Construction of the articles of the treaty between the United
States and Spain ceding Florida, relating to the confirmation of
grants of lands made by the Spanish authorities prior to the
treaty.
An examination of the authority of the Governors of Florida and
of other Spanish officers under the Crown of Spain to grant lands
within the territory, and of the manner in which that authority was
exercised.
An examination of the legislation of the United States on the
subject of the examination and confirmation of Spanish grants of
land in the Territory of Florida, made before the cession of the
same to the United States.
As the United States is not suable of common right, the party
who institutes a suit against it must bring his case within the
authority of some act of Congress or the court cannot exercise
jurisdiction.
In courts of a special limited jurisdiction, which the Superior
Court of East Florida unquestionably is in this case, the pleadings
must contain averments which bring the cause within the
jurisdiction of the court or the whole proceedings will be
erroneous.
It was obviously the intention of Congress to extend the
jurisdiction of the court to all existing claims and to have them
finally settled. The purpose for which the act was made could not
be otherwise accomplished. Any claim which the court was unable to
decide on the petition of the claimant would remain the subject of
litigation. This would defeat the obvious intention of Congress,
which ought to be kept in view in construing the act.
The words in the law which confer jurisdiction and describe the
cases on which it may be exercised are "all the remaining cases
which have been presented according to law, and not finally acted
upon." The subsequent words "shall be adjudicated," &c.,
prescribe the rule by which the jurisdiction previously given shall
be exercised.
On 4 April, 1829, the following petition was filed by the
appellee in the Superior Court of Florida.
"To the honorable the judge of the superior court for the
district and territory aforesaid, in chancery sitting: "
"The petition of George J. F. Clarke, a native and inhabitant of
the aforesaid territory, respectfully showeth:"
"That upon 6 April in the year of our Lord 1816, Don Jose
Coppinger, then Acting Governor of the Province of East Florida (by
virtue of authority derived from the Spanish government) actually
made to your petitioner an absolute title in fee of five miles
square of land, which your petitioner avers amounts to the number
of sixteen thousand acres, on the
Page 33 U. S. 437
west side of St. John's River, near and at Black Creek and at a
place called White Spring, for and in consideration of your
petitioner's having actually (before the day of the date of said
grant) constructed a saw mill, to be impelled by animal power,
which sufficiently appeared by proof to the said governor, as is
fully evidenced by the tenor of the grant aforesaid, and as a
reward for the industry and ingenuity of your petitioner in the
constructing of the aforesaid saw mill, and for other causes and
considerations in said grant set forth, all of which will more
fully appear by reference to said grant, a certified translation
whereof will in due time be filed herewith, and exhibited to this
honorable court, and prayed to be made a part hereof."
"Your petitioner further showeth that, finding there was not
vacant land at the place aforesaid suiting his wishes sufficient to
make the amount or number of acres aforesaid granted to him, he
did, on 25 January, 1819, file a memorial before the aforesaid
Governor Coppinger praying to be allowed to survey eight thousand
acres of said grant on other vacant lands, and that by a decree or
grant of the aforesaid governor Don Jose Coppinger bearing date on
25 January, 1819, the prayer of your petitioner was accorded to
him, as will fully and at large appear by reference to a
translation of a document herewith filed."
"Your petitioner further states that in pursuance of and in
accordance with the grant first before referred to and the
subsequent grant amendatory thereto, the said lands were surveyed
to him in three surveys. One of eight thousand acres at a place in
the original grant named on the west shore of St. John's River,
beginning at a stake at Picolata ferry landing and running south
eighty-two degrees west one hundred and ten chains to a pine;
second line, north fifteen degrees west one hundred and
twenty-three chains, to a pine; third line, north five degrees east
one hundred and twenty-three chains, to a pine; fourth line, north
thirty-five degrees west one hundred and seventy-five chains, to a
pine; fifth line, north eighty-two degrees west one hundred and
fifty-four chains, to a pine; sixth line, north sixty degrees west
one hundred and seventy-four chains, to a pine; seventh line, north
twenty-five degrees east one hundred and twelve chains, to a stake
on the south side of
Page 33 U. S. 438
Buckley Creek at the mouth, and thence with the meanders of St.
John's River to the beginning. One other survey of three thousand
acres, situated in and about Cone's Hammock, to the south of
Mizzell's or Orange Lake, beginning at a stake and running thence
south seventy degrees east one hundred and sixty-three chains
ninety-two links, to a pine; second line, south twenty degrees west
one hundred and twenty-two chains fifty links, to a hickory; third
line, north seventy degrees west one hundred and twenty-two chains
fifty links, to a red bay; fourth line, north fifty-eight degrees
west one hundred and forty-four chains, to a pine; fifth line,
north twenty degrees, east ninety chains seventy-one links, to the
beginning. And one other survey of five thousand acres, situated in
Lang's Hammock, on the south side of Mizzell's or Orange Lake.
Plats and certificates of all which surveys will in due time be
filed and exhibited herein, the lands herein designated all being
and lying within the jurisdiction of this court."
"Your petitioner further states that his aforesaid claim was
filed before the board of commissioners appointed to ascertain
claims and titles to lands in East Florida, who, as he is informed
and believes, have refused to recommend the same to the favorable
notice of the United States government, and have rejected the same,
but have not reported it forged or antedated. But your petitioner
is advised and believes and alleges and avers that by and under the
usages, customs, laws, and ordinances of the King of Spain, he is
entitled to, and invested with a complete and full title in fee
simple to the lands so as aforesaid granted to him, and that by the
treaty between Spain and the United States of 22 February, 1819,
the United States is bound to recognize and confirm to him his
aforesaid title in as full and ample a manner as he had or held the
same under the Spanish government. Without this, as far as your
petitioner is advised, the United States is the rightful claimant
to said lands."
"And your petitioner prays in consideration of the premises that
this honorable court will take jurisdiction of this his petition,
and that a copy hereof, and a citation to show cause, &c., may
be served on Thomas Douglass Esquire, United States District
Attorney for this district, pursuant to the provisions of
Page 33 U. S. 439
the statute in such cases made and provided, and, finally that
your honor will decree to your petitioner a confirmation of his
title to the lands in this his petition claimed, and all such
further and other relief as in equity he is entitled to, and your
petitioner, as in duty, &c."
On 25 January, 1819, the claimant presented a petition to the
governor of the province setting forth that the land in the
neighborhood of White Spring, which had been granted to him, did
not answer his expectation, and praying that the surveyor appointed
to survey the land granted to him might be directed to alter the
survey so as to reduce the square of five miles to the depth of
about two and a half miles, by its original length of five miles,
and that the surveyor might be further instructed to survey the
residue of the quantity granted to the petitioner, "in the Hammock,
called Lang's and Cone's, situated on the south of Mizzell's Lake."
On the same day, 25 January, 1819, the governor granted the request
of the petitioner.
On 24 February, 1819, the surveyor gave a certificate that he
had surveyed to the petitioner, eight thousand acres of land, west
of the River St. John's, beginning at the mouth of Berkley Creek,
below White Spring, and following upwards the margin of said river,
&c.
On 10 March, 1819, the said surveyor gave another certificate
that he had surveyed for the petitioner five thousand acres of land
in the place called Lang's Hammock, situated south of Mizzell
Lagoon, west of the River St. John's, in part of a greater quantity
granted to the said petitioner, on 6 April, 1816.
On 12 March, 1819, the said surveyor gave another certificate in
which he states that he had surveyed to the petitioner three
thousand acres of land in the place called Cone's Hammock, being
the complement of a greater quantity which was granted to him on 6
April, 1816.
The following copies of the petition, decree and grant were
annexed to the petition.
"(Translation) Memorial. To the Governor: Don George Clarke, a
native of this province, with due respect, presents himself to your
honor and says that, having noticed the constant scarcity of sawed
lumber in this province, and particularly
Page 33 U. S. 440
at this town, which, in consequence of the scantiness of this
indispensable material, has but half of the population that it
ought to have, and induced by the general advantages that may
result from mills worked by animals over those worked by water,
wind, or fire, because they are less expensive, more secure, and
adapted to any station, he has accomplished one at this town of his
own invention and workmanship, which, with four horses, saws eight
lines at a time, at the rate of two thousand superficial feet per
day. Therefore he prays that your honor will be pleased to grant
him a title of property to the quantity of land your honor had
thought proper to assign to the water mills for their continual
supply, forming a quantity equivalent to a five mile square, which
lands he solicits on the western part of the St. John's River,
above Black Creek, at a place entirely vacant, known by the name of
White Spring. He hopes to receive this grant from your honor's
kindness because, by this proof of his industry and labor, he has
given to the public an invention that by its expediency,
simplicity, and cheapness offers from this source of lumber the
most considerable advantages not only to the royal revenue, but to
the public also, by the labor of cutting, use, and commerce."
"Fernandina, March 16, 1816."
"P.D. For proof of what I have stated to your honor, I herewith
present a certificate of the civil and military commander of this
town,
ut supra."
"GEORGE J. F. CLARKE"
"Grant to Clarke for sixteen thousand acres. Decree. St.
Augustine, April 3, 1816. This government has granted lands to
other individuals, inhabitants of this province, who have solicited
them for the cutting of timber and the use of the same for the saw
mills or machines that they intend to establish, but with the
condition of being without effect until these establishments be
made. And whereas Don George Clarke proves, by certificate of the
commander of the Town of Fernandina, that he has constructed a mill
of great utility that offers advantages to that settlement, which
it is the duty and interest of government to promote in compliance
with royal orders dispatched for that purpose, rewarding the
industrious and laborious as an example to encourage other
inhabitants, and procure the increase of invention, it is granted
to the aforesaid
Page 33 U. S. 441
Don George Clarke the five miles square of land that he
solicits, of which a title shall be issued comprehending the place
and under the boundaries set forth in this petition, without injury
to a third person."
"COPPINGER"
"(Translation) Title of property of five miles square of land to
Don George Clarke. Don Jose Coppinger, lieutenant colonel of the
royal army, civil and military governor
pro tempore, and
chief of the royal domain of this city and its province,
&c.:"
"Whereas, by a royal order communicated to this government, on
29 October, 1790, by the Captain General of the Island of Cuba and
the Two Floridas, it is provided, among other things, that to
foreigners who of their free will present themselves to swear
allegiance to our sovereign there be granted to them lands gratis
in proportion to the workers that each family may have, and whereas
Don George Clarke, inhabitant of the Town of Fernandina, has
presented himself, manifesting that he has constructed, from his
own ingenuity a machine that, with four horses, saws eight lines at
one time, cutting two thousand superficial feet of timber in a day,
and soliciting, in virtue thereof, a grant in absolute property of
five miles square of land for a stock and supply of timber, which
is the portion that has been granted for water saw mills, and
having pointed out a competent tract of the west side of St. John's
River, above Black Creek, at a place called White Spring, that is
vacant, which establishment of said machine has been proved by a
certificate of the civil and military commandant of the Town of
Fernandina, therefore, and in consideration of the advantages
arising from such improvements in this said province, and in order
that, by rewarding the industrious and ingenious, it may serve as
an example and stimulus to other inhabitants, I have found proper,
by my decree of the third of the present month, to order the issue
of a competent title of property of said five miles square of land,
as will appear more fully by the proceedings had on the occasion,
and existing in the archives of the present notary. Therefore I
have resolved to grant, as in the name of his Majesty I do grant,
to the said George Clarke, the aforementioned five miles square of
land for himself, his heirs, and successors, in absolute property,
and I do issue, by these presents, a competent title, whereby I
Page 33 U. S. 442
separate the royal domain from the right and dominion it had to
said lands, and I cede and transfer the same to the said George
Clarke, his heirs and successors, to possess them as their own, and
to use and enjoy them without any encumbrance or tribute whatever,
with all their inlets, outlets, uses, customs, rights, and
services, which they have had, have, and by custom or law may have,
or in any wise may appertain to them, and at their will to sell,
cede, transfer, and dispose of them at their pleasure. To all which
I interpose my authority as I can, and of right ought to do by
virtue of these presents and the sovereign will. Given under my
signature and countersigned by the notary of government and royal
domain in this City of St. Augustine of Florida on 6 April,
1816."
"JOSE COPPINGER"
"By order of His Excellency."
"JUAN DE ENTRALGO"
"
Notary pro tem. of Gov. and Royal Domain"
The answer of the United States district attorney expressly
denies that by and under the usages, customs, laws, and ordinances
of the King of Spain, the petitioner is entitled to and vested with
a full and complete title in fee simple or any other title whatever
to the said land, and that the supposed grant to the said
petitioner is entirely null and void.
The answer further denies that Governor Coppinger had any power
or authority whatever to make such a grant, and that if such a
grant was ever made to the petitioner, it was made in violation of
the laws, ordinances, and royal regulations of the Spanish
government.
The decree of the court below confirmed the claim of the
petitioner not to the land described, and which, if any, was vested
in the said petitioner by the grant of Governor Coppinger dated 6
April, 1816, but other lands described by the surveyor in his
several certificates, dated 24 February and 10 and 12 March,
1819.
Page 33 U. S. 444
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
In April, 1829, George J. F. Clarke, the defendant in error,
filed his petition in the Court of the United States for the
Eastern District of Florida, praying that court to decree a
confirmation of his title to sixteen thousand acres of land,
granted to him on 6 April. 1816, by Don Jose Coppinger, then Acting
Governor of the Province of East Florida.
The attorney for the district appeared and by his answer denied
all the material allegations of the petition.
Several exhibits were filed, and several depositions were taken,
and in May term, 1832, the court adjudged the claim of the
petitioner to be valid, from which judgment the district attorney,
on behalf of the United States, prayed an appeal to this Court.
As the United States are not suable of common right, the party
who institutes such suit must bring his case within the authority
of some act of Congress, or the court cannot exercise jurisdiction
over it. The counsel for the United States contends that George J.
F. Clarke has not by his petition made a case in which the United
States have consented to be sued, and consequently that the court
of the district had no jurisdiction. To maintain this objection, he
has stated several principles and cited several decisions of this
Court in support of them. The proposition that in courts of a
special limited jurisdiction, which that of East Florida
unquestionably is in this case, the pleadings must contain
averments which bring the cause within the jurisdiction of the
court, or the whole proceeding will be erroneous, is admitted. The
inquiry is, does the petition of George J. F. Clarke contain these
averments.
Florida contained an immense quantity of vacant land which the
United States desired to sell. Numerous tracts in various parts of
this territory, to an amount not ascertained, had been granted by
its former sovereigns and confirmed by treaty. To avoid any
conflict between these titles and those which might be acquired
under the United States, it was necessary to ascertain
Page 33 U. S. 445
their validity, and the location of the lands. For this purpose,
boards of commissioners were appointed, with extensive powers, and
great progress was made in the adjustment of claims. But neither
the law of nations or the faith of the United States would justify
the legislature in authorizing these boards to annul preexisting
titles, which might consequently be asserted in the ordinary courts
of the country, against any grantee of the American government. The
powers of the commissioners therefore were principally directed to
the attainment of information on which they might report to
Congress, which generally confirmed all claims on which they
reported favorably. After considerable progress had been thus made
in the adjustment of titles, Congress, on 26 May, 1830, passed an
act for the final settlement of land claims in Florida. This act,
after confirming titles to a considerable extent, which are
described in the first, second, and third sections, 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,", &c.
It was obviously the intention of Congress to extend the
jurisdiction of the court to all existing claims, and to have them
finally settled. The purpose for which the act was made could not
be otherwise accomplished. Any claim which the court was unable to
decide on the petition of the claimant would remain the subject of
litigation. This would defeat the obvious intention of Congress,
which ought to be kept in view in construing the act.
The words which confer jurisdiction and describe the cases on
which it may be exercised are "all the remaining cases which have
been presented according to law and not finally acted upon." The
subsequent words "shall be adjudicated," &c., prescribe the
rule by which the jurisdiction previously given shall be
exercised.
The petition of Clarke, after showing his title under the
government of Spain, adds,
"Your petitioner further states that his aforesaid claim was
filed before the board of commissioners, appointed to ascertain
claims and titles to lands in East Florida, who, as he is informed
and believes, refused to
Page 33 U. S. 446
recommend the same to the favorable notice of the United States
government, and has rejected the same, but has not reported it
forged or antedated."
Do these averments satisfy the requisites of the statute?
The act requires that it shall "have been presented according to
law, and not finally acted upon." The petition states "that it was
filed before the board of commissioners," which is presenting it
"according to law," and then proceeds to state the action of the
board upon it. That action is not by law made final; consequently
the case is one of those which the court is directed to adjudicate
and finally settle on the principles contained in the act of 1828.
Any defect in the title as exhibited will be considered in deciding
on the right, but does not constitute an objection to
jurisdiction.
The title, as set out in the petition and exhibits filed with
it, is as follows:
On 16 March, 1816, George J. F. Clarke, styling himself a native
of the province, presented a memorial to the Governor of East
Florida in which he states the service he has rendered the public
by inventing and constructing a saw mill of great execution, and
prays, in consideration thereof, a grant of the quantity of land
which his honor had thought proper to assign to the water mills,
equivalent to five miles square, which land he solicits on the
western part of St. John's River, above Black Creek, at a place
entirely vacant, known by the name of White Spring.
On 3 April, the governor made a decree in which, after reciting
that he had granted lands to other individuals on account of saw
mills or machines to be erected, but with condition of being
without effect until the establishments be made, and that Clarke
had exhibited proof of the actual erection of a mill of great
utility, grants to the said George Clarke the five miles square of
land that he solicits, "of which a title shall be issued,
comprehending the place, and under the boundaries set forth in this
petition, without injury to a third person."
The title was issued on the sixth of the same month. It recites
that
"Whereas by a royal order communicated to the government on 29
October, 1790, by the Captain General of the Island of Cuba and the
Two Floridas, it is provided, among other things, that to
foreigners who of their free will
Page 33 U. S. 447
present themselves to swear allegiance to our sovereign, there
be granted to them lands gratis in proportion to the workers that
each family may have, and whereas Don George Clarke, inhabitant of
the Town of Fernandina, has presented himself manifesting that he
has constructed, from his own ingenuity, a machine that, with four
horses, saws eight lines at one time, cutting two thousand
superficial feet of timber in a day, and soliciting in virtue
thereof a grant in absolute property of five miles square of land,
. . . therefore, and in consideration of the advantages arising
from such improvements in this said province, and in order that, by
rewarding the industrious and ingenious, it may serve as an example
and stimulus to other inhabitants, I have found proper, by my
decree of the third of the present month, to order the issue of a
competent title of property of said five miles square of land, as
will more fully appear. . . . Therefore I have resolved to grant,
as in the name of his Majesty I do grant,"
&c.
An order to survey the land contained in this grant was given by
the governor on 29 December, 1818.
Afterwards, on 25 January, 1819, Clarke presented a memorial to
the governor stating that the quantity of land required for his
purpose could not be obtained at the place designated and praying
that the depth back might be contracted to about one and a half
miles, and the residue be surveyed at a different place described
in the memorial. This prayer was granted, and surveys were executed
and returned placing eight thousand acres on the ground described
in the decree and grant, and the remaining eight thousand acres, in
two surveys, on the ground designated in the memorial of 25
January, 1819.
The counsel for the United States contend that the grant made to
the petitioner by the Governor of East Florida is void because he
had no power to make it.
The royal order of 29 October, 1790, which is recited in the
grant of 6 April, 1816, most certainly does not authorize that
grant. It was avowedly made for the purpose of inviting foreigners
into the province, and Clarke was an inhabitant. It limited the
quantity of land to be granted to a fixed number of acres for the
workers that each family may have, and it is not doubted that the
quantity actually contained
Page 33 U. S. 448
in the grant far exceeded the quantity authorized by that order.
It is too plain for argument that if the validity of the grant
depends on its being in conformity with the royal order of 1790, it
cannot be supported. But we do not think it does depend on that
order.
Although the order is recited, the grant does not profess to be
founded on it. That it is not is most apparent. The grant
immediately proceeds to recite that Clarke is an inhabitant of
Fernandina, which would of itself defeat his application if
depending on the order in favor of "foreigners who of their free
will present themselves to swear allegiance to the sovereign" of
the grantor. It then proceeds to state the real motive for which it
is made. It is that he has constructed a machine of great value. It
is for this, and not for his being willing to swear allegiance to
the King of Spain, that he solicits the grant. "Therefore,"
proceeds the grant,
"and in consideration of the advantages arising from such
improvements in this said province, and in order that, by rewarding
the industrious and ingenious, it may serve as an example and
stimulus to other inhabitants, I have found proper, by my decree of
the third of the present month, to order the issue of a competent
title,"
&c. "Therefore," that is, in execution of the decree of the
third, "I have resolved to grant," &c.
The grant, then, of 6 April is avowedly made in execution of the
decree of the 3d. That decree contains no allusion to the royal
order of October, 1790, but professes to be founded entirely on the
motives afterwards expressed in the grant itself in addition to
that order.
We cannot think that the recital of a fact entirely immaterial,
on which fact the grant does not profess to be founded, can vitiate
an instrument reciting other considerations on which it does
profess to be founded, if the matter, as recited, be sufficient to
authorize it.
Without attempting to assign motives for the recital of the
order, we are of opinion that in this case the recital is quite
immaterial, and does not affect the instrument. The real inquiry is
whether Governor Coppinger had power to make it.
By the second article of the Treaty of 22 February, 1819,
between the United States of America and Spain, His Catholic
Majesty cedes to the United States, in full property
Page 33 U. S. 449
and sovereignty, all the territories which belong to him
situated on the eastward of the Mississippi, known by the name of
East and West Florida.
This article undoubtedly transfers to the United States, all the
political power which our government could acquire and all the
royal domain held by the Crown of Spain, but has never been
supposed, so far as is now understood, to operate on the property
of individuals. This Court has uniformly expressed the opinion that
it does not.
The eighth article was not intended to enlarge the cession. Its
principal object is to secure certain rights existing at the time,
but not complete. It stipulates that all the grants of land (in
Spanish "concessions 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 (in Spanish, shall remain ratified and
confirmed) to the persons in possession of the lands (in the
Spanish, in possession of them, that is, of the concessions) in the
same extent that the same grant (in Spanish, they) would be valid,
if the territories had remained under the dominion of His Catholic
Majesty.
It may be worth observing that the language of the article is
not "all grants made by His Catholic Majesty, or by his lawful
authority," which might perhaps involve an inquiry into the precise
authority or instructions given by the Crown to the person making
the grant, and might impose on the claimant the necessity of
showing that authority in each case, but "by His Catholic Majesty,
or his lawful authorities in the said territories ceded by his
Majesty to the United States." That is, by those persons who
exercised the granting power by authority of the Crown. This is the
generally received meaning of the words. They are equivalent to the
words "competent authorities," used in their place by the King of
Spain in his ratification of the treaty.
It may be also not entirely unworthy of remark that this article
expressly recognizes the existence of those "lawful authorities" in
the ceded territories.
It is not unreasonable to suppose that His Catholic Majesty
might be unwilling to expose the acts of his public and
confidential officers, and the titles of his subjects acquired
under
Page 33 U. S. 450
those acts, to that strict and jealous scrutiny which a foreign
government, interested against their validity, would apply to them
if his private instructions or particular authority were to be
required in every case, and that he might therefore stipulate for
that full evidence to the instrument itself which is usually
allowed to instruments issued by the proper officer. The subject
matter of the article therefore furnishes no reason for construing
its words in a more restricted sense than that in which they are
uniformly used and understood. In that sense, they mean persons
authorized by the Crown to grant lands.
The subsequent part of the sentence may in some degree qualify
their meaning. The added words are, "to the same extent that the
same grant (they) would be valid, if the territories had remained
under the dominion of His Catholic Majesty."
If this part of the sentence was intended as a limitation of the
general provision which precedes it, the subject matter of the
article may serve in some measure to explain it.
The general word "grant" may comprehend both the incipient and
the complete title. The greater number of those in Florida appear
to have been of the first description. Many of these contained
conditions on the performance of which the right to demand a
complete title depended. Without this qualification, the article
might have been understood to make these conditional concessions
absolute. Therefore they are declared to
"be ratified and confirmed, to the same extent that the same
grants (they) would be valid if the territories had remained under
the dominion of His Catholic Majesty."
The parties add (continuing the idea)
"but the owners in possession of such lands (the proprietors)
who, by reason of the recent circumstances of the Spanish nation,
and the revolutions in Europe, have been prevented from fulfilling
all the conditions of their grants (concessions) shall complete
them within the terms limited in the same respectively from the
date of this treaty, in default of which the said grants (they)
shall be null and void."
But whether the intention of that part of the article which
declares the extent to which the titles it contemplates shall be
valid is limited to the conditions inserted in them, or qualifies
the general preceding words, it cannot vary the sense of
Page 33 U. S. 451
the term "lawful authorities," nor warrant the construction that
a title derived from "a lawful authority" creates no presumption of
right, and leaves the holder under the necessity of proving every
circumstance which would be required to support it, had it
proceeded from a person not holding an office on which the power of
granting lands had been conferred.
These titles are to be valid to the same extent as if the
territories had not been ceded. What is that extent? A grant made
by a governor, if authorized to grant lands in his province, is
prima facie evidence that his power is not exceeded. The
connection between the Crown and the governor justifies the
presumption that he act according to his orders. Should he disobey
them, his hopes are blasted and he exposes himself to punishment.
His orders are known to himself and to those from whom they
proceed, but may not be known to the world.
Such a grant, under a general power, would be considered as
valid even if the power to disavow it existed until actually
disavowed. It can scarcely be doubted, so far as we may reason on
general principles, that in a Spanish tribunal, a grant having all
the forms and sanctions required by law, not actually annulled by
superior authority, would be received as evidence of title.
We proceed then to inquire into the power of the Governor of
East Florida.
It will not be material to ascertain the rules by which lands
were granted to the first settlers of America, or the officers from
whom titles emanated. So early as the year 1735, an ordinance was
passed by which the King reserved to himself the right of
completing the titles given by his provincial officers.
The inconvenience resulting from this regulation was so
seriously felt that the ordinance was repealed in 1754, and the
whole power of confirming, as well as originating titles was
transferred to officers in the colonies. The power of appointing
subdelegate judges to sell and compromise for the lands and
uncultivated parts of the dominions of the Spanish Crown in the
Indies was declared to belong to the viceroys and presidents of the
royal audiences of those kingdoms, and
Page 33 U. S. 452
the same royal order directed that
"In the distant provinces of the audiencias, or where sea
intervenes, as Caracas, Havana, Carthagena, Buenos Ayres, Panama,
Yucatan, Cumana, Margarita, Puerto Rico, and in others of like
situation, confirmations shall be issued by their governors, with
the advice of the
officiales reales (the King's fiscal
ministers) and of the lieutenant general,
hateado, where
he may be stationed."
In 1768, this power of granting and confirming titles to lands
was vested in the intendants.
In 1774, it was revested in the civil and military governors
(
see White's Compilation 218). In October, 1798, this
power was again conferred on the intendant so far as respected
Louisiana and West Florida, but this order did not extend to East
Florida. In that province it remained in the governor.
The regulations of the Governors O'Reilly and Gayoza, and the
proceedings of the Governors Quisada, Estrada, White, Kindelan, and
Coppinger, of East Florida, and all the grants which have been
brought to the view of this Court, together with the reports of the
commissioners appointed to adjust land titles in the territories
ceded by Spain, show that from the year 1774, the power of granting
lands was vested in the Governors both of Louisiana and the
Floridas. The ordinance of 1798, which transferred it to the
intendant of Louisiana and West Florida, did not extend to East
Florida; consequently it remained with the governor of that
province.
This is admitted by the counsel for the United States.
So far then as respects East Florida, the term "lawful
authorities" designates the governor as certainly as if he had been
expressly named in the eighth article of the treaty. He is the
officer who was empowered by his sovereign to make grants of lands
in that province, and in ceding the province to the United States,
his sovereign has stipulated that grants made by him shall be as
valid as if the province had remained under his dominion.
It has been already stated that the acts of an officer to whom a
public duty is assigned by his King, within the sphere of that
duty, are
prima facie taken to be within his power. This
point was fully considered and clearly stated by this Court in the
case of
Arredondo, and the principles on which the opinion
rests are believed to be too deeply founded in law
Page 33 U. S. 453
and reason ever to be successfully assailed. He who would
controvert a grant executed by the lawful authority, with all the
solemnities required by law, takes upon himself the burden of
showing that the officer has transcended the powers conferred upon
him or that the transaction is tainted with fraud.
This the counsel for the United States undertakes to do. He
insists that Governor Coppinger has transcended his powers in
making the title now under consideration for a larger quantity of
land than he was empowered to grant, and on a consideration not
warranted by law.
The object of Spain, as of all the European powers who made
settlements in America, was to derive strength and revenue from her
colonies. To accomplish this, grants of lands to individuals became
indispensable. History informs us that this measure was adopted by
all. The immense territories held by Spain, affording an almost
inexhaustible fund of lands claimed by the Crown, could scarcely
fail to produce large grants to favorites as well as a regular
system for inviting population into her colonies. The viceroys in
New Spain and Peru, who were also governors, possessed almost
unlimited powers on this and other subjects, but in distant
provinces or where sea intervenes, the right of giving title to
lands was vested in their governors with the advice of the King's
fiscal ministers and of the lieutenant general, where he may be
stationed. No public restraint appears to have been imposed on the
exercise of this power. The officer and his conduct were of course
under the supervision and control of the King and his ministers,
and especially of his council of the Indies.
In 1735, this power was withdrawn from the provincial officers,
but was restored to them in 1754. Wheat.Comp. 49. Clarke's Land
Laws 973. The royal order of 15 October, 1754 confers this power in
general terms without any limitation on the quantity or on the
consideration which may move to the grant. It would excite surprise
if in a monarchy like that of Spain, no rewards in land could be
granted for extra services and no favors could be bestowed. Among
the earliest laws for the government of America (Wh.Comp. 30) is an
order that the viceroys of Peru and Mexico "grant such rewards,
favors and compensations as to them may seem fit." A subsequent
Page 33 U. S. 454
order (Wh.Comp. 41), after directing extensive dispositions of
territory, adds "all the remaining land may be reserved to us,
clear of any encumbrance, for the purpose of being given as
rewards, or disposed of according to our pleasure." In White's
Comp. 29, we find the following law: "It is our pleasure that
services be remunerated where they shall have been performed, and
in no other place or province of the Indies."
It would seem that these remunerations, if in land, would be
made by the governor, when empowered to grant them, provided no
other officer was designated.
Two letters of 3 April, 1800, from an officer authorized to
grant lands, are published in Clarke's Land Laws 989 which would
seem to countenance the opinion that they did not consider their
powers as limited to small quantities, but that they might exercise
discretion in this respect. They are written by the attorney
general under Morales. The first, addressed to Don Henry Peyroux,
is in these words:
"I have to reply to your communication No. 9 that I cannot at
this time consent to the sale of lands in the manner and under the
circumstances requested, and I have to make the same reply to that
of 6 February last, No. 8, in which you ask for one hundred
thousand arpens."
The language of this letter is rather that of a man who has
exercised his discretion on a subject to which his power extends
than of one who might at once repel the application by referring to
the orders of his sovereign. The second letter is of the same
character.
A royal order was issued on 4 January, 1813, which recites that
the general Cortes had decreed as follows:
"Considering that the conversion of public lands into private
property is one of the measures which the welfare of the people as
well as the advancement of agriculture and industry most
imperiously demands, and desiring at the same time that this class
of lands should serve as an aid to the public necessities, a reward
to the deserving defenders of the country, and a support to the
citizens who are not proprietors, the general and extraordinary
Cortes does decree: "
"All the uncultivated or public lands and those of the
corporation of cities, with the timber thereon or without it,
both
Page 33 U. S. 455
in the peninsular and adjacent islands, as well as in the ultra
marine provinces, except the commons necessary for the towns, shall
be made private property."
"In whatever manner these lands be distributed, it shall be in
full property."
This order was transmitted to the Captain General of the Island
of Cuba, but seems to have been repealed on 22 August, 1814.
We do not find any limitation in the royal orders restricting
the power of the governors to a league square in their grant.
The counsel for the United States searches for them in the
regulations by colonial officers prescribing the rules to be
observed in the offices established for the purpose of carrying
these orders into execution, and in special orders of the Crown for
specified objects.
The first to which reference has been made were issued by Don
Alexander O'Reilly, Governor of Louisiana. He recites, among other
things, the complaints and petitions which had been presented to
him by the inhabitants, together with the knowledge he had acquired
of their local concerns, by a visit lately made to the Cote des
Allemands, &c., and from an examination made of the report of
the inhabitants assembled by his order in each district, states his
conviction that the tranquility of the inhabitants and the progress
of culture required, which shall fix the extent of the grants of
lands which shall hereafter be made, &c., and adds,
"For these causes, and having nothing in view but the public
good and the happiness of every inhabitant, after having advised
with persons well informed in these matters, we have regulated all
these objects in the following articles: "
"1st. There shall be granted to each newly arrived family,"
&c.
This is most obviously the language of a man who supposes
himself to possess full power over the subject. The rules he
prescribes for himself do not purport to be limits imposed by a
master, but to be marked out by his own discretion, and to be
alterable at will. He makes no allusion to orders emanating from
his sovereign, marking out the narrow path he is bound to tread,
but gives the law himself, in the character of a man invested with
full powers.
Page 33 U. S. 456
The eighth article declares that
"No grant in the Opelousas, Atacapas, and Natchitoches shall
exceed one league in front by one league in depth, but when the
land granted shall not have that depth, a league and a half in
front by half a league in depth may be granted."
Had the limitation on the quantity to be granted been five miles
square instead of a league square, is there anything in the
information we possess which would enable us to say that the one
more than the other would be an excess of power?
The instructions of Governor Gayoso are dated in September,
1797, till which time it may be presumed that those of O'Reilly
remained in force. His instructions are for the government of the
commandants of ports, who appear to have been entrusted with the
power of making concessions. His regulations, so far as they varied
those which preexisted, constituted, it may be presumed, a new law
for the commandants, but do not prove the existence of restrictions
on his own power. Like those of O'Reilly, they give every
indication of proceeding from an officer possessing general and
very extensive powers.
The same observation applies to the regulations of Morales, who
was Intendant of Louisiana and West Florida. They are dated in
July, 1799, soon after receiving the order of the King of October,
1798, which directed
"That the intendancy of these provinces be put in possession of
the privilege to divide and grant all kind of land belonging to his
Crown, which right, after his order of 24 August, 1770, belonged to
the civil and military government. Wishing to perform this
important charge,"
&c.
"After having examined, with the greatest attention, the
regulation made by His Excellency, Count O'Reilly, 18 February,
1770, as well as that circulated by His Excellency the present
Governor, Don Manuel Gayoso de Lernos, 1 January, 1798, and with
the counsel which has been given me on this subject by Don Manuel
Senaro, assessor of the intendency, and other persons of skill in
these matters, that all persons who wish to obtain lands may know
in what manner they ought to ask for them and on what condition
land can be granted and sold, &c., I have resolved that the
following regulations shall be observed."
He then proceeds to regulate with great exactness
Page 33 U. S. 457
the course to be observed by those who seek to obtain
concessions, the conditions on which they shall be granted, and the
conduct to be observed before a complete title will be made. These
regulations do not measure his power, but give the law to those who
are to execute his orders.
These are the proceedings of the officers who were entrusted
with the power to divide and grant the Crown lands in Louisiana and
West Florida. It is not to be presumed that different powers were
conferred on the officers to whom the same duties were confided in
East Florida.
Internal regulations of police were issued by Governor Quesada
on 2 September, 1790. They commence with saying
"Whereas I am commanded by royal orders, agreeable to the public
wants, to apply the most reasonable and quick remedies thereto: for
the purpose, therefore, of accomplishing this, in the edict
commonly called 'internal regulations of police,' I have taken the
most conducive steps, notwithstanding, much to my sorrow, there has
been so much to amend and establish, that a voluminous code would
scarcely be sufficient for me to comprise all, in proportion to the
ardent desire which animates me for the prosperity of the province
and the service of the sovereign; wherefore, merely for the
present, and reserving hereafter, when permitted by my other
duties, the right of attending particularly to this important
subject, I therefore make known and order the following: "
"1st. I grant to all the inhabitants permanently settled, and
subject of his Majesty, in his royal name, for their use, the
quantity of land they may require, in proportion to their force, in
any part of the desert province, without any exception. To this
end, those desirous of obtaining the same will present themselves
to me within twenty days, stating their circumstances by memorial,
what lands they have obtained to the present period, and to what
quantity, and in what place they are desirous of locating them now;
under the precise condition that it will be without injury to a
third person, I will attend to their solicitude according to the
examination I may make thereof, and although the laws of the Indies
authorize me to make no absolute distribution of the same, and
being in the case of tit. 12, book 4, I abstain therefrom from
powerful motives.
Page 33 U. S. 458
But for the greater security of those interested, I will forward
my ideas and representation on the subject to the King, persuaded
that, in consequence thereof, those obtaining grants from me now
will be confirmed in the possession of the same."
The law of the Indies to which the governor refers is inserted
in Clarke's Land Laws, 967, and is in these words:
"That our subjects may apply themselves to the exploration and
settlement of the Indies, and that they may live with comfort and
convenience, which we desire, it is therefore our will that houses,
grounds, lands, cavallerias, and peonias be granted to all those
who shall settle new lands, in the villages and places that the
governor of the new settlement shall mark out for them. There shall
be a distinction made between gentlemen and laborers (peones), and
those who shall be of less grade and merit, and in proportion to
their services, the lands shall be increased and ameliorated for
prosecuting agriculture and the tending of cattle."
It is not easy to comprehend precisely the influence which this
law ought to have on the governors of the Spanish colonies. It was
undoubtedly the same in them all.
We collect from the extracts from the laws of the Indies which
are given us in Clarke's Land Laws and White's Compilation that
they apply chiefly to the general purposes of population and
settlement. For the attainment of these objects general rules were
framed which contained affirmative instructions to the officers to
be observed in the formation of new settlements, in donations to
emigrants, and in the sale and distribution of Crown lands. How far
a discretion in the execution of these laws or whether any
discretion was placed in those distant officers to whom they were
directed we have not the means of ascertaining. So far as we are
informed, they contain no negative or prohibitory words, and the
regular reports of governors must have kept their superiors
informed of their proceedings. Mr. White says, p. 9,
"I sought assiduously but have been unable to discover a record
or notice of the proceedings upon some grant or concession which
had been made by a captain general, intendant, or governor and
disapproved of by the King. I have been unable to ascertain whether
any such exist."
The regulations of Governor Quesada, which have been cited and
in which he appears to have deviated in some
Page 33 U. S. 459
respects from the law to which he refers, apply to the general
objects of cultivation, population, and settlement, and ought to
conform to the laws which had been framed for those subjects. He
seems to grant a general privilege to every individual to acquire
lands at will. He retains to himself no discretion, exercises no
judgment in the case. "I grant," he says,
"to all the inhabitants permanently settled and subjects of his
Majesty, in his royal name, for their use, the quantity of land
they may require in proportion to their force in any part of the
desert province, without exception."
Yet he is persuaded that these grants will be confirmed.
These extraordinary regulations were in the exercise of that
ordinary power to which general laws had been adapted. The right to
bestow rewards on those individuals who had rendered any particular
service constituted a distinct branch of power, to which those
general laws could not apply. White's Compilation abounds with
extracts showing the disposition of the King that they should be
given liberally.
Governor White succeeded Governor Quesada. In conformity with
usage, he proclaimed, in October, 1803, the rules by which it was
his purpose to be governed in the concessions and divisions of
lands to the new settlers. He adopts a more rigid practice than had
been observed by his predecessors, but these rules appear to
emanate from his own judgment, and to be intended to apply only to
new settlers who come to establish themselves in the province.
Don Nicholas Ganido, the agent of the Duke of Allegon, to whom
all or nearly all the uncultivated land of East Florida had been
granted by the King, addressed a letter to the governor in
February, 1819, soliciting official information respecting the
validity of titles which had emanated from him or his predecessors.
It is not supposed that this letter or the answer to it can be
received as authority, but when it is considered that the Duke of
Allegon believed himself to the lawful proprietor of all the lands
not regularly vested in others, and was of course anxious do defeat
the titles of others, and that the questions were asked by and
addressed to those who were best acquainted with the authority of
the governor and the principles on which he acted, we may, on a
subject on which so little light can be shed, look at the letter,
and the answer to it.
Page 33 U. S. 460
"Seventh. In what manner are those concessions considered, which
were made to foreigners or natives, of large portions of land, who
have disappeared, carrying with them their documents, without
having cultivated or even seen the lands granted to them?"
"Eighth. Can those persons to whom assignments of large portions
of territory have been made for the establishment of factories,
such as water or steam mills, who did not then comply, nor have not
since presented themselves to establish their machinery (allowing
that none exists in the province which is known), be considered
now, or in future, with any right? If, in a space of time such as
has elapsed until now, they have not established their works, will
there be any reason why said lands should not be declared open and
revert to the class of public lands?"
These questions are asked by the agent of the Duke of Allegon, a
favorite of the King. They relate exclusively to those large grants
which are now said to have exceeded the power of the governor. They
were of course known to the Duke of Allegon, and, we must presume,
to his master. Yet an excess of authority is not even suggested. No
doubt seems to be entertained of the validity of those which had
been completed by the grant of a full title, or those still
incomplete, the conditions of which have been performed. The
inquiry respects those persons only who had totally neglected the
conditions contained in their grants. Their titles alone seem to be
doubted even by the Duke of Allegon.
This letter appears to have been referred by the governor to
Ruperto Saavedra, who answers all the inquiries made by Ganido. He
says,
"Those who have titles of proprietorship, who have complied with
the conditions pointed out to entitle them to them, or have
obtained them as a remuneration for services, or other
considerations deemed by the government sufficient for the purpose,
in these cases there is a precise obligation to respect said
titles, especially as the said conditions have been established at
the will of the governors, and that the royal order of 1790 on the
subject, impairs none, but expressly states that lands shall be
granted and surveyed gratis to those foreigners who, of their own
free will, present themselves to swear allegiance. "
Page 33 U. S. 461
After observing that the donation to the Duke of Allegon is
limited "to uncultivated lands which have not been granted,"
Saavedra says
"Yet it is proper to explain in this particular that the
concessions made to foreigners or natives of large or small
portions of land, carrying their documents with them (which shall
be certificates issued by the secretary), without having cultivated
or even seen the lands granted to them, such concessions are of no
value or effect, and should be considered as not made, because the
abandonment has been voluntary, and that they have failed in
complying with the conditions prescribed for the encouragement of
population. The assignments of extensive portions of territory,
which have been made for the establishment of factories, to persons
who did not then comply, nor have not since presented themselves to
establish their mechanical works, ought also to be considered
without any right or value, and said lands declared perfectly free,
that they may revert into the class of public lands,"
&c.
This opinion was laid before Governor Coppinger and approved by
him. It recognizes the right to grant as "a remuneration for
services or other considerations deemed by the government
sufficient for the purpose," and speaks of concessions to
foreigners or natives for large or small portions of land as
equally valid. The right they give to a complete title depends on
the conduct of the proprietor, on his compliance or noncompliance
with the conditions, not on the quantity conceded. The same
principle applies "to assignments of extensive portions of
territory which had been made for the establishment of factories"
which have not been erected. The extensiveness of the territory
assigned is not made an objection, but the failure to perform the
condition on which the concession was made.
It is apparent that both the agent of the duke and Saavedra
considered these large concessions as within the power of the
governor.
The counsel for the United States relies confidently on the
letter of Governor Kindelan of 4 June, 1803, addressed to the
Captain General of Cuba, in which he recommends the militia who had
served during the late insurrection, and third battalion of Cuba,
as worthy the gifts to which the supreme governor may think them
entitled. He suggests granting "to
Page 33 U. S. 462
the soldiers a certain quantity of land, as established by
regulations in this province, agreeably to the number of persons in
each family."
On the part of the United States, it is insisted that this
application could not have been made had the governor been
authorized by the existing laws to reward their services still more
liberally.
The argument has undoubtedly great weight, but we do not think
it conclusive.
Grants to a whole class of individuals, a distribution of lands
among the body of the colonial militia, and a battalion of a
different province, might be expected to belong rather to the
general system of distribution than to that branch of it which
authorizes rewards to individuals for particular special services,
and might be expected to proceed directly from the Crown or to have
its express sanction.
If not all the extracts from the laws of the Indies, at least by
far the greater part of them which we find in White's Compilation
relating to rewards contemplate services peculiar to the
individual, not those which are of a general character. We do not
think, therefore, that an application to superior authority for a
distribution of lands among the militia who have served during a
period of dangerous insurrection is necessarily to be ascribed to
the consciousness of wanting power to give a reward in lands to an
individual whose invention is deemed meritorious.
The favor of granting rewards is expressed in terms indicating
the expectation that it is to be exercised by those governors who
are also viceroys, but there are no prohibitory words, and the
general power of granting lands, extended to the governors of
distant provinces or where sea intervenes, may comprehend granting
as a reward for individual merit. The facts that this power was
exercised certainly as early as 1813 by the Governor of East
Florida, that the condition of the province and the exhausted state
of the kingdom seemed to require and justify it, and that the King
never disapproved the proceedings of the governor, existed when the
treaty was formed. Such was the state of things to which the treaty
applied.
It is stated that the practice of making large concessions
commenced
Page 33 U. S. 463
with the intention of ceding the Floridas, and these grants have
been treated as frauds on the United States.
The increased motives for making them have been stated in
argument, and their influence cannot be denied. But admitting the
charge to be well founded, admitting that the Spanish government
was more liberal in its concessions after contemplating the cession
than before, ought this circumstance to affect
bona fide
titles to which the United States made no objection?
While Florida remained a province of Spain, the right of His
Catholic Majesty, acting in person or by his officers, to
distribute lands according to his pleasure was unquestioned. That
he was in the constant exercise of this power was well known. If
the United States was not content to receive the territory, charged
with titles thus created, it ought to have made, and it would have
made, such exceptions as it deemed necessary. It has made these
exceptions. It has stipulated that all grants made since 24
January, 1818, shall be null and void.
It is understood that this stipulation was intended to embrace
three large grants made by the King, which comprehended nearly all
the crow lands in East Florida. However this may be, it shows that
the subject was in the mind of the negotiators and that the
apprehended mischief was guarded against so far as the parties
could agree. The American government was content with the security
which this stipulation afforded, and cannot now demand further and
additional grounds. The acquisition of the Floridas was an object
of immense importance to the United States. It was urged by other
considerations of a still more powerful operation in addition to
vacant lands. It will be regarded, while our Union lasts, as the
highest praise of the administration which made it and of the
negotiator who accomplished it. It cannot be doubted that the terms
were highly advantageous, and that they were so considered by all.
The United States was satisfied, and had reason to be satisfied,
with the provision excluding grants made subsequent to 24 January,
1818, when the fraud on that provision was prevented by the terms
of the ratification of the treaty. All other concessions made by
His Catholic Majesty or his lawful authorities in the ceded
Page 33 U. S. 464
territories (in the ratification by the King of Spain,
"competent authorities") are as valid as if the cession had not
been made. If it be shown by the person holding the concession that
it was made by the officer authorized to grant lands, that it was
the duty of this officer to give a regular account of his official
transactions, that no grant ever made by the person thus entrusted
had ever been disapproved, courts ought to require very full proof
that he had transcended his powers before they so determine. We do
not think this full proof has been given in the present case.
The considerations then recited in the grant, in addition to the
royal order of October, 1790, are, we think, sufficient to maintain
it.
It will be proper to take a concise review of the legislation of
Congress on this subject.
The first act, passed on 8 May, 1822, entitled "an act for
ascertaining claims and titles to land within the Territory of
Florida," L.U.S. vol. 7, 103, directs that commissioners be
appointed "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." The sixth section enacts
"That every person, or the heirs or representatives of such
persons, claiming titles to lands under any patent, grant,
concession, or order of survey dated previous to 24 January, 1818,
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
before the commissioners his, her, or their claim, setting forth
particularly its situation and boundaries, if to be ascertained,
with the deraignment of title when they are not the grantees or
original claimants,"
&c.,
"And said commissioners shall proceed to examine and determine
on the validity of said patents, grants, concessions and orders of
survey agreeably to the laws and ordinances heretofore existing of
the governments making the grants respectively, having due regard
in all Spanish claims to the conditions and stipulations contained
in the eighth article of a treaty concluded at Washington, between
His Catholic Majesty and the United States on 22 February, 1819,
but any claim not filed previous to 31 May, 1823, shall be deemed
and
Page 33 U. S. 465
held to be void and of none effect."
They were directed to examine all these claims, and if satisfied
that they were correct and valid, to confirm them,
"provided that they shall not have power to confirm and claim or
part thereof where the amount claimed is undefined in quantity or
shall exceed one thousand acres; but in all such cases shall report
the testimony, with their opinions, to the Secretary of the
Treasury, to be laid before Congress for its determination."
The object of this law cannot be doubted. It was to separate
private property from the public domain for the double purpose of
doing justice to individuals and enabling Congress safely to sell
the vacant lands in their newly acquired territories. To accomplish
this object, it was necessary that all claims of every description
should be brought before the commissioners, and that their powers
of inquiry should extend to all. Not only has this been done, but,
further to stimulate the claimants, the act declares "that any
claim not filed previous to 31 May, 1823, shall be deemed and held
to be void and of none effect." This primary intention of Congress
is best promoted by determining causes finally where their
substantial merits can be discerned.
The subsequent acts of Congress respecting the board of
commissioners have no material influence on the question before the
Court.
On 23 May, 1828, Congress passed "an act supplementary to the
several acts providing for the settlement and confirmation of
private land claims in Florida."
This act confirms all claims contained in the reports of the
Commissioners of East Florida, and in the reports of the receiver
and register acting as such, "to the extent of the quantity
contained in one league square," and continues the powers of the
register and receiver till the first Monday in the following
December.
The sixth section enacts
"That all claims to land within the Territory of Florida
embraced by the Treaty between Spain and the United States of 22
February, 1819, 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
Page 33 U. S. 466
reported as antedated or forged by said commissioners or
register and receiver acting as such shall be received and
adjudicated by the judge of the superior court of the district in
which the land lies, upon the petition of the claimant,"
&c.
The report of the register and receiver being made, Congress, on
26 May, 1830, passed "An act for the final settlement of land
claims in Florida."
This act, after confirming the claims it recites, declares 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 to the several acts for the
settlement and confirmation of private land claims in Florida."
That act refers to the Act 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 to try the validity of their claims."
This last recited act provides for the trial of claims
"protected or secured" by the treaty which ceded Louisiana to the
United States. After describing those claims in terms supposed to
comprehend them all, the act proceeds,
"In each and every such case it shall and may be lawful for such
person or persons, or their legal representatives, to present a
petition to the District Court of the State of Missouri setting
forth fully, plainly, and substantially the nature of his, her, or
their claim to the lands, tenements, or hereditaments, and
particularly stating the date of the grant, concession, warrant, or
order of survey under which they claim, the name or names of any
person or persons claiming the same, or any part thereof, by a
different title from that of the petitioner or holding possession
of any part thereof otherwise than by the leave or permission of
the petitioner, and also, if the United States be interested, on
account of the lands within the limits of such claim not claimed by
any other person than the petitioner; also the quantity claimed and
the boundaries thereof when the same may have been designated by
boundaries, by whom issued, and whether the said claim has been
submitted to the examination of either of the tribunals which have
been constituted
Page 33 U. S. 467
by law for the adjustment of land titles, in the present limits
of the State of Missouri, and by them reported on unfavorably or
recommended for confirmation."
It has been already stated that this act does not define the
jurisdiction conferred on the Court of East Florida by the act of
1830, but directs the mode of proceeding and the rules of decision.
Consequently those technical averments which are required in the
pleadings to show the jurisdiction of a court of limited
jurisdiction are not indispensable, and it will be sufficient if
the petition state a case substantially within the law. The court
is satisfied that the petition of George J. F. Clarke is in this
respect unexceptionable. It complies, we think, with all the
requisites of the law.
The grant which constitutes the foundation of the petitioner's
claim is a complete title, subject to no condition whatever,
emanating from the Governor of East Florida, who was the lawful
authority of His Catholic Majesty, for making grants and
concessions of land in that province. The decree of the district
court, so far as it affirms the validity of this grant, is, we
think, correct. But it appears to us to confirm the title of the
petitioner to lands not comprehended within it.
In his original application to Governor Coppinger, the
petitioner describes with precision the land he solicits. The
decree conforms to the petition, and the full title to both. That
instrument, after stating the prayer of Clarke, adds,
"And having pointed out a competent tract on the west side of
St. John's River above Black Creek at a place called White Spring
that is vacant, &c., therefore I have resolved to grant, as in
the name of his Majesty I do grant to the said George Clarke the
aforementioned five miles square of land, for himself, his heirs
and successors in absolute property, and I do issue by these
presents a competent title whereby I separate the royal domain from
the right and dominion it had to said lands,"
&c.
Afterwards, on 25 January, 1819, he again presented a petition
to the governor stating that, having examined the lands in the
neighborhood of White Spring, he finds that their extension back is
in no wise adequate to the expectation and intentions he had formed
nor the purposes for which they were granted to him by the
government, and furthermore
Page 33 U. S. 468
he fears that they will interfere with the lands appertaining to
the house of John Forbes & Co., therefore he prays
"That the survey made in pursuance of an order granted by the
governor should be verified with this only difference, that the
depth back will be contracted to about one and a half miles, and
that the said surveyor will survey the balance in the hammocks
called langs and cones, situated on the south of Mizzel's Lake,
which are vacant."
The prayer of the petitioner was granted and the surveys were
made. The plats were laid before the district court, and show that
one, containing eight thousand acres, was surveyed within the
bounds of the grant. Two others, one for five and the other for
three thousand acres, were surveyed elsewhere. The judge confirmed
the title of the petitioner to the three surveys.
The grant conveyed to Clarke the land described in the
instrument, and no other. A permit to survey other lands can be
considered only as a new order of survey, depending for its
validity on the power of the person who made it. On 25 January,
1819, Governor Coppinger did not possess this power. The treaty of
February, 1819, had declared that all grants (concessions) made
after 24 of January, 1818, should be null and void. The acts of
Congress forbid the allowance of any order of survey made after
that date. So much of the decree as sanctions these two surveys of
five and three thousand acres is in our opinion erroneous.
But we do not think these irregular surveys affect the title
under the original grant unless the lands have been acquired by
others. The vacant lands within its bounds still belong to the
appellee, and may now be surveyed by him.
It is the opinion of this Court that there is no error in so
much of the decree of the Superior Court for the District of East
Florida, pronounced in this case in May term, 1832, as doth order,
adjudge, and decree that this claim is valid and as confirms the
same unto the claimant to the extent and agreeably to the
boundaries as in the grant for the said lands, and in the plat of
survey thereof made by Don Andrew Burgevin of eight thousand acres
and dated 24 February, 1817, and that so much of the said decree
ought to be affirmed, and it is hereby affirmed accordingly. But
that so much of
Page 33 U. S.
469
the said decree as confirms to the claimant the lands
contained in two other surveys thereof, made by the said Don Andrew
Burgevin, one for five thousand acres on 10 March, 1819, and the
other for three thousand acres, on the 12th of the same month, is
erroneous and ought to be reversed, and the same is hereby reversed
accordingly, and the cause is hereby remanded to the said district
court with directions to take further proceedings therein in such
manner that the residue of the said granted land be surveyed to the
said petitioner within the limits of the grant. All which is
ordered and adjudged by this Court.
This cause came on to be heard on the transcript of the record
from the Superior Court for the Eastern District of Florida and was
argued by counsel, on consideration whereof this Court is of
opinion that there is no error in so much of the decree of the said
court pronounced in May term, 1832, as doth adjudge and decree that
the claim of the petitioner in that court is valid and in so much
thereof as confirms the same unto the claimant to the extent and
agreeably to the boundaries as in the grant for the said lands and
in the plat of survey thereof made by Don Andrew Burgevin, of eight
thousand acres and dated 24 February, 1819, filed in this cause,
and that so much of the said decree ought to be affirmed, and it is
hereby affirmed accordingly. But that so much of the said decree as
confirms to the claimants the lands contained in two other surveys
thereof, made by the said Don Andrew Burgevin, filed also in this
cause, one for five thousand acres on 10 March, 1819, and the other
for three thousand acres on the 12th of the same month, is
erroneous and ought to be reversed, and the same is hereby reversed
accordingly, and this Court doth remand the said cause to the said
superior court with directions to conform to this decree and to
take such further proceedings in the premises that the remaining
eight thousand acres, which have been improperly surveyed without
authority be surveyed on any lands now vacant within the limits of
the grant made to the petitioner on 6 April, 1816, and that the
title of the petitioner to the land so surveyed be confirmed. All
which is ordered, adjudged and decreed by this Court.