United States v. Percheman.

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 *by the petitioner contains a less quantity than 3500 [*58 acres, to wit, but 2000 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 the 14th of 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 the 12th 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 8th December 1815.

The amended petition also stated, that the sale made by him *of the tract of land described in the original petition, was a conditional [*59 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 evi

United States v. Percheman.

dence; 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 the 26th of May 1830, and of the late treaty between the United States and Spain, it is confirmed." The United States appealed to this court.

The case was argued by Taney, Attorney-General, for the United States; and by White, for the appellee.

*For the United States, it was contended:-1. That the copy of *60] the grant and other proceedings produced by the petitioner, were not admissible in evidence, but the original papers ought to have been produced. 2. That the court had not jurisdiction of the case, under the act of congress of May 26th, 1830; the claim in question having been finally acted upon and rejected by the register and receiver. 3. If the court had jurisdiction of the claim, the suit could be maintained only by Francis P. Sanchez, to whom Percheman had conveyed bis interest; and the court erred in confirming and decreeing the land to Percheman. 4. That if these points are against the United States, the authority exercised by the Spanish governor in making the grant to the appellee, was not within the royal order of the king of Spain.

1. As to the first point, the admissibility in evidence of certified copies of the grant and other proceedings, the attorney-general cited the act of congress of May 26th, 1824, § 4; of May 23d, 1828; and the Laws of Florida of July 3d, 1823, § 4.

2. As to the second point, that the court had not jurisdiction of the case, under the act May 26th, 1830, the claim having been finally acted upon and rejected; he cited the fourth section of that law. The acts cf congress made the decision of the commissioners, and afterwards of the register and receiver, final, in all cases under 3500 acres. For the correctness of this position, he referred to the various provisions of the laws on the subject of the claims to lands in Fiorida, which are found in the 1st, 4th, 5th and 6th sections of the act of May 8th, 1822; the 2d section of the act of March 3d, 1823; the 4th and 5th sections of the act of February 8th, 1827; and the 4th and 6th sections of the act of May 23d, 1828. The language and provisions of all these laws, he contended, sustain the position, that the decision of the register and receiver upon the claim of the appellee was final, as his claim was within 3500 acres. The act of congress of May 26th, 1824, gave jurisdiction to decide on all claims to lands in Missouri. In Arkansas, the jurisdiction was confined to claims not exceeding one league *square. No argument can, therefore, be drawn in

*61]

United States v. Percheman.

this construction.

favor of the jurisdiction in Florida, from that given in Missouri. The restrictive words in the act of 1828, are not in the act of 1824; and their introduction shows, that the legislature, warned by experience, did not mean to give the same jurisdiction which it had given before. Nor did the act of 26th of May 1830, mean to extend the jurisdiction beyond that given by the law of 1828. It uses strong words of restriction. It refers to the jurisdiction given by the law of 1828, and not that given by the act of 1824. It is said, that the act of 1830, § 4, would be nugatory, according to If that were the case, it would not alter the plain meaning of the words. The legislature intended to provide for any cases which, in the various legislation on that subject, might, by possibility, be found not to have been finally acted on, and to supersede the necessity of further legislation. The fact that no such case existed, and that there is nothing for it to operate on, and that there were no cases brought to the view of the legislature, for which this section provides, cannot affect its construction. Congress meant to provide for any unforeseen contingency, and any cases unknown or overlooked, which had not been finally acted on.

3. As to the third point, that if the court had jurisdiction, the claim could only be maintained by Francis P. Sanchez, it was argued, that the provisions of the act of 1824, required that the party having title must file the petition; the language of the section which gives the power to the commissioners to decide is, "to hear and determine all questions relative to the title of the claimants." Thus, the title under which a claimant presents himself must be exhibited, and the decision of the commissioners, and afterwards of the register and receiver, must be upon the title. The conveyance of the appellee to Sanchez was absolute; it gave him all the title and rights derived from the grant of the Spanish governor; it made him the legal owner of the tract of land described in the grant; and thus, by him only, or by those holding under him, could a petition be presented, under the provisions of the act of congress. The petition of the appellee was a suit in chancery against *the United States, by a person who claims the title against every one else, and he must show his title, and establish it as a complete title, before he can be relieved. Act of congress of 1824, § 6; Act of 1830, § 4. How can land be decreed to one, in a court of chancery, when it appears to the court, that he is not entitled to it, and that another is the owner of it?

[*62

4. To sustain the position that Governor Estrada was not authorized by the royal order of the king of Spain to make the grant to the appellee, it was argued, that the powers of the governor did not extend to the issuing of grants for so large a tract of land as that claimed by the petitioner in this case. The royal order of March 29th, 1815 (White's collection of Land Laws 248), the letter of Governor Kindelan to the captain-general of Cuba (White's Collection of Land Laws 247), were cited. Also, United States v. Arredondo, 6 Pet. 727-8.

White, for the appellee.-The appellee, who was petitioner in the court below, obtained a decree of confirmation to his claim of two thousand arpens of land in East Florida. From that decree, the United States have appealed, and the grounds upon which that appeal was taken, have been explained by the attorney-general. This case is one of great importance, because it

United States v. Percheman.

involves a principle common to a number of others, and more especially, because the honor and good faith of the government of the United States.

The title set up by the petitioner, an officer in the service of the king of Spain, is admitted to be genuine. It was made by the governor of East Florida, in pursuance of a royal order promulgated in 1815. It was made to one of the officers, specially designated as a person intended to be benefited by the royal bounty which dictated the ordinance. The grant was made as a remuneration for services rendered by the claimant to the province, at a time of great peril, occasioned by external invasion and internal insurrection. The grant was made prior to the limitation contained in the and was presented to the commissioners *appointed to ascer*63] treaty, tain claims and titles to land in East Florida. Upon this state of the facts presented on the record, three points will be submitted on the part of the appellee to the consideration of the court, and relied upon in support of the decree of the court below. 1. This title was confirmed by the treaty 'of the 22d of February 1819. 2. It is not competent for congress to pass any law authorizing any tribuna! created under its authority to invalidate such a title. 3. By the act of 1830, this court has jurisdiction of the case. The first point involves the construction of the treaty. Whether is the 8th article executory or executed? This requires an examination into the article itself, and the negotiations which led to it. By the treaty of the 22d of February 1819, Spain ceded the Floridas to the United States. The latter acquired these provinces and their appendages in full sovereignty, including all public grounds and edifices, and all vacant lands which were not private property. Article 2d. It was stipulated between the high contracting parties, that all grants made by his Catholic Majesty, or his lawful authorities, before the 24th of January 1818, in the ceded territory, should remain confirmed and acknowledged, in the same manner as they would have been, if the provinces had continued under the dominion of his Catholic Majesty. Article 8th. Further time was given to proprietors who had been prevented from fullfiling the conditions of their grants, by the recent circumstances of the Spanish monarchy, and the revolutions in Europe. The inhabitants of the ceded territory were protected in all their rights, and became citizens of the United States. Articles 5th and 6th.

Congress has, from time to time, adopted various legislative provisions for the purpose of preserving the national faith, separating private property from the public domain, and securing the individual titles intended to be protected by the treaty. Commissioners were appointed to examine landclaims, with authority to confirm grants not exceeding a certain size, and *to report those above that limit to congress. When these commis*64] sions were dissolved, similar powers were vested in the register and receiver of the land offices. In some instances, an option was given to the holders of certain grants, to select a league square within their respective concessions, upon condition of surrendering the residue by deed to the United States. Through these and other means, the titles of the smaller proprietors have, for the most part, been definitely adjusted, and the larger claims alone remain for settlement. These, congress, by act of 23d May 1828, authorized the courts of the territory to hear and determine, with an appeal to the supreme court of the United States. Several cases have been adjudicated in the courts below. Decisions have been pronounced, not

United States v. Percheman.

easily reconcilable, if not at total variance with each other; appeals have been taken, and the questions discussed are now before this court, whose judgment is deeply interesting, not merely to the parties on the record, but the numerous other suitors whose rights, or supposed rights, depend on similar principles.

One or two considerations of a general nature may here, it is presumed, be not inappropriately introduced. Those who represent the interests of -the United States in some of the cases before the court, have thought proper to assume, as one ground of defence, that the confirmation or rejection of these titles is matter essentially of executive or legislative cognisance, and addresses itself exclusively to their discretion. The question, they urge, is a political, not a judicial one, and is equally unfit to be submitted to, and incapable of being decided by, a court. Waiving all considerations of the hardship and mockery of referring claimants under a treaty to a tribunal incompetent to afford them redress-forbearing to touch on the indecorum of a construction which attributes to congress an act of futile or deceptive legislation-it will be enough to say, that this interpretation, it is believed, has been once considered and rejected. Soulard's Case, 4 Pet. 511. The argument, indeed, amounts to little more than this-we have bound ourselves to do what Spain would have done. What that is, we know not; and having referred the question to those who cannot decide it, we will, therefore, do nothing. *Perfidy often wears the mask of subtlety, as well from shame as cowardice; but it is seldom that the counsel[*65 lors of bad faith, if they condescend to argue at all, are satisfied with a defence so feeble.

The act of congress requires the court to examine and decide upon these claims, in conformity with the law of nations, the treaty, and the laws of Spain. It is proposed to consider the subject, in reference to each of these defence so several rules of decision.

1. The law of nations. It is conceived, that, according to the mitigated. rights of war, as now well understood and settled by international law, the lands of individuals are safe, even after conquest, Vatt. lib. 3, c. 13, § 200; much less, can a cession, of itself, destroy private rights. Absolute or perfect grants, it is believed, would be protected by the law of nations, independent of the treaty. Some legislative recognition of their validity might indeed be necessary to sustain a suit upon them in our courts, but the national obligation to respect them could hardly be denied. It is in behalf of concessions or inchoate grants, that the stipulations of the treaty were most requisite and important. To the acts of the Spanish government in this respect, not merely the authority of res adjudicata, such as belongs to all foreign sentences and decrees, was given by the treaty; its effect was to make binding on us, all that would have been valid against Spain; and to oblige us to complete whatever she, in good faith, had begun, but left unfinished. A detailed examination of the maxims of customary international law, as they would bear upon the rights of proprietors of land in Florida, is not called for, in the presence of an express treaty stipulation; and in referring to the law of nations as a rule of decision for the courts, congress perhaps had more expressly in view such part of it as relates to the interpretation of treaties. This will be more conveniently considered under another head.