Florida Treaty. to look to the original claim for damages and in- | extent," &c.; thus conforming exactly to the juries against Spain itself; and it is wholly im- universally received law of nations. Ibid. material, who is the legal or equitable owner of the claim, provided he is an American citizen. Comegys et al. v. Vasse, 1 Peters, 212. 6. After the validity and amount of the claim has been ascertained by the award of the commissioners, the rights of the claimant to the fund, which has passed into his hands and those of others, are left to the ordinary course of judicial proceedings, in the established courts of justice. Ibid. 212. 7. The treaty with Spain recognised an existIng right in the aggrieved parties to compensation; and did not, in the most remote degree, turn upon the notion of donation or gratuity. It was demanded by our government as matter of right, and as such was granted by Spain. Ibid. 217. 8. Even in cases of conquest, it is very unusual for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right, which is acknowledged and felt by the whole civilized world, would be outraged, if private property should be generally confiscated, and private rights annulled on a change in the sovereignty of the country, by the Florida treaty. The people change their allegiance, their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property remain undisturbed. Had Florida changed its sovereign by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change. It would have remained the same as under the ancient sovereign. United States v. Percheman, 7 Peters, 51. 9. The language of the second article of the treaty between the United States and Spain, of 22d February, 1819, by which Florida was ceded to the United States, conforms to this general principle. lbid. 12. If the English and Spanish part can, with out violence, be made to agree, that construction which establishes this conformity ought to prevail. Ibid. 13. No violence is done to the language of the treaty by a construction which conforms the English and Spanish to each other. Although the words "shall be ratified and confirmed," are properly words of contract, stipulating for some future legislation, they are not necessarily so. They may import that "they shall be ratified and confirmed" by force of the instrument itself. When it is observed that in the counterpart of the same treaty, executed at the same time, by the same parties, they are used in this sense, the construction is proper, if not unavoidable. Ibid. 14. In the case of Foster and Elam v. Neilson, 2 Peters, 253, the supreme court considered those words importing a contract. The Spanish part of the treaty was not then brought into view, and it was then supposed there was no variance between them. It was not supposed that there was even a formal difference of expression in the same instrument, drawn up in the language of each party. Had this circumstance been known, it is believed it would have produced the construction which is now given to the article. Ibid. 15. By the law of nations, the inhabitants, citizens, or subjects of a conquered or ceded country, territory, or province, retain all the rights of property which have not been taken from them by the orders of the conqueror; and this is the rule by which we must test its effi cacy according to the act of congress, which we must consider as of binding authority. United States v. Clarke, 9 Peters, 168. 16. A treaty of cession is a deed or grant by one sovereign to another, which transferred nothing to which he had no right of property, and only such right as he owned, and could convey to the grantee. By the treaty with Spain, the United States acquired no lands in Florida to 10. The eighth article of the treaty must be which any person had lawfully obtained such a intended to stipulate expressly for the security right, by a perfect or inchoate title, that this to private property, which the laws and usages court could consider it as property under the of nations would, without express stipulation, second article, or which had, according to the have conferred. No construction which would stipulations of the eighth article of the treaty, impair that security, further than its positive been granted by the lawful authorities of the words require, would seem to be admissible.king: which words, grants or concessions were Without it, the titles of individuals would remain to be construed in their broadest sense, so as to as valid under the new government as they were comprehend all lawful acts which operated to under the old. And those titles, so far at least transfer a right of property, perfect or imperfect. as they were consummated, might be asserted Ibid. in the courts of the United States, independently of this article. Ibid. 11. The treaty was drawn up in the Spanish as well as in the English languages. Both are original, and were unquestionably intended by the parties to be identical. The Spanish has been translated; and it is now understood that the article expressed in that language is, that "the grants shall remain ratified and confirmed to the persons in possession of them, to the same 17. The effect of the clauses of the confirma tion of grants made was, that they confirmed them presently on the ratification of the treaty, to those in possession of the lands; which was declared to be, that legal seisin and possession which follows title, is co-extensive with the right, and continues till it is ousted by an actual adverse possession, as contradistinguished from residence and occupation. Ibid. 18. The United States, by accepting the ces Florida Land Titles. sion under the terms of the eighth article, and the ratification by the king, with an exception of the three annulled grants to Allegon, Punon Rostro, and Vargas, can make no other exceptions of grants made by the lawful authorities of the king. Ibid. was enough that they should show a performance of the condition cy pres. Ibid. 24. In the construction of the Florida treaty, it is admitted that the United States succeeds to all those equitable obligations which we are to suppose would have influenced his Catholic majesty, to secure their property to his subjects, and which would have been applied by him in the construction of a conditional grant, to make it absolute; and further, that the United States must maintain the rights of property under it, by applying the laws and customs by which those rights were secured, before Florida was ceded; or by which an inchoate right of probeen adjudicated by the Spanish authority to have become a perfect right. United States v. Mills' Heirs, 12 Peters, 215. 19. The meaning of the words "lawful authorities," in the eighth article, or "competent authorities" in the ratification, must be taken to be, "by those persons who exercised the granting power by the authority of the crown." The eighth article expressly recognises the existence of these lawful authorities in the ceded territories, designating the governor or intendant, as the case might be, as invested with such autho-perty would, by those laws and customs, have rity which is to be deemed competent till the contrary is made to appear. Ibid. 20. By "the laws of Spain" is to be understood the will of the king expressed in his orders, or by his authority, evidenced by the acts themselves; or by such usage and customs in the province as may be presumed to have emanated from the king, or to have been sanctioned by him, as existing authorized local laws. Ibid. 21. In addition to the established principles heretofore laid down by this court as the legal effect of an usage or custom, there is one which is peculiarly appropriate to this case. The act of congress giving jurisdiction to this court to adjudicate on these causes, contains this clause in reference to grants, &c., "which was protected and secured by the treaty, and which might have been perfected into a complete title, under and in conformity to the laws, usages and customs of the government under which the same originated." This is an express recognition of any known and established usage or custom in the Spanish provinces, in relation to the grants of land, and the title thereto, which brings them within a well established rule of law: that a custom or usage saved and preserved by a statute, has the force of an express statute, and shall control all affirmative statutes in opposition, though it must yield to the authority of negative ones, which forbid an act authorized by a custom or usage thus saved and protected; and this is the rule by which its efficacy must be tested, according to the act of congress, which must be considered of binding authority. Ibid. 22. By the eighth article of the treaty ceding Florida to the United States, the same time is allowed to the owners of land granted under the authority of Spain, to fulfil the conditions of their grants, after the date of the treaty, as was limited in the grants. It has been decided by this court, in the case of Arredondo, that as to individual rights, the treaty is to be considered as dated at its ratification. United States v. Sibbald, 10 Peters, 313. 23. It has been decided, in Arredondo's case, that that provision of the treaty as to the performance of the conditions in grants, is not confined to owners of land by occupancy or residence; but extends to persons who have a legal seisin and possession of land, in virtue of a grant; and that, in the situation of the province, and the claimants to land at the time of the cession, it FLORIDA LAND TITLES. 1. After the acquisition of Florida by the United States, in virtue of the treaty with Spain, of 22d of February, 1819, various acts of congress were passed for the adjustment of private land claims, within the ceded territory. The tribunals authorized to decide on them were not authorized to settle any which exceeded a league square; on those exceeding that quantity, they were directed to report, especially, their opinion, for the future action of congress. The lands embraced in the larger claims were defined by surveys, and plats retained; these were reserved from sale, and remained unsettled until some resolution should be adopted for a final adjudication of them, which was done by the passage of the law of the 22d May, 1828. By the sixth section, it was provided, "that all claims to land within the territory of Florida, embraced by the treaty, which shall not be finally decided and settled under the provisions of the same law, containing a greater quantity of land than the commissioners were authorized to decide, and above the amount confirmed by the act, and which have not been reported as antedated, or forged, shall be received and adjudicated by the judges of the superior court of the district in which the land lies, upon the petition of the claimant, according to the forms, rules, conditions, restrictions and regulations prescribed to the district judge, and to the claimants, by the act of 26th May, 1824. By a proviso, all claims annulled by the treaty, and all claims not presented to the commissioners, &c., according to the acts of congress, were excluded. United States v. Arredondo et al., 6 Peters, 706. 2. The grant of the king of Spain to F. M. Arredondo and Son, for land at Alachua, in Florida, gave a valid title to these claimants under the grant; according to the stipulations under the treaty between the United States and Spain, of 1819, the laws of nations, of the United States, and of Spain, a concession or condition becomes absolute, where the condition is performed. Ibid. 691. 3. The original concession by governor Coppinger, on the petition of George J. F. Clarke, FLORIDA LAND TITLES. Florida Land Titles. was made on the 17th of December, 1817, of | of entry on lands which is not common to his 4. The validity of concessions of land, by the authorities of Spain, in East Florida, is expressly recognised in the Florida treaty, and in the several acts of congress. Ibid. ment. 5. The eighth article allows the owners of land the same time for fulfilling the conditions of their grants from the date of the treaty, as is allowed in the grant from the date of the instruAnd the act of the 8th of May, 1822, requires every person claiming title to lands under any patent, grant, concession, or order of survey dated previous to the 24th of January, 1818, to file his claim before the commissioners, appointed in pursuance of that act. All the subsequent acts on the subject, observe the same language; and the titles under these concessions have been uniformly confirmed, when the tract did not exceed a league square. Ibid. 6. A claim to lands in East Florida, the title to which was derived from grants by the Creek and Seminole Indians, ratified by the local authorities of Spain, before the cession of Florida by Spain to the United States, confirmed. Mitchel et al. v. The United States, 9 Peters, 711. 7. It was objected to the title claimed in this case, which had been presented to the superior court of Middle Florida, under the provisions of the acts of congress for the settlement of land claims in Florida, that the grantees did not acquire, under the Indian grants, a legal title to the land. Held, that the acts of congress submit these claims to the adjudication of this court as a court of equity; and those acts, as often and uniformly construed in its repeated decisions, confer the same jurisdiction over imperfect, inchoate and inceptive titles, as legal and perfect ones, and require the court to decide by the same rules on all claims submitted to it, whether legal o equitable. Ibid. 8. In the case of the United States v. Arredondo, 6 Peters, 691, the lands granted had been in the possession and occupation of the Alachua Indians, and the centre of the tract was an Indian town of that name. But the land had been abandoned, and before any grant was made by the intendant, a report was made by the attorney and surveyor-general on a reference to them, finding the fact of abandonment; on which it was decreed that the lands had reverted to, and become annexed to the royal domain. Ibid. 9. By the common law, the king has no right 10. The United States have acted on the same 11. One uniform rule seems to have prevailed 12. Individuals could not purchase Indian lands without permission or license from the crown, colonial governors, or according to the rules prescribed by colonial laws; but such purchases were valid with such license, or in conformity with the local laws; and by this union of the perpetual right of occupancy with the the license, the title of the purchaser became ultimate fee, which passed from the crown by complete. Ibid. 13. Indian possession or occupation was considered with reference to their habits and modes of life; their hunting grounds were as much in their actual possession as the cleared fields of the whites; and their rights to its exclusive enjoyment in their own way, and for their own purposes, were as much respected, until they abandoned them, made a cession to the governeither case their rights became extinct, the lands ment, or an authorized sale to individuals. In could be granted disencumbered of the right of Florida Land Titles. their lands according to the right of property with which they possessed them, were adopted by the United States, who thus became the pr occupancy, or enjoyed in full dominion by the purchases from the Indians. Such was the tenure of Indian lands by the laws of Massachusetts, Connecticut, Rhode Island, New York, New Jer-tectors of all the rights they had previously ensey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, and Georgia. Ibid. 14. Grants made by the Indians at public councils, since the treaty at Fort Stanwick's, have been made directly to the purchasers, or to the state in which the land lies, in trust for them, or with directions to convey to them; of which there are many instances of large tracts so sold and held, especially in New York. Ibid. 15. It was an universal rule, that purchases made at Indian treaties, in the presence, and with the approbation of the officer under whose direction they were held by the authority of the crown, gave a valid title to the lands; it prevailed under the laws of the states after the revolution, and yet continues in those where the right to the ultimate fee is owned by the states, or their grantees. It has been adopted by the United States; and purchases made at treaties held by their authority, have been always held good by the ratification of the treaty, without any patent to the purchasers from the United States. This rule in the colonies was founded on a settled rule of the law of England, that by his prerogative the king was the universal occupant of all vacant lands in his dominions, and had the right to grant them at his pleasure, or by his authorized officers. Ibid. joyed, or could of right enjoy under Great Brilain or Spain, as individuals or nations, by any treaty to which the United States thus became parties in 1803. Ibid. 18. The Indian right to the lands as property was not merely of possession, that of alienation was concomitant; both were equally secured, protected, and guarantied by Great Britain and Spain, subject only to ratification and confirmation by the license, charter, or deed from the governor, representing the king. Such purchases enabled the Indians to pay their debts, compensate for their depredations on the traders resi dent among them to provide for their wants; while they were available to the purchasers as payment of the considerations which at their expense had been received by the Indians. It would have been a violation of the faith of the government to both, to encourage traders to settle in the province, to put themselves and property in the power of the Indians, to suffer the latter to contract debts, and when willing to pay them by the only means in their power, a cession of their lands, withhold an assent to the purchase, which by their laws or municipal regulations was necessary to vest a title. Such a course was never adopted by Great Britain in any of her colonies, nor by Spain in Louisiana or Florida. Ibid. 16. When the United States acquired and took possession of the Floridas, the treaties 19. The laws made it necessary, when the which had been made with the Indian tribes Indians sold their lands, to have the deeds prebefore the acquisition of the territory by Spain sented to the governor for confirmation. The and Great Britain, remained in force over all the sales by the Indians transferred the kind of right ceded territory as the laws which regulated the which they possessed; the ratification of the relations with all the Indians who were parties sale by the governor must be regarded as a reto them, and were binding on the United States, linquishment of the title of the crown to the by the obligation they had assumed by the purchaser, and no instance is known where perLouisiana treaty, as a supreme law of the land, mission to sell has been "refused, or of the rewhich was inviolable by the power of congress.jection of an Indian sale." Ibid. They were also binding as the fundamental law of Indian rights, acknowledged by royal orders, and municipal regulations of the province, as the laws and ordinances of Spain in the ceded provinces, which were declared to continue in force by the proclamation of the governor in taking possession of the province, and by the acts of congress, which assured all the inhabitants of protection in their property. It would be an unwarrantable construction of these treaties, laws, ordinances, and municipal regulations, to decide that the Indians were not to be maintained in the enjoyment of all the rights which they could have enjoyed under either, had the province remained under the dominion of Spain. It would be rather a perversion of their spirit, meaning, and terms, contrary to the injunction of the law under which the court acts, which makes the stipulations of any treaty, the laws and ordinances of Spain, and these acts of congress, so far as either apply to this case, the standard rules for its decision. Ibid. 17. The treaties with Spain and England before the acquisition of Florida by the United States, which guarantied to the Seminole Indians 20. In the present case the Indian sale has been confirmed with more than usual solemnity and publicity; it has been done at a public council and convention of the Indians conform ably to treaties, to which the king was a party, and which the United States adopted, and the grant was known to both parties to the treaty of cession. The United States were not deceived by the purchase, which they knew was subject to the claim of the petitioner, or those from whom he purchased; and they made no stipu lation which should put it to a severer test than any other; and it was made to a house which, in consideration of its great and continued services to the king and his predecessor, had deservedly given them high claims as well on his justice as his faith. But if there could be a doubt that the evidence in the record did not establish the fact of a royal license or assent to this purchase as a matter of specific and judicial belief, it would be presumed as a matter of law arising from the facts and circumstances of the case, which are admitted or unquestioned. Ibid. 21. As decided by the supreme court, the law FLORIDA LAND TITLES. Florida Land Titles. presumes the existence in the provinces of an officer authorized to make valid grants; a fortiori, to give license to purchase and to confirm ; and the treaty designates the governor of West Florida as the proper officer to make grants of Indian lands by confirmation, as plainly as it does the governor of East Florida to make original grants, or the intendant of West Florida to grant royal lands. A direct grant from the precrown, of lands in a royal haven may be sumed on an uninterrupted possession of sixty years, or a prescriptive possession of crown lands for forty years. Ibid. exercised the right of granting lands, while in 26. The grants of land in the possession of 27. The supreme court cannot attach any condition to a grant of absolute property in the whole of the land. This grant was made by the governor of East Florida in absolute pro22. The length of time which brings a given perty, with a promise of a title in form. He was case within the legal presumption of a grant, the exclusive judge of the conditions to be imcharter, or license, to validate a right long en-posed on his grant, and of their performance. joyed, is not definite, depending on its peculiar The United States v. Segui, 10 Peters, 306. circumstances. Ibid. 23. Juan Percheman claimed two thousand acres of land lying in the territory of Florida, by virtue of a grant from the Spanish governor, made in 1815. His title consisted of a petition presented by himself to the governor of East Florida, praying for a grant of two thousand acres, at a designated place, in pursuance of the royal order of the 29th of March, 1815, granting lands to the military who were in St. Augustine during the invasion of 1812 and 1813; a decree by the governor, made 12th December, 1815, in conformity to the petition, in absolute property, under the authority of the royal order, a certified copy of which decree, and of the petition, was directed to be issued to him from the secretary's office, in order that it may be to him in all events an equivalent of a title in form; a petition to the governor, dated 31st December, 1815, for an order of survey, and a certificate of a survey having been made on the 20th of August, 1819, in obedience to the same. This claim was presented, according to law, to the register and receiver of East Florida, while acting as a board of commissioners to ascertain claims and titles to lands in East Florida. The claim was rejected by the board, and the fol"In the melowing entry made of the same. morial of the claimant to this board, he speaks of a survey made by authority in 1829. If this had been produced, it would have furnished some support for the certificate of Aguilar. As it is, we reject the claim." Held, that this was not a final action on the claim, in the sense those words are used in the act of the 26th of May, 1830, entitled "an act supplementary to," &c. United States v. Percheman, 7 Peters, 51. 24. A grant of land in Florida within the Indian boundary, by the governor acting under the crown of Spain before the cession of Florida to the United States, was confirmed to the grantee, by the decree of the judge of the eastern district of Florida. The decree was affirmed on appeal. The United States v. Fernandez, 10 Peters, 303. 25. The subject of grants of land within the Indian boundary, which had not by any official act been declared a part of the royal domain, was fully and ably considered in the case of Johnson v. M'Intosh, 8 Wheat. 543; 5 Cond. Rep. 515. Every European government claimed and 28. A grant of land by the governor of East Florida, in consideration of services to the Spanish government, made before the cession of the territory of Florida to the United States, confirmed. The United States v. Chaires, 10 Peters, 308. 29. Under a grant of the governor of Florida, prior to the cession of the same to the United States, of sixteen thousand acres of land, for the purpose of erecting a water-mill, a survey of five hundred and twenty acres was made; and at another place, a survey of fifteen thousand six hundred and thirty acres was also made. The supreme court held, that the first survey of five hundred and twenty acres was valid, and that the survey of fifteen thousand four hundred and eighty acres was invalid; but that the grantee has a title to fifteen thousand four hundred and eighty acres of vacant land, which he has a right to have surveyed, adjoining the survey of five hundred and twenty acres. The United States v. Seton, 10 Peters, 309. 30. Under a Spanish grant of five miles square, ten thousand acres were surveyed at one place, and six thousand acres were surveyed at another place, as the whole quantity of ungranted land could not be found together. The grant was confirmed. The United States v. Sibbald, 10 Peters, 313. 31. A grant of land was made by governor Coppinger, in June, 1828. The grant was made to the appellee, on his stating his intention to build a saw mill. The decree grants to the petitioner, "license to construct a water saw mill, on the creek known by the name of Pottsburg, bounded by the lands of Strawberry Hill, and this tract not being sufficient, I grant him the equivalent quantity in Cedar Swamp, about a mile east of M'Queen's mill, but with the precise condition, that, as long as he does not erect said machinery, this grant will be considered null, and without value nor effect until that event takes place; and then, in order that he may not receive any prejudice from the expensive expenditures which he is preparing, he will have the faculty of using the pines and other trees comprehended in the square of five miles, or the equivalent thereof, which five miles are granted to him in the mentioned place, the avails of which he will enjoy without any defalcation whatever." By the Court: -The judge of the |