Every nation has its own manner of securing the fidelity of its agents. Free governments are constructed upon the principle of entrusting as little power as possible, and providing against its abuse preventively, by all species of checks and limitations. Arbitrary ones proceed upon the principle of bestowing ample powers and extensive discretion, and guarding against their abuse by prompt and strict accountability and severe punishment. Both have been invented by mankind for purposes of mutual defence and common justice, but the pervading spirit of the one is preventive, of the other vindicatory.

How absurd would it be, then, to apply the maxims of the one government to the acts of the other. As well might we judge the life of Pythagoras by the law of the New Testament, or the philosophy of Zoroaster by that of Newton, as subject the administration of a Spanish governor to the test of magna charta, the bill of rights, the habeas corpus act, or the principles of American constitutional law.

Even the laws of the Indies, obscure, perplexed, and sometimes even unintelligible as they are, hardly reached across the ocean, and the decline of the Spanish, like that of the Roman empire, was marked by the obsoletism of the distant prefects.

Nor were the offices of captain general, intendant, or sub-delegate, sinecures. Entrusted with the command and defence of remote and exposed possessions-often reduced to the greatest extremities for the want of money and supplies-neglected by the feeble government of the mother country-they were yet expected to guard the colony, and execute the most rigorous system of monopoly, amid greedy neighbours and an impoverished people. They were frequently obliged to create their own resources; and some idea of their difficulties, and the devotion and address which surmounted them, may be formed by remembering how long the able but cruel Morilla protracted a deperate warfare, amid every species of distress and destitution.

Their first duty was to preserve his catholic majesty's province, committed to their care; and if they did it, and could only do it by some invasions of the fisc, or dilapidations of the royal domain, does it lie with us to complain of their fidelity to him, and vitiate those titles which were devised from a law above all other-necessity? -(Vide White's Land Laws, 235, 7 vol. Ex. Doc. p. 2, 1824-25. Also, MSS. Extracts from Col. McKee's correspondence. See, also, the letter of Gov. Chester to the Earl of Dartmouth-MSS. Letter-book, West Florida, 18th Nov. 1775, p. 34.)

Extract from an opinion of Chief Justice Marshall, in Percheman's case.-7 Peters's Rep.

"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 the 22d day of February, 1819.

The 2d article contains the cession, and enumerates its objects. The 8th 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, 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 2d 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 buildings 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 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 8th 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 the 24th 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 admissable. Without it, the title 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 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 persons 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 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 the 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. Elam, 2 Pet. 253, this court considered these words as importing contracts. 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,

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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 pre-existing titles. This seems to have been the object of the first legislation of Congress.

On the 8th of 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 the 22d of February, 1819.

*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 established in East and West Florida, whose jurisdiction extended to the trial of civil cases 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 2nd 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. Their session for East Florida was to terminate on the last of June in the succeeding year; but any claim not filed previous to the 31st of May in that year, to be void, and of none 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 the 30th of 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.

Extract from the opinion of the Supreme Court in the case of

Arredondo.

"It became, then, all important to ascertain what was granted by what was excepted. The king of Spain was the grantor, the treaty was his deed; the exception was made by him, and its nature and effect depended on his intention, expressed by his words in reference to the thing granted, and the thing refused, and excepted in and by the grant. The Spanish version was in his words, and expressed his intention; and, though the American version showed the intention of this government to be different, we cannot adopt it as the rule by which to decide what was granted, what excepted, and what reserved: the rules of law are too clear to be mistaken, and too imperative to be disregarded by this court. We must be governed by the clearly expressed and manifest intention of the grantor, and not the grantee in private, a fortiori in public grants. That we might not be mistaken in the intention or in the true meaning of Spanish words, two dictionaries were consulted, one of them printed in Madrid; and two translations were made of the 8th article, each by competent judges of Spanish, and both agreeing with each other, and the translation of each agreeing with the definition of the dictionaries. Quedran,' in Spanish, correctly translated, means shall remain: the verb quedar,' in French, 'rester;' Latin, manere,'' remanere;' and English remain,' in the present tense. In the English original the words are shall be,' words in the future. The difference is all important as to all Spanish grants. If the words of the treaty were, that all the grants of land shall remain confirmed,' then the United States, by accepting the cession, could assert no claim to these lands thus expressly excepted. The proprietors could bring suits to recover them without any action of Congress, and any question arising would be purely a judicial one." Shall be ratified,' makes it necessary that there should be a law ratifying them, or authorizing a suit to be brought; otherwise the question would be a political one, not cognizable by this court, as was decided in Foster and Elam vs. Nelson.

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"But, aside from this consideration, we find the words used in the Spanish sense as to the grants made after the 24th January, 1818, which are, by the same article in English, hereby declared and agreed to be null and void.' The ratification is in Spanish and English. The Spanish words in the Spanish version are, 'quedado and 'quedan,' in reference to the annulled grants: the English are 'have remained,'' do remain.' The principles of justice, and the rules of both law and equity, are too obvions not to require that, in