[United States v. Percheman.] their merchants, and to secure themselves against the annoyance they must naturally expect from Florida, in the hands of an enemy, or a false or feeble neutral. It is notorious that for more than a century this territory had been a constant source of injury, jealousy, and vexation to the adjoining colonies and states. The colony of Georgia was founded as a barrier against the encroachments of the Spaniards; and the refuge and encouragement afforded by the latter to absconding slaves, hostile Indians, and other incendiaries, was a continued cause of complaint, from the settlement of Carolina to the Seminole campaign. In examining the interests and duties of the United States in connexion with this subject, it is not as landed proprietors alone that we must regard them. The rage for new settlements, indeed, makes this the chief point among the people, and greatly increases the prejudices against the large grants; but the court is far above the contagion of their example. To consider the cession of Florida merely as a land-jobbing transaction, would be doing great injustice to the liberal and enlightened policy which sought this valuable acquisition, with steady calmness, through so long a course of evasion and delay. Yet its value even in that point of view is not unworthy of notice. Thirty-five millions and a half of acres, of which up to the 30th of June, 1828, but little more than a million and a half had been granted or sold, (Reports of Committees, H. R. No. 95, 2d session, 20th congress), will surely, after making a most liberal allowance for the satisfaction of unsettled land claims, more than refund to us the five millions paid to our own merchants. Computing but thirty millions at the minimum price to which it is proposed to reduce the refuse lands, the United States will receive back their principal from the soil, and obtain the sovereignty for nothing. It is admitted that, in the cession of a province, the disposition of the inhabitants and their effects is a question of policy between the parties. To divest them of their rights of property is, however, in modern times, an unheard of cruelty. Usually the option is allowed them of becoming subjects of the new government, [*67 or of selling their estates, and removing within a specified period. Such were the terms of cession of this very province from Spain to Britain in 1763; and from Britain to Spain twenty years afterwards. It will be borne in mind by the court that population rather than land is the want of the United States; that their policy as to naturalization is as liberal as that which the wisest modern philosopher has praised in the greatest of the ancient republics; and that sovereignty, not soil, was the great motive for the acquisition. Our government, it may safely be affirmed, neither contemplated the expulsion of the ancient inhabitants, nor any injury to their property. The terms held out in the treaty ceding Louisiana, as well as that by which Florida was acquired, show that the United States never intended to grasp a barren sceptre, and wave it over a dispeopled territory. The inhabitants were made citizens. The province was to become a state. Can it be imagined that any rational go [United States v. Percheman.] vernment would act so unwisely, as to receive into their society a large body of foreigners, endow them with civil rights and political power; and, after rendering them disaffected, by stripping them of their property; leave to these malcontents the protection of an extensive, important, and exposed frontier? Many of the motives which must have operated on Spain are equally obvious. She naturally wished to extinguish demands, the justice of which had been admitted, while their satisfaction had been evaded until all the arts of procrastination were exhausted. She might desire to get rid of a useless and expensive appendage; and she must have foreseen that it would probably be wrested from her as an indemnity, if she trifled much longer with our patience. But, in yielding up the inhabitants with the territory, she would naturally stipulate most favourably for the people she was about to surrender. She did not intend to sacrifice them. Their fidelity to her in every vicissitude; the temptations by which they had been assailed; the invasions to which they had been exposed; their sufferings, their constancy, their very helplessness, all pleaded powerfully in their favour. In the eighth article, two parties were stipulating for the *se*68] curity and advantage of a third, whom both had the strongest reasons to cherish and protect. It is submitted, therefore, with some degree of confidence, that, so far as the motives and policy of the parties afford a key to the meaning of their words, the construction most favourable to the claimants is permitted to, nay, is enjoined upon the court. Before proceeding to examine the language of the treaty, a few observations on the rules of interpretation may, perhaps, be pardoned. Jurists generally admit that all grants, contracts, and stipulations are to be taken most strongly against the grantor. Cooper's Justinian, in note, 601. The words of the party promising are to be regarded rather than those of the party to whom the promise is made. Vattel, b. 2, c. 17, sec. 267. Other general rules are to be found in the works of the most esteemed publicists, and must be familiar to the court. Grotius, b. 2, ch. 16, p. 136. Vattel, b. 2, ch. 17, sec. 270. Among the rest, that interpretation which is drawn from the reason of the act is strongly and safely recommended. Vattel, b. 2, c. 17, sec. 287. A special rule of construction has, moreover, been deduced from the character of the stipulation itself. Hence the distinction between things favourable and things odious-a distinction recognized by Grotius and Vattel. Grotius, b. 2, ch. 16, sec. 10, p. 148. Vattel, b. 2, ch. 17, sec. 300, 301, 303. The difference between the former, and mere acts of liberality prejudicial to the sovereign, is illustrated by the last named author, (Vattel, b. 2, ch. 17, sec. 310), in such a manner as leaves no doubt to which class the provisions of the eighth article belong. What, indeed, can be more clearly entitled to rank among things favourable than engagements between nations securing the private property of faithful subjects, honestly acquired under a government which is on the eve of relinquishing their allegiance, and confided to [United States v. Percheman.] the pledged protection of that country which is about to receive them as citizens? [*69 This brings us to the words of the treaty. There is a difference between the English and the Spanish versions of the eighth article Both are equally originals, but surely the justice and liberality of the United States will extend to the claimants the full benefit of either. The first difference is in rendering "concesiones de terrenos" as grants of land. Concesiones, it is apprehended, is a term much broader than grants, and comprehends all which we, in the technical language of our land laws, might call entries or warrants of survey or location. The substitution of lawful, in the English, for legitimos, in the Spanish, will be commented on in another place. The residue of the clause, that those grants shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid, &c., is by no means equivalent to the Spanish phraseology. The latter, fairly rendered, is to this effect: "All concessions of lands made by his catholic majesty, or by his legitimate authorities, before the 24th January, 1818, in the aforesaid territories, which his majesty cedes to the United States, shall remain confirmed and acknowledged to the persons in possession of them (i. e. the concessions), in the same manner that they would have been if the dominion of his catholic majesty over these territories had continued." The difference between declaring that these grants shall be ratitified and confirmed to the persons in possession of the lands, to the same extent that the same grants would have been valid, &c., and saying that all concessions of land shall remain confirmed and acknowledged to the persons in possession of them (i. e. the title papers), in the same manner that they would have been, &c., is sufficiently obvious and important. The sense is materially different. The English side of the treaty leaves the ratification of the grants executory-they shall be ratified; the Spanish, executed-they shall continue acknowledged and confirmed, quedaran artificados. Quedan signifies remain or continue, and in this sense is used in the last clause of the same article-quedan anuladas y de ningun valor, remain null and of no effect. In the English, possession refers to the lands; in the Spanish, to the grants. The relative ellas agrees with the antecedent concesiones; if it referred to terrenos, the relative would have been ellos. No word equivalent to recent is to be found in the Spanish. It has been supposed, with little reason, that the eighth article might be interpreted to confer a discretion, rather than impose an obligation on the American government. It is one of the admitted rules of construction, that interpretations which lead to an absurdity, or render an act null, are to be avoided. Vattel, b. 2, ch. 17, sec. 282, 304. [*70 The king of Spain can annul a grant made by himself without any allegation of surprise or fraud, simply in virtue of his absolute will and sovereign power. It is too late for us to deny that position; [United States v. Percheman.] we have recognized it by the treaty. The grants to Alagon, Vargas, and Punon Rostro were annulled. By the treaty we succeed to all the rights of Spain: the concessions made by Spain are to continue valid to the same extent, &c.: but will it be asserted that, in succeeding to the rights of Spain, we succeed to the right of his catholic majesty to annul the grants of his subjects? Can it be pretended that the provisions of the eighth article were designed only to leave all grants, perfect and inchoate, as completely at the mercy of the American government as they had been at that of the Spanish monarch? In attempting to ascertain the true meaning of the parties, it is humbly conceived we are not confined to the language of the treaty. We may look into the negotiations which preceded it. In this instance, there is a particular propriety in doing so. "As the instrument of ratification, an essential part of the whole treaty refers to the history of the negotiation: it lets in the whole of that history, as matter to be adverted to, according to all the strictness of legal argument, in reasoning on the construction of the claim in question. The matter is thus made capable of being argued as if the question were upon an act of parliament, or private deed reciting the circumstances under which it was obtained. One might, therefore, rest, as elucidating the case, upon all the authorities which establish, with respect to private and diplomatic instruments, that, however general and comprehensive, particular expressions may be, they ought, in their effect, to be confined to the particular object the parties had in view. The reports of the court of chancery in England contain a variety of instances as to the restriction of deeds, however widely expressed, to the particular object of the parties, founded on a review of the circumstances under which they were made. (Vide Cholmondly and Clinton.) It is also observed by Vattel (268), that *71] we are to interpret a clause in the utmost latitude that the strict and appropriate meaning of the words will admit of, if it appears that the author had in view every thing which that strict and appropriate meaning comprehends; but we must interpret it in a more limited sense when it appears probable that the author did not mean it to extend to every thing which the strict propriety of the terms might be made to include." MS. Opinion of sir John Joseph Dillon on Rattenbury's grant. A short sketch of the negotiations, with some brief extracts and references, will therefore be submitted. In January, 1818, the government of the United States proposed to the chevalier de Onis to terminate all differences in the following terms: 1. Spain to cede all territory eastward of the Mississippi. 2. The eastern boundary to be the Colorado. 3. Claims for indemnities to be referred to commissioners. 4. The lands in East Florida, and to the Perdido, to be held as security for the indemnities; but no grant subsequent to August 11, 1802, to be considered valid. 5. Spain to be released from the payment of the debts. Lyman's Diplomacy U. States, vol. 2, p. 133. [United States v. Percheman.] On the 24th October, 1818, don Luis de Onis proposes to cede the Floridas: "the donations to sales of land made by the government of his majesty, or by legal authorities, until this time, are nevertheless to be valid." 1 Executive Papers, ist sess. 16th cong., 1819, 1820, doc. 2, p. 25. The secretary of state replies, October 31, 1818, "neither can the United States recognize as valid all the grants of land until this time, and at the same time renounce all their claims for indemnity." He adverts to the notice given to the government of Spain, that all the grants lately made within those territories (i. e. to Alagon, Vargas, &c.) must be cancelled, unless some other adequate fund should be provided to satisfy the claims of the United States and their citizens. 1 Executive Papers, 1st sess. 16th cong. 1819, 1820, doc. 2, p. 25. De Onis rejoins, 10th November, 1818, "my second proposal has been admitted by your government, with this modification, that all grants and sales of land made by his catholic majesty, or by lawful Spanish authorities in the Floridas, from the year 1802 to the present, shall be null and void. To this modification, in its absolute sense, I cannot assent, inasmuch as it is offensive to the dignity and imprescriptible rights of the crown of Spain; [*72 which, as the legitimate owner of both the Floridas, had a right to dispose of those lands as it pleased: and, further, as the said modification would be productive of incalculable injury to the bona fide possessors, who have acquired, settled, and improved those tracts of land." "The extent of what I can agree to is, that the late grants made by his catholic majesty in the Floridas since the 24th of January last, the date of my first note, announcing his majesty's willingness to cede them to the United States (the said grants having been made with a view to promote population, cultivation and industry, and not with that of alienating them,) shall be declared null and void, in consideration of the grantees not having complied with the essential condition of the cession, as has been the fact." 1 Ex. Papers, 1st sess. 16th cong. doc. 2, p. 26. On the 9th of February, 1819, the minister of Spain submitted his project of a treaty. The ninth article, answering to the eighth of the present treaty, is as follows: "All grants of lands made by his catholic majesty, or his legitimate authorities, in the aforesaid territories of the two Floridas, and others which his majesty cedes to the United States, shall be confirmed and acknowledged as valid, excepting those grants which may have been made after the 24th of January of last year, the date that the first proposals were made for the cession of those provinces, which shall be held null, in consideration of the grantees not having complied with the conditions of the cession." 1 Ex. Papers, 1st sess. 16th cong. doc. 2, p. 37. On the 13th of February, 1819, the American secretary offered his counter project, in which the eighth article proposed stands thus: "All grants of land made by or in the name of his catholic majesty in the aforesaid territories, after the 24th of January, 1818. |