nations" to the determination
of the commissioners acting under this
law. It was necessary to ascertain these claims and to ascertain
their location, not to decide finally upon them. The powers to be
exercised by the commissioners ought to be limited to the object
and purpose of the act.
In all the acts passed upon this subject previous to May, 1830,
the decisions of the commissioners or of the register and receiver
acting as commissioners have been confirmed. Whether these acts
affirm those decisions by which claims are rejected, as well as
those by which they are recommended for confirmation, admits of
some doubt. Whether a rejection amounts to more than a refusal to
recommend for confirmation may be a subject of serious inquiry.
However this may be, it can admit of no doubt that the decision of
the commissioners was conclusive in no
Page 32 U. S. 53
case until confirmed by an act of Congress. The language of
these acts, and among others that of the act of 1828, would
indicate that the mind of Congress was directed solely to the
confirmation of claims, not to their annulment. The decision of
this question is not necessary to this case.
The Act of 26 May, 1830, entitled "An act to provide for the
final settlement of land claims in Florida," contains the action of
Congress on the report of the commissioners of 14 January, 1830, in
which is the rejection of the claim of the petitioner in this case.
The first, second and third sections of this act confirm the claims
recommended for confirmation by the commissioners. The fourth
section enacts
"That all remaining claims, which have been presented according
to law, and not finally acted upon, shall be adjudicated and
finally settled upon the same conditions,"
&c. It is apparent that no claim was finally acted upon
until it had been acted upon by Congress, and it is equally
apparent that the action of Congress in the report containing this
claim is confined to the confirmation of those titles which were
recommended for confirmation. Congress has not passed upon those
which were rejected. They were, of consequence, expressly submitted
to the court.
From the testimony in the case, it does not appear that the
Governor of Florida, under whose grant the land is claimed by the
petitioner, exceeded his authority in making the grant.
Papers translated from a foreign language respecting the
transactions of foreign officers with whose powers and authorities
the court are not well acquainted, containing uncertain and
incomplete references to things well understood by the parties but
not understood by the court, should be carefully examined before it
pronounces that an officer holding a high place of trust and
confidence has exceeded his authority.
On general principles of law, a copy of a paper given by a
public officer whose duty it is to keep the originals ought to be
received in evidence.
On 17 September, 1830, Juan Percheman filed in the clerk's
office of the Superior Court for the Eastern District of Florida a
petition, setting forth his claim to a tract of land containing two
thousand acres within the District of East Florida, situated at a
place called the Ockliwaha, along the margin of the River St.
John.
The petitioner stated that he derived his title to the said
tract of land under a grant made to him on 12 December, 1815, by
Governor Estrada, then Spanish Governor of East Florida, and whilst
East Florida belonged to Spain. The documents exhibiting the
alleged title annexed to the petition were the following:
Page 32 U. S. 54
"His Excellency the Governor: Don Juan Percheman, ensign of the
corps of dragoons of America, and stationed in this place, with due
veneration and respect appears before your Excellency and says that
in virtue of the bounty in lands which, pursuant to his royal order
of 29 March of the present year, the King grants to the military
which were of this place in the time of the invasion which took
place in the years 1812 and 1813, and your petitioner considering
himself as being comprehended in the said sovereign resolution, as
it is proved by the annexed certificates of his lordship Brigadier
Don Sebastian Kindelan, and by that which your lordship thought
proper to provide herewith, which certificates express the merits
and services rendered by your petitioner at the time of the siege,
in consequence of which said bounties were granted to those who
deserved them, and which said certificates your petitioner solicits
from your goodness may be returned to him for any other purposes
which may be useful to your petitioner; therefore he most
respectfully supplicates your lordship to grant him two thousand
acres of land in the place called Ockliwaha, situated on the margin
of St. John's River, which favor he doubts not to receive from your
good heart and paternal dispositions. St. Augustine of Florida, 8
December, 1815."
"JUAN PERCHEMAN"
"St. Augustine of Florida, 12 December, 1815. Whereas, this
officer, the party interested, by the two certificates enclosed and
which will be returned to him for the purposes which may be
convenient to him, has proved the services which he rendered in the
defense of this province, and in consideration also of what is
provided in the royal order of 29 March last past, which he cites,
I do grant him the two thousand acres of land which he solicits, in
absolute property in the indicated place, to which effect let a
certified copy of this petition and decree be issued to him from
the secretary's office in order that it may be to him, in all
events, an equivalent of a title in form."
"ESTRADA"
"PETITION. His Excellency the Governor:"
"Don Juan Percheman, sergeant of the squadron of dragoons of
America, stationed in this place, with due veneration and respect,
appears before your Excellency, and says that in virtue of the
royal
Page 32 U. S. 55
bounties in lands, granted by his Majesty, by his royal order of
29 March of the present year, to the military individuals who were
in this place aforesaid, in the time of the invasion thereof, in
the years 1812 and 1813, and your petitioner considering himself as
included in the said royal resolution, as he proves it by the
annexed certificates, exhibited with due solemnity, one of them
from the Brigadier Don Sebastian Kindelan, and the other with which
your Excellency thought proper to provide him, which certificates
express the merits and services which he acquired and rendered in
the time and epochs of the siege, in consequence of which the
meritorious were thus rewarded, and which certificates your
Excellency will be pleased to return to your petitioner, for other
purposes which may be useful to him, wherefore, your petitioner
most respectfully supplicates your Excellency to be pleased to
grant him two thousand acres of land, in the place called
Ockliwaha, situated on the margins of the River St. John, which
favor he doubts not to receive from the benevolent and charitable
dispositions of your Excellency. St. Augustine of Florida, on 8
December, 1815."
"JUAN PERCHEMAN"
"DECREE. St. Augustine of Florida, on 12 December, 1815.
Whereas, this officer interested proves by the two certificates
annexed, and which will be returned to him for such purposes as may
suit him, the services which he has rendered in the defense of this
province, and also in consideration of the provisions of the royal
order, under date 29 March last, which is referred to, I do grant
to him in absolute property the two thousand acres of land in the
place which he indicates, for the attainment of which, let a
certified copy of this petition and decree be issued to him, which
documents will at all events serve him as a title in form."
"ESTRADA"
"I, Don Tomas de Aguilar, under-lieutenant of the army, and
secretary for his Majesty of the government of this place, and of
the province thereof, do certify that the preceding copy is
faithfully drawn from the original, which exists in the secretary's
office under my charge, and in obedience to what is
Page 32 U. S. 56
ordered, I give the present, in St. Augustine of Florida, on 12
December, 1815."
"TOMAS DE AGUILAR"
"PETITION FOR SURVEY. His Excellency the governor:"
"Don Juan Percheman, ensign of the corps or dragoons and
commandant of the detachment of the same stationed in this place,
with due respect represents to your Excellency that this government
having granted your petitioner two thousand acres of land in the
place called Ockliwaha, on the margin of the River St. John, he may
be permitted to have the same surveyed by a competent surveyor as
soon and at any time your petitioner will find it convenient, which
favor your petitioner hopes to receive from the high consideration
of your Excellency. St. Augustine of Florida, on 31 December,
1815."
"JUAN PERCHEMAN"
"St. Augustine, 31 December 1815. The preceding petition is
granted."
"ESTRADA"
I, Don Robert McHardy, an inhabitant of this province, and
appointed surveyor, by decree of this government, rendered on the
31st December 1815 in behalf of the interested party, do certify,
that I have surveyed for Don Juan Percheman, lieutenant of the
Havana dragoons, a tract of land containing two thousand acres,
situated on the south side of Ockliwaha, and is conformable in all
its circumstances to the following plat. In testimony whereof, I
sign the present, in St. Augustine of Florida, on the 20th of
August 1819.
"R'T McHARDY"
The petitioner proceeds to state that his claim to said tract of
land so claimed by him was submitted to the examination of the
board of commissioners appointed under and in virtue of an act of
the Congress of the United States of America entitled "An act for
ascertaining claims and titles to lands in the Territory of
Florida, and to provide for the survey and disposal of the public
lands in Florida," passed 3 March, 1823. And that the land so
claimed by him, and situated as aforesaid within the Territory of
Florida and within the jurisdiction
Page 32 U. S. 57
of this Honorable Court, as aforesaid, was embraced by the
Treaty between Spain and the United States of 22 February, 1819;
that his claim to said land had not been finally settled under the
provisions of the Act of the Congress of the United States entitled
"An act supplementary to the several acts providing for the
settlement and confirmation of private land claims in Florida,"
passed 23 May, 1828, or of any of the acts to which the said
last-recited act is supplementary, and that the claim of the
petitioner to the said land had not been reported by the said
commissioners appointed under any of the said acts of Congress or
any other, or by the register and receiver acting as such under the
several acts of the Congress of the United States in such case made
and provided, as antedated or forged, and that the said claim had
not been annulled by the aforesaid treaty between Spain and the
United States, nor by the decree ratifying the same. Wherefore he
prayed that the validity of his claim to said land might be
inquired into and decided upon by the court and that, in pursuance
of an act of Congress for that purpose, in that case made and
provided, the United States be made a party defendant to this
petition, and that process, &c.
On the 2d of October, the attorney of the United States for the
District of East Florida filed an answer to the petition of Juan
Percheman in which it is stated that on 28 November, 1823, he, the
said Juan Percheman, sold, transferred and conveyed to one Francis
P. Sanchez all his right, title, and interest in the tract of land
claimed by him, which, the answer asserted, appeared by a copy of
the conveyance annexed to the action, and that he had not, at the
time of the filing of his petition, any right, title, or interest
in the land. The answer admitted that the claim of the said Francis
P. Sanchez to the said tract of land was duly presented to the
register and receiver of the district while they were acting as a
board of commissioners to ascertain titles to land in East Florida,
and averred that the said claim was finally acted upon and rejected
by the said register and receiver, while lawfully acting as
aforesaid, as appeared by a copy of their report thereon annexed to
the answer. The United States further said that the tract of land
claimed
Page 32 U. S. 58
by the petitioner contains a less quantity than 3,500 acres,
to-wit, but 2,000 acres, by the showing of the petitioner himself,
and that the court had no jurisdiction in the case, nor could any
court exercise jurisdiction over the claim against the United
States. The answer submitted that if the Governor Estrada did make
the grant or concession set forth by the petitioner at the time
"and in the manner alleged in the said petition of bill of
complaint, he made it contrary to the laws, ordinances, and royal
regulations of the government of Spain which were then in force in
East Florida on the subject of granting lands, and without any
power or authority to do so, and that the said grant was therefore
null and void, and that the right and title to said tract of land
consequently vested in the said United States, as will more fully
appear by reference to the laws, ordinances, and royal regulations
aforesaid."
The proceedings of the register and receiver on the claim of
Francis P. Sanchez, referred to in the answer, were as follows:
"This is a certificate of Thomas de Aguilar that in December,
1815, Estrada granted Don Juan Percheman, cornet of squadron of
dragoons, for services, two thousand acres of land at a place
called Ockliwaha, on the St. John's River. In 1819, Percheman sold
to Sanchez. In the memorial of the claimant to this board, he
speaks of a survey made by authority in 1819. If this had been
produced, it would have furnished some support to the certificate
of Aguilar. As it is, we reject the claim."
The petitioner, by an amended petition, filed on t14 December,
1830, stated, that the Register and Receiver of the United States
for East Florida, in their final report on the land claims,
transmitted on 12 December, 1828, to the Secretary of the Treasury,
reported the claim of the petitioner as rejected on the ground that
the claim depended on a certificate only of Don Thomas Aguilar,
notary of the Spanish government in East Florida, and he averred
that his claim depended on an original grant on file in the Office
of the Public Archives of East Florida, a certified copy of which
was filed with the petition in the court, dated 8 December,
1815.
The amended petition also stated that the sale made by him
Page 32 U. S. 59
of the tract of land described in the original petition was a
conditional sale, and no more. It also stated that the register and
receiver further reported that the survey of the tract of land,
made by the authority of the Spanish government, was not produced
to them, but the petitioner averred the contrary, for that the
survey was filed with the claim, and was before them when they
examined the same; for the truth of which averment, a certificate
from the keeper of the office of archives was filed with the
amended petition.
On the hearing of the case before the Supreme Court for the
District of East Florida, the claimant, by his counsel, offered in
evidence a copy from the Office of the Keeper of Public Archives of
the original grant on which this claim was founded, to the
receiving of which in evidence the said attorney for the United
States objected, alleging that the original grant itself should be
produced and its execution proved before it could be admitted in
evidence, and that the original only could be received in evidence,
which objection, after argument from the counsel, was overruled by
the court, and the copy from the Office of the Keeper of the Public
Archives, certified according to law, was ordered to be received in
evidence. And the court further ordered that though, by the express
statute of this territory, copies are to be received in evidence,
yet, in cases where either the claimant or the United States shall
suggest that the original in the Office of the Keeper of the Public
Archives is deemed necessary to be produced in court, on motion
therefor, a subpoena will be issued by order of the court to the
said keeper to appear and produce the said original in court for
due examination there.
The court proceeded to a decree in the case and adjudged that
the claim of the petitioner as presented was within its
jurisdiction --
"that the grant is valid, that it ought to be, and by virtue of
the statute of 26 May, 1830, and of the late treaty between the
United States and Spain, it is confirmed."
The United States appealed to this Court.
Page 32 U. S. 82
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is an appeal from a decree pronounced by the Judge of the
Superior Court for the District of East Florida confirming the
title of the appellee to 2,000 acres of land lying in that
territory which he claimed by virtue of a grant from the Spanish
governor made in December, 1815. The title laid before the district
court by the petitioner consists of a petition presented by himself
to the Governor of East Florida, praying for a grant of 2,000 acres
of land in the place called Ockliwaha, situated on the margin of
St. John's River, which
Page 32 U. S. 83
he prays for in pursuance of the royal order of 29 March, 1815,
granting lands to the military who were in St. Augustine, during
the invasion in the years 1812 and 1813, to which the following
grant is attached.
"St. Augustine of Florida, 12th of December 1815. Whereas this
officer, the party interested, by the two certificates enclosed and
which will be returned to him for the purposes which may be
convenient to him, has proved the services which he rendered in
defense of this province, and in consideration also of what is
provided in the royal order of 29 March last past, which he cites,
I do grant him the two thousand acres of land which he solicits in
absolute property in the indicated place, to which effect let a
certified copy of this petition and decree be issued to him from
the secretary's office in order that it may be to him in all events
an equivalent of a title in form."
"ESTRADA"
In a copy of the grant certified by Thomas de Aguilar, secretary
of his Majesty's government, the words "which documents will at all
events serve him as a title in form" are employed instead of the
words "in order that it may be to him in all events an equivalent
of a title in form."
The petitioner also filed his petition to the governor for an
order of survey, dated 31f December, 1815, which was granted on the
same day, and a certificate of Robert McHardy, the surveyor, dated
20 August, 1813, that the survey had been made.
The attorney of the United States for the district, in his
answer to this petition, states that on 28 November, 1823, the
petitioner sold and conveyed his right in and to the said tract of
land to Francis P. Sanchez, as will appear by the deed of
conveyance to which he refers; that the claim was presented by the
said Francis P. Sanchez to the register and receiver, while acting
as a board of commissioners to ascertain claims and titles to land
in East Florida, and was finally acted upon and rejected by them,
as appears by a copy of their report thereon. As the tract claimed
by the petitioner contains less than 3,500 acres of land and had
been rejected by the register and receiver acting as a board of
Page 32 U. S. 84
commissioners, the attorney contended that the court had no
jurisdiction of the case.
At the trial, the counsel for the claimant offered in evidence a
copy from the office of the keeper of public archives of the
original grant on which the claim was founded, to the receiving of
which in evidence the attorney for the United States objected,
alleging that the original grant itself should be procured and its
execution proved. This objection was overruled by the court, and
the copy from the Office of the Keeper of the Public Archives,
certified according to law, was admitted. The attorney for the
United States excepted to this opinion.
It appears from the words of the grant that the original was not
in possession of the grantee. The decree which constitutes the
title appears to be addressed to the officer of the government
whose duty it was to keep the originals and to issue a copy. Its
language, after granting in absolute property, is
"for the attainment of which let a certified copy of this
petition and decree be issued to him for the secretary's office, in
order that it may be to him in all events equivalent to a title is
form."
This copy is, in contemplation of law, an original. It appears,
too, from the opinion of the judge "that by an express statute of
the territory, copies are to be received in evidence." The judge
added that
"Where either party shall suggest that the original in the
Office of the Keeper of the Public Archives is deemed necessary to
be produced in court, on motion therefor, a subpoena will be issued
by order of the court to the said keeper to appear and produce the
said original for examination."
The act of 26 May, 1824,
"enabling the claimants of lands within the limits of the State
of Missouri and Territory of Arkansas to institute proceedings to
try the validity of their claims,"
in its fourth section, makes it the duty of
"the keeper of any public records who may have possession of the
records and evidence of the different tribunals which have been
constituted by law for the adjustment of land titles in Missouri,
as held by France, upon the application of any person or persons
whose claims to lands have been rejected by such tribunals, or
either of them, or on the application of any person interested,
Page 32 U. S. 85
or by the attorney of the United States for the District of
Missouri, to furnish copies of such evidence, certified under his
official signature, with the seal of office thereto annexed, if
there be a seal of office."
The act of 23 May, 1828, supplementary to the several acts
providing for the settlement and confirmation of private land
claims in Florida, declares, in its sixth section that certain
claims to lands in Florida which have not been decided and finally
settled
"shall be received and adjudicated by the judge of the superior
court of the district within which the land lies, upon the petition
of the claimant, according to the forms, rules, regulations,
conditions, restrictions and limitations prescribed by [for] the
district and claimants in the State of Missouri, by act of Congress
approved May 26, 1824, entitled, 'an act enabling the
claimants,'"
&c. The copies directed by the act of 1824 would undoubtedly
have been receivable in evidence on the trial of claims to lands in
Missouri. Every reason which could operate with Congress for
applying this rule of evidence to the courts of Missouri operates
with equal force for applying it to the courts of Florida, and a
liberal construction of the Act of May 23, 1828, admits of this
application. The fourth section of the Act of May 26, 1830, "to
provide for the final settlement of land claims in Florida" adopts,
almost in words, the provision which has been cited from the sixth
section of the Act of May 23, 1828. Whether these acts be or be not
construed to authorize the admission of the copies offered in this
cause, we think that on general principles of law, a copy given by
a public officer whose duty it is to keep the original ought to be
received in evidence. We are all satisfied that the opinion was
perfectly correct and that the copies ought to have been
admitted.
We proceed, then, to examine the decree which was pronounced
confirming the title of the petitioner. The general jurisdiction of
the courts not extending to suits against the United States, the
power of the Superior Court for the District of East Florida to act
upon the claim of the petitioner, Percheman, in the form in which
it was presented must be specially conferred by statute. It is
conferred, if at all, by
Page 32 U. S. 86
the Act of 26 May, 1830, entitled "An act to provide for the
final settlement of land claims in Florida." The fourth section of
that act enacts
"That all the remaining claims which have been presented
according to law and not finally acted upon shall be adjudicated
and finally settled upon the same conditions, restrictions, and
limitations in every respect as are prescribed by the Act of
Congress approved 23 May, 1828, entitled 'An act
supplementary,'"
&c.
The claim of the petitioner, it is admitted, "had been presented
according to law," but the attorney for the United States contended
that "it had been finally acted upon." The jurisdiction of the
court depends on the correctness of the allegation. In support of
it, the attorney for the United States produced an extract from the
books of the register and receiver, acting as commissioners to
ascertain claims and titles to land in East Florida, from which it
appears that this claim was presented by Francis P. Sanchez,
assignee of the petitioner, on which the following entry was
made.
"In the memorial of the claimant to this board, he speaks of a
survey made by authority in 1819; if this had been produced, it
would have furnished some support for the certificate of Aguilar;
as it is, we reject the claim."
Is this rejection a final action on the claim in the sense in
which those words are used in the Act of 26 May, 1830?
In pursuing this inquiry in endeavoring to ascertain the
intention of Congress, it may not be improper to review the acts
which have passed on the subject in connection with the actual
situation of the person to whom those acts relate. Florida was a
colony of Spain the acquisition of which by the United States was
extremely desirable. It was ceded by a treaty concluded between the
two powers at Washington on 22 February, 1819. The second article
contains the cession and enumerates its objects. The eighth
contains stipulations respecting the titles to lands in the ceded
territory.
It may not be unworthy of remark that it is very unusual, even
in cases of conquest, for the conqueror to do more than to displace
the sovereign and assume dominion over the country. The modern
usage of nations, which has become law,
Page 32 U. S. 87
would be violated; that sense of justice and of right which is
acknowledged and felt by the whole civilized world would be
outraged if private property should be generally confiscated and
private rights annulled. The people change their allegiance; their
relation to their ancient sovereign is dissolved; but their
relations to each other and their rights of property, remain
undisturbed. If this be the modern rule even in cases of conquest,
who can doubt its application to the case of an amicable cession of
territory? Had Florida changed its sovereign by an act containing
no stipulation respecting the property of individuals, the right of
property in all those who became subjects or citizens of the new
government would have been unaffected by the change; it would have
remained the same as under the ancient sovereign. The language of
the second article conforms to this general principle:
"His Catholic Majesty cedes to the United States in full
property and sovereignty all the territories which belong to him,
situated to the eastward of the Mississippi by the name of East and
West Florida."
A cession of territory is never understood to be a cession of
the property belonging to its inhabitants. The King cedes that only
which belonged to him; lands he had previously granted were not his
to cede. Neither party could so understand the cession; neither
party could consider itself as attempting a wrong to individuals
condemned by the practice of the whole civilized world. The cession
of a territory by its name from one sovereign to another, conveying
the compound idea of surrendering at the same time the lands and
the people who inhabit them, would be necessarily understood to
pass the sovereignty only, and not to interfere with private
property. If this could be doubted, the doubt would be removed by
the particular enumeration which follows:
"The adjacent islands dependent on said provinces, all public
lots and squares, vacant lands, public edifices, fortifications,
barracks and other building which are not private property,
archives and documents which relate directly to the property and
sovereignty of the said provinces, are included in this
article."
This special enumeration could not have been made had the first
clause of the article been supposed to pass not only the objects
thus enumerated, but private property also. The grant
Page 32 U. S. 88
of buildings could not have been limited by the words "which are
not private property" had private property been included in the
cession of the territory.
This state of things ought to be kept in view when we construe
the eighth article of the treaty, and the acts which have been
passed by Congress for the ascertainment and adjustment of titles
acquired under the Spanish government. That article, in the English
part of it, is in these words:
"All the grants of land made before 24 January, 1818, by his
Catholic Majesty or by his lawful authorities in the said
territories ceded by his Majesty to the United States shall be
ratified and confirmed to the persons in possession of the lands to
the same extent that the same grants would be valid if the
territories had remained under the dominion of his Catholic
Majesty."
This article is apparently introduced on the part of Spain, and
must be intended to stipulate expressly for that security to
private property which the laws and usages of nations would,
without express stipulation, have conferred. No construction which
would impair that security further than its positive words require
would seem to be admissible. Without it, the titles of individuals
would remain as valid under the new government as they were under
the old, and those titles, so far at least as they were consummate,
might be asserted in the courts of the United States independently
of this article.
The treaty was drawn up in the Spanish as well as in the English
language; both are originals, and were unquestionably intended by
the parties to be identical. The Spanish has been translated, and
we now understand that the article, as expressed in that language,
is that the grants "shall remain ratified and confirmed to the
person in possession of them to the same extent," &c. -- thus
conforming exactly to the universally received doctrine of the law
of nations. If the English and the Spanish parts can, without
violence, be made to agree, that construction which establishes
this conformity ought to prevail. If, as we think must be admitted,
the security of private property was intended by the parties, if
this security would have been complete without the article, the
United States could have no motive for insisting on the
interposition of government in order to give validity to titles
which, according
Page 32 U. S. 89
to the usages of the civilized world, were already valid. No
violence is done to the language of the treaty by a construction
which conforms the English and Spanish to each other. Although the
words "shall be ratified and confirmed" are properly the words of
contract stipulating for some future legislative act, they are not
necessarily so. They may import that they "shall be ratified and
confirmed" by force of the instrument itself. When we observe that
in the counterpart of the same treaty, executed at the same time by
the same parties, they are used in this sense, we think the
construction proper, if not unavoidable. In the case of
Foster v.
Neilson, 2 Pet. 253, this Court considered these
words as importing contract. The Spanish part of the treaty was not
then brought to our view, and we then supposed that there was no
variance between them. We did not suppose that there was even a
formal difference of expression in the same instrument drawn up in
the language of each party. Had this circumstance been known, we
believe it would have produced the construction which we now give
to the article.
This understanding of the article must enter into our
construction of the acts of Congress on the subject. The United
States had acquired a territory containing near thirty millions of
acres, of which about three millions had probably been granted to
individuals. The demands of the Treasury and the settlement of the
territory required that the vacant lands should be brought into the
market, for which purpose the operations of the land office were to
be extended into Florida. The necessity of distinguishing the
vacant from the appropriated lands was obvious, and this could be
effected only by adopting means to search out and ascertain
preexisting titles. This seems to have been the object of the first
legislation of Congress. On 8 May, 1822, an act was passed, "for
ascertaining claims and titles to land within the Territory of
Florida." The first section directs the appointment of
commissioners for the purpose of ascertaining the claims and titles
to lands within the Territory of Florida, as acquired by the Treaty
of 22 February, 1819.
Page 32 U. S. 90
It would seem from the title of the act and from this
declaratory section that the object for which these commissioners
were appointed was the ascertainment of these claims and titles;
that they constituted a board of inquiry, not a court exercising
judicial power and deciding finally on titles. By the act "for the
establishment of a territorial government in Florida," previously
passed at the same session, superior courts had been establish in
East and West Florida whose jurisdiction extended to the trial of
civil causes between individuals. These commissioners seem to have
been appointed for the special purpose of procuring promptly for
Congress that information which was required for the immediate
operations of the land office. In pursuance of this idea, the
second section directs that all the proceedings of the
commissioners, the claims admitted with those rejected and the
reason of their admission and rejection be recorded in a well bound
book and forwarded to the Secretary of the Treasury, to be
submitted to Congress. To this desire for immediate information we
must ascribe the short duration of the board. Its session for East
Florida was to terminate on the last of June in the succeeding
year, but any claims not filed previous to 31 May in that year to
be void and of no effect.
These provisions show the solicitude of Congress to obtain with
the utmost celerity that information which ought to be preliminary
to the sale of the public lands. The provision that claims not
filed with the commissioners previous to 30 June, 1823, should be
void can mean only that they should be held so by the
commissioners, and not allowed by them. Their power should not
extend to claims filed afterwards. It is impossible to suppose that
Congress intended to forfeit real titles not exhibited to their
commissioners within so short a period.
The principal object of this act is further illustrated by the
sixth section, which directed the appointment of a surveyor who
should survey the country, taking care to have surveyed and marked
and laid down upon a general plan to be kept in his office the
metes and bounds of the claims admitted.
The fourth section might seem in its language to invest the
commissioners with judicial powers and to enable them to
Page 32 U. S. 91
decide as a court in the first instance for or against the title
in cases brought before them, and to make such decision final if
approved by Congress. It directs that the "said commissioners shall
proceed to examine and determine on the validity of said patents,"
&c. If, however, the preceding part of the section to which
this clause refers be considered, we shall find in it almost
conclusive reason for the opinion that the examination and
determination they were to make had relation to the purpose of the
act, to the purpose of quieting speedily those whose titles were
free from objection and procuring that information which was
necessary for the safe operation of the land office, not for the
ultimate decision which, if adverse, should bind the proprietor.
The part of the section describing the claims into the validity of
which the commissioners were to examine, and on which they were to
determine, enacts that every person, &c., claiming title to
lands under any patent, &c.,
"which were valid under the Spanish government or by the law of
nations and which are not rejected by the treaty ceding the
Territory of East and West Florida to the United States, shall
file"
&c. Is it possible that Congress could design to submit the
validity of titles, which were "valid under the Spanish government
or by the law of nations" to the determination of these
commissioners? It was necessary to ascertain these claims and to
ascertain their location, not to decide finally upon them. The
powers to be exercised by the commissioners under these words ought
therefore to be limited to the object and purpose of the act. The
fifth section, in its terms, enables them only to examine into and
confirm the claims before them. They were authorized to confirm
those claims only which did not exceed one thousand acres.
From this review of the original act, it results we think that
the object for which this board of commissioners was appointed was
to examine into and report to Congress such claims as ought to be
confirmed, and their refusal to report a claim for confirmation,
whether expressed by the term "rejected" or in any other manner, is
not to be considered as a final judicial
Page 32 U. S. 92
decision on the claim, binding the title of the party, but as a
rejection for the purposes of the act. This idea is strongly
supported by a consideration of the manner in which the
commissioners proceeded and by an examination of the proceedings
themselves, as exhibited in the reports to Congress. The
commissioners do not appear to have proceeded with open doors,
deriving aid from the argument of counsel, as is the usage of a
judicial tribunal deciding finally on the rights of parties, but to
have pursued their inquiries like a board of commissioners, making
those preliminary inquiries which would enable the government to
open its land office, whose inquiries would enable the government
to ascertain the great bulk of titles which were to be confirmed,
not to decide ultimately on the titles which those who had become
American citizens legally possessed.
On 3 March, 1823, Congress passed a supplementary act which also
provided for the survey and disposal of the public lands in East
Florida. It authorizes the appointment of a separate board of
commissioners for East Florida, and empowers the commissioners to
continue their sessions until the second Monday in the succeeding
February, when they were to return their proceedings to the
Secretary of the Treasury. This act dispenses with the necessity of
deducing title from the original grantee, and authorizes the
commissioners to decide on the validity of all claims derived from
the Spanish government in favor of actual settlers where the
quantity claimed does not exceed 3,500 acres. The act "to extend
the time for the settlement of private land claims in the Territory
of Florida," passed on 28 February, 1824, enacts that no person
shall be deemed an actual settler
"unless such person or those under whom he claims title shall
have been in the cultivation or occupation of the land at and
before the period of the cession."
On 8 February, 1827, Congress passed an act extending the time
for receiving private land claims in Florida and directing them to
be filed on or before the 1st day of the following November with
the register and receiver of the
Page 32 U. S. 93
district, "whose duty it shall be to report the same, with their
decision thereon" on or before 1 January, 1828, to be laid before
Congress at the next session. These acts are not understood to vary
the powers and duties of the tribunals authorized to settle and
confirm these private land claims.
On 23 May, 1828, an act passed supplementary to the several acts
providing for the settlement and confirmation of private land
claims in Florida. This act continues the power of the register and
receiver till the first Monday in the following December, when they
are to make a final report, after which it shall not be lawful for
any of the claimants to exhibit any further evidence in support of
their claims. The sixth section of this act transfers to the court
all claims
"which shall not be decided and finally settled under the
foregoing provisions of this act, containing a greater quantity of
land than the commissioners were authorized to decide, and above
the amount confirmed by this act, and which have not been reported
as antedated or forged,"
and declares, that they "shall be received and adjudicated by
the judge of the district court in which the land lies, upon the
petition of the claimant, according to the forms," &c.,
"prescribed," &c., by act of Congress approved May 26, 1824,
entitled "An act enabling the claimants to land within the limits
of the State of Missouri and Territory of Arkansas to institute
proceedings," &c. A proviso excepts from the jurisdiction of
the court any claim annulled by the treaty or decree of
ratification by the King of Spain or any claim not presented to the
commissioners or register and receiver. The 13th section enacts
that the decrees which may be rendered by the district or supreme
court "shall be conclusive between the United States and the said
claimants only, and shall not affect the interests of third
persons."
In all the acts passed upon this subject previous to that of
May, 1830, the decisions of the commissioners, or of the register
and receiver acting as commissioners, have been confirmed. Whether
these acts affirm those decisions by which claims are rejected, as
well as those by which they are recommended for confirmation,
admits of some doubt; whether a rejection
Page 32 U. S. 94
amounts to more than a refusal to recommend for confirmation may
be a subject for serious inquiry; however this may be, we think it
can admit of no doubt that the decision of the commissioners was
conclusive in no case until confirmed by an act of Congress. The
language of these acts, and among others, that of the act of 1828,
would indicate that the mind of Congress was directed solely to the
confirmation of claims, not to their annulment. The decision of
this question is not necessary to this case. The claim of the
petitioner was not contained in any one of the reports which have
been stated.
On 26 May, 1830, Congress passed "an act to provide for the
final settlement of land claims in Florida." This act contains the
action of Congress on the report of 14 January, 1830, which
contains the rejection of the claim in question. The first section
confirm all the claims and titles to land filed before the register
and receiver of the land office, under one league square, which
have been decided and recommended for confirmation. The second
section confirms all the conflicting Spanish claims, recommended
for confirmation as valid titles. The third confirms certain claims
derived from the former British government and which have been
recommended for confirmation. The fourth enacts
"that all remaining claims which have been presented according
to law and not finally acted upon shall be adjudicated and finally
settled upon the same conditions,"
&c.
It is apparent that no claim was finally acted upon until it had
been acted upon by Congress, and it is equally apparent that the
action of Congress on the report containing this claim is confined
to the confirmation of those titles which were recommended for
confirmation. Congress has not passed on those which were rejected;
they were, of consequence, expressly submitted to the court. The
decision of the register and receiver could not be conclusive for
another reason. Their power to decide did not extend to claims
exceeding one thousand acres unless the claimant was an actual
settler, and it is not pretended that either the petitioner or
Francisco de Sanchez, his assignee,
Page 32 U. S. 95
was a settler, as described in the third section of the act of
1824. The rejection of this claim, then, by the register and
receiver did not withdraw it from the jurisdiction of the court nor
constitute any bar to a judgment on the case according to its
merits.
An objection not noticed in the decree of the territorial court
has been urged by the Attorney General and is entitled to serious
consideration. The governor, it is said, was empowered by the royal
order on which the grant professes to be founded to allow to each
person the quantity of land established by regulation in the
province agreeable to the number of persons composing each family.
The presumption arising from the grant itself of a right to make it
is not directly controverted, but the attorney insists that the
documents themselves prove that the governor has exceeded his
authority.
Papers translated from a foreign language respecting the
transactions of foreign officers with whose powers and authorities
we are not well acquainted, containing uncertain and incomplete
references to things well understood by the parties but not
understood by the court, should be carefully examined before we
pronounce that an officer holding a high place of trust and
confidence has exceeded his authority. The objection rests on the
assumption that the grant to the petitioner is founded entirely on
the allowance made in the royal order of 29 March, 1815, at the
request of the Governor of East Florida, and the petition to the
governor undoubtedly affords strong ground for this assumption; but
we are far from thinking it conclusive. The petitioner says
"That in virtue of the bounty in lands which, pursuant to his
royal order of 29 March of the present year, the King grants to the
military who were in this place at the time of the invasion which
took place in the years 1812 and 1813, and your petitioner
considering himself as being comprehended in the said sovereign
resolution, as it is proved by the annexed certificates of his
lordship, Brigadier Don Sebastian Kindelan, and by that which your
lordship thought proper to provide herewith, which certificates
express the merits and services
Page 32 U. S. 96
rendered by your petitioner at the time of the siege, in
consequence of which said bounties were granted to those who
deserved them, . . . therefore he most respectfully supplicates
your lordship to grant him two thousand acres of land in the
place,"
&c. The governor granted the two thousand acres of land for
which the petitioner prays.
The attorney contends that the royal order of 29 March, 1815,
empowered the governor to grant so much land only as according to
the established rules was allowed to each settler. This did not
exceed one hundred acres to the head of a family and a smaller
portion for each member of it. The extraordinary facts that an
application for two thousand acres should be founded on an express
power to grant only one hundred, that this application should be
accompanied by no explanation whatever, and that the grant should
be made without hesitation, as an ordinary exercise of legitimate
authority, are circumstances well calculated to excite some doubt
whether the real character of the transaction is understood and to
suggest the propriety of further examination. The royal order is
founded on a letter from Governor Kindelan to the captain general
of Cuba, in which he recommends the militia as worthy the gifts to
which the supreme governor may think them entitled,
"taking the liberty of recommending the granting of some, which
may be as follows: to each officer who has been in actual service
in said militia, a royal commission for each grade he may obtain as
provincial, and to the soldiers a certain quantity of land as
established by regulation in this province, agreeably to the number
of persons composing each family, and which gifts can also be
exclusively made to the married officers and soldiers of the said
third battalion of Cuba."
The words "and which gifts" &c. in the concluding part of
the sentence would seem to refer to that part which asks lands for
the soldiers of the militia, and yet it is unusual in land bounties
for military service to bestow the same quantity on the officers as
on the soldiers. But be this as it may, the application of Governor
Kindelan is confined to the privates who served in the militia and
to the married officers and soldiers of the third battalion of
Cuba.
Page 32 U. S. 97
The petitioner was in neither of these corps; he was an ensign
of the corps of dragoons.
The royal order alluded to, is contained in a letter of 29
March, 1815, from the minister of the Indies, who, after stating
the application in favor of the militia and the third regiment of
Cuba, adds
"At the same time that his Majesty approves said gifts, he
desires that your Excellency will inform him as to the reward which
the commandant of the third battalion of Cuba, Don Juan Jose de
Estrada, who acted as governor
pro tem. at the
commencement of the rebellion, the officers of artillery, Don
Ignacia Salus, Don Manuel Paulin, and of dragoons, Don Juan
Percheman, are entitled to, as mentioned by the governor in his
official letter. By royal order, I communicate the same to his
Excellency for your information and compliance therewith, enclosing
the royal commissions of local militia, according to the note
forwarded by your Excellency."
The governor adds,
"I forward you a copy of the same, enclosing also the documents
above mentioned, that you may give their correspondent direction,
with the intention, by the first opportunity, of informing his
Majesty of what I consider just as to the remuneration before
mentioned."
It appears, then, that the part of the royal order which is
supposed to limit this power of the governor to grants of one
hundred acres does not comprehend the petitioner; that he is
mentioned in that order as a person entitled to the royal bounty,
the extent of which is not fixed, and respecting which the governor
intended to inform his Majesty. The royal order, then, is referred
to in the petition as showing the favorable intentions of the Crown
towards the petitioner, not as ascertaining limits applying to him
which the governor could not transcend. The petition also refers to
certificates granted by General Kindelan and the governor himself
expressing his merits and services during the siege. These could
have no influence if the amount of the grant was fixed. In his
grant, annexed to the petition, the governor says,
"Whereas this officer, the party interested by the two
certificates enclosed, has proved the services which he rendered in
defense of
Page 32 U. S. 98
this province, and in consideration also of what is provided in
the royal order of 29 March last past, which he cites, I do grant
him,"
&c. Military service, then, is the foundation of the grant,
and the royal order is referred to only as showing that the
favorable attention the King had been directed to the petitioner.
The record furnishes other reasons for the opinion that the power
of the governor was not so limited in this case as is supposed by
the attorney for the United States.
The objection does not appear to have been made in the
territorial court, where the subject must have been understood. It
was neither raised by the attorney for the United States nor
noticed by the court. The register and receiver, before whom the
claim was laid by Sanchez, the assignee of the present petitioner,
did not reject it because the governor had exceeded his power in
making it, but because the survey was not exhibited. "If this" (the
survey), say the register and receiver, "had been produced, it
would have furnished some support for the certificate of Aguilar;
as it is, we reject the claim." It may be added that other claims
under the same royal order for the same quantity of land have been
admitted by the receiver and register, and have been confirmed by
Congress. We do not think the testimony proves that the governor
has transcended his power.
The Court does not enter into the inquiry whether the title has
been conveyed to Sanchez or remains in Percheman. That is a
question in which the United States can feel no interest and which
is not to be decided in this cause. It was very truly observed by
the territorial court that this objection "is founded altogether on
a suggestion of a private adverse claim," but adverse claims, under
the law giving jurisdiction to the court, are not to be decided or
investigated. The point has not been made in this Court.
The decree is affirmed.
