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ment of their liberty, property, and religion.

By the act

passed May 26th, 1824, the claimants of lands in Louisiana, under French or Spanish grants, were directed to present petitions, for inquiry into, and decision on, the validity of their titles, to the District Court of the State of Missouri; and claimants in the Territory of Arkansas were directed to present the like petitions to the superior court for that territory. The 2d section of the act provided, "That every petition which shall be presented under the provisions of this act, shall be conducted according to the rules of a court of equity, except that the answer of the district attorney of the United States shall not be required to be verified by his oath, and tried, without any continuance, unless for cause shown; and the said court shall have full power and authority to hear and determine all questions arising in said cause, relative to the title of the claimants, the extent, locality, and boundaries of the said claim, or other matters connected therewith, fit and proper to be heard and determined, and, by a final decree, to settle and determine the question of the validity of the title, according to the law of nations, the stipulations of any treaty, and proceedings under the same; the several Acts of Congress in relation thereto; and the laws and ordinances of the government from which it is alleged to have been derived; and all other questions properly arising between the claimants and the United States; which decree shall, in all cases, refer to the treaty, law, or ordinance, under which it is confirmed or decreed against; and the court may, at its discretion, order disputed facts to be found by a jury, according to the regulations and practice of the said court, when directing issues before the same court; and, in all cases, the party against whom the judgment or decree of the said district court may be finally given, shall be entitled to an appeal, within one year from its rendition, to the Supreme Court of the United States, the decision of which court shall be final and conclusive between the

18 Stat. at Large, 200, 201, 202.

parties; and, should no appeal be taken, the judgment or decree of the said district court shall, in like manner, be final and conclusive."

§ 285. The rules of determination thus established have become again important, both from the revival of the Act of 1824,' and the recent enactment of similar provisions for the adjustment of land claims in California.2

§ 286. At an early period in the course of the inquiries which arose under these laws, it became necessary for the Supreme Court of the United States to ascertain the meaning and effect of the 8th article of the treaty with Spain. If, on the one hand, the language of the article were to be construed as importing an act to be done by the United States, for the confirmation and ratification of grants made by the Spanish authorities in Florida, before the 24th of January, 1818, a question might arise whether the Acts of 1828, and 1824, directing an adjudication upon the claims of parties holding such grants in the courts of the United States, could be carried into effect, with reference to imperfect titles; for those provisions related to claims which had not been acted upon by Congress, and if a confirmation by the United States was necessary to a good title, such confirmation, being a legislative act, must precede any judicial action. But on the other hand, if the words of the treaty "shall be ratified and confirmed," were so construed as not to import the necessity of a future act of confirmation by the United States, in order to make any of the titles valid which rested upon grants of the Spanish authorities made before the cession, then the inquiry would be simply a judicial in

1 4 Stat. at Large, 52, 53. By an act passed June 17th, 1844, the provisions of the Act of 1824, which was limited to two years from its date, were revived and extended to the states of Missouri, Arkansas, and Louisiana, and to those parts of the states of Mississippi and Arkansas south of the 31st degree of north latitude, and between the Mississippi and Perdido rivers, for the term of five years.

2 See post.

vestigation, and an adjudication, under the Acts of 1828 and 1824, between two parties, both claiming to be owners of the land in controversy, namely, the claimant who made title from a grant of the Spanish authorities, on the one side, and the United States, who claimed the land as part of the public domain ceded by the treaty, on the other.

§ 287. In determining this question, the court recognised, as lying at the basis of the whole subject, the doctrine of the law of nations, that neither cession nor conquest touches the private property of individuals, situated within the ceded or conquered country. In either case, whether of conquest or of cession, the former sovereign gives place to the sovereign making the conquest or receiving the cession, and the latter assumes dominion over the country; but the rights of property of the inhabitants remain unchanged. Whatever was the property of the former sovereign, passes by the cession. or the conquest to the new government, and nothing more. This general doctrine was held, also, to be confirmed by the provisions of the treaty. It was manifest from the tenor of the 2d article, that the King of Spain undertook to cede to the United States only what belonged to him; lands which he had previously granted, were not his to cede; and consequently, the language of the 8th article was to be construed with reference to the manifest intention of the parties to cede and to receive only what the law of nations and the treaty itself must be supposed to contemplate.1

§ 288. Applying this principle to the construction of the 8th article, it was found that the treaty had been executed in duplicate originals, the one in English, and the other in Spanish; that the expression employed in the Spanish side

1 The United States v.. Arredondo, 6 Peters, 691; Same v. Percheman, 7 Peters, 51; Mitchel v. The United States, 9 Peters, 711; The United States v. Clarke, 8 Peters, 445; Delassus v. The United States, 9 Peters, 133; The United States v. Wiggins, 14 Peters, 334; Same v. Clarke, 16 Peters, 228.

of the treaty, corresponding to the English words, "shall be ratified and confirmed," imported that the grants "should remain ratified and confirmed;" and it was held, that both sides of the treaty ought to be so construed, as to reconcile its provisions to the unquestionable principles of the law of nations, which fixed the character of all property as it was at the time of the cession. It was considered, moreover,

1

1 United States v. Percheman, 7 Peters, 51, 88, and the cases above cited. In Percheman's case, Mr. Chief Justice Marshall said, "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 a 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 second article conforms to this general principle, 'His Catholic Majesty cedes to the United States, in full property and sovereignty, all the territories which belong to him, situated to the eastward of the Mississippi, by the name of East and West Florida.' A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The king cedes that only which belonged to him. Lands he had previously granted, were not his to cede. Neither party could so understand the cession. Neither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilized world. The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering at the same time, the lands and the people who inhabit them, would be neces sarily 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

that the provisions of the 8th article, which declared that "the owners in possession of such lands" who had not per

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 eighth article of the treaty, and the acts which have been passed by Congress for the ascertainment and adjustment of titles acquired under the Spanish government. That article in the English part of it is in these words: All the grants of land made before the 24th of January, 1818, by his Catholic Majesty, or by his lawful authorities, in the said territories ceded by his Majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his Catholic Majesty.'

"This article is apparently introduced on the part of Spain, and must be intended to stipulate expressly for that security to private property which the laws and usages of nations would, without express stipulation, have conferred. No construction which would impair that security further than its positive words require, would seem to be admissible. Without it, the titles of individuals would remain as valid under the new government as they were under the old; and those titles, so far at least as they were consummate, might be asserted in the courts of the United States, independently of this article.

"The treaty was drawn up in the Spanish as well as in the English language. Both are originals, and were unquestionably intended by the parties to be identical. The Spanish has been translated, and we now understand that the article, as expressed in that language, is, that the grants shall remain ratified and confirmed to the 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

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