# Doe v. Braden

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United States Supreme Court
57 U.S. 635
Doe v. Braden
THIS case came up, by writ of error, from the District Court of the United States for the Northern District of Florida.
It was an ejectment brought by the lessee of Clark and the other plaintiffs in error against Braden, to recover all that tract or parcel of land in Florida, which is described as follows, namely: Beginning at the mouth of the river heretofore called or known as the Amanina, where it enters the sea, to wit, at the point of the twenty-eighth degree and twenty-fifth minute of north latitude, and running along the right bank of that river to its head spring or main fountain source; thence by a right line to the nearest point of the river St. John; then ascending said river St. John, along its left bank, to the lake Macaco; then from the most southern extremity of that lake, by a right line, to the head of the river heretofore known or called the Hijuelas; and then descending along that river's right bank to its mouth in the sea; thence continuing along the coast of the sea, including all the adjacent islands, to the mouth of the river Amanina, the beginning point aforesaid, containing twelve millions of acres of land.
The cause went on regularly by the appearance of the defendant, the confession of lease, entry, and ouster, and the admission of counsel on behalf of the United States to defend the suit.
In May, 1852, the case came up for trial at the city of St. Augustine.
The counsel for the plaintiff offered in evidence the following duly verified papers:
1. A memorial of the Duke of Alagon to the King of Spain, dated 12th July, 1817, praying the king to be pleased to grant him the uncultivated lands not already granted, in East Florida, situated between the banks of the river Santa Lucia and San Juan, as far as their mouths into the sea, and the coast of the gulf of Florida and its adjacent islands, with the mouth of the river Hijuelos by the twenty-sixth degree of latitude, following along the left bank of said river up to its source, drawing thence a line to lake Macaco, descending thence by the way of the river San Juan to lake Valdez, and drawing another line from the extreme north part of said latter lake to the source of the river Amanina, thence pursuing the right bank of said river to its mouth by the 28th or 25th degrees of latitude, and continuing along the coast of the sea with all its adjacent islands, to the mouth of the river Hijuelos, in full property for himself and his heirs, and permitting him the importation of negroes free of duty to work and cultivate said lands, a favor which he hopes to obtain from the innate benevolence of your Majesty, whose precious life may God preserve many years, as he prays.
MADRID, 12th July, 1817.
2. The order of the King upon the above, addressed to the royal and supreme council of the Indies, as follows:
His Majesty having taken cognizance of the contents therein, and in consideration of the distinguished merit of this individual, and of his well known zeal for the royal service, and likewise in consideration of the advantages which will result to the State by the increase of the population and civilization of the aforesaid territories, which he solicits, he has deigned to resolve, that the same be communicated to the supreme council, declaring to them that the favor which he solicits is granted to him, provided the same be not contrary to the laws; all of which I communicate to your Excellency by his royal order for your information and that of the council, and for the other necessary ends. God preserve your Excellency many years.
PALACE, December 17th, 1817.
3. A cedula, issued by the extinct council of the Indies, addressed to the governor, captain-general of the island of Cuba and its district, to the intendant of the army and royal exchequer of the Havana and its districts, and to the governor of the Florida. This document bore date on the 6th of February, 1818, and after reciting the petition and grant, concluded as follows:
Wherefore I command and require you, by this my royal cedula, that in conformity with the laws touching this matter, effectually to aid the execution of said gift, taking all the measures proper to carry it into effect without prejudice to the rights of a third party; and in order that the said Duke of Alagon may be enabled to put into execution his design, agreeably in every respect to my benevolent wishes, in furtherance of the agriculture and commerce of said possessions, which demand a population proportioned to the fertility of the soil and the defence and security of the coast, reporting hereafter successively the progress that may be made; it being understood that the importation of negroes, comprehended in said gift, is to be made, as far as the traffic in them is concerned, in conformity with the regulations prescribed in my royal order of the nineteenth of December ultimo, for such is my will; and that account be taken of this royal order in the contaduria-general of the Indies. Given at the palace, this sixth day of February, one thousand eight hundred and eighteen.
4. A power of attorney from the Duke of Alagon to Don Nicholas Garrido, dated 27th of February, 1818.
5. A decree of Coppinger, governor of Florida, dated 27th of June, 1818, putting Garrido into possession of the land claimed.
6. A deed of conveyance, dated 29th of May, 1819, from the Duke of Alagon to Richard S. Hackley, of Richmond, Virginia. This deed conveyed a part of the lands in question to Richard S. Hackley and company, for the purpose of immediately opening, clearing, and settling them.
7. The deposition of Ann Rachel Hart, of Baltimore, Maryland, that Richard S. Hackley was a native-born citizen of the United States.
8. A deed from Richard S. Hackley, dated 14th of September, 1836, to Joseph D. Beers, Lot Clark, and David Clarkson, the lessors of the plaintiff.
9. An admission by the counsel for the United States that Braden, the defendant, was in possession of 587 45/100 acres of land, lying on the Manatee river, in the present county of Hillsborough, which was covered by the foregoing titles, and was of the value of two thousand dollars and upwards.
The defendant, to prove the issue on his part, read in evidence certified copies of patents for his land from the United States.
A great number of other documents and testimony were offered by the defendant and plaintiff, but a particular notice of them is not deemed necessary in the present report.
On the conclusion of the argument, the court instructed the jury as follows:
1st. The foundation of the plaintiff's title is the concession or order of the King of Spain of the 17th of December, 1817, and the cedula or royal order of the 6th of February, 1818, which, together, constitute the grant or concession to the Duke of Alagon to the lands in question. Whether the order of the 17th of December, 1817, was complete in itself, and amounted to a grant, I deem it unimportant to inquire, because it was reaffirmed and made operative by the cedula or royal order of the 6th of February, 1818, which related back to the order of the 17th of December, 1817; and hence that may be considered the date of the concession, explained and rendered more full and perfect by the order of the 6th of February, 1818, and it is so considered for the purposes of this suit.
Taking these two orders together, it is manifest, from their tenor and spirit, and it is more particularly apparent from the orders and proceedings of the king and the council of the Indies, in the early part of 1818, that one object and intent, and one condition of the grant or concession to Alagon, and one of the principal inducements on the part of the king to make the grant, was the colonization and settlement of the country, and the agricultural and commercial advantages which it was supposed would arise to the province therefrom. And it is equally clear that the grant was made subject to the laws of Spain, and particularly subject to such laws of the Indies as were applicable to the case; and that the Duke of Alagon, in his proceedings to carry into effect the objects of the grant, and to avail himself of its benefits, was bound to conform to those laws.
The testimony goes to show not only what those laws were, but that early in 1818, and before the Duke of Alagon had sold or conveyed any of these lands, his attention was distinctly called to them by the king and the council of the Indies, or by the proper officials of the Spanish government, and that every effort was made on the part of the King of Spain to insure the due observance of them by the Duke of Alagon; and that he was especially cautioned and advised that he could not by law, and would not be permitted to alienate the lands, or any part of them, particularly to strangers or foreigners. After this, and before any treaty had been ratified and confirmed between the United States and Spain, and while the province of East Florida was still under the dominion of Spain, and subject to the laws of Spain, the deed of May, 1819, was executed by Alagon to Richard S. Hackley.
Second. Therefore, if the jury are satisfied that the laws of Spain and the Indies were such as have been read to them, and that it was not lawful for a Spanish subject to sell or transfer lands to a stranger or foreigner, then this deed of May, 1819, from Alagon to Hackley, was in violation of law and void, and conferred no title upon Hackley.
The Duke of Alagon could not (if those laws have been correctly and satisfactorily proved) legally make any such conveyance; and had he attempted so to do here in the province of East Fiorida, where it ought to have been done if at all, he would have been prevented by the governor from doing it; and no notary here could have executed the papers without violation of law and of the royal order.
The same objection applies to the deed of conveyance to Hackley of the 30th of June, 1820. That conveyance was likewise in violation of law, and against the express injunctions of the king. It was made in Madrid instead of the province of East Florida, and while the Spanish law was in full force and effect here.
Third. The court is further of opinion, that the grant to the East Florida, where it ought to have been by the king on the final ratification of the treaty, by and with the consent of the cortes, as appears from the evidence in the case; and whether this revocation or annulment of the grant by the king and cortes was founded upon the fact that Alagon had justly forfeited all right to the lands by disregarding the objects and conditions of the grant, and by attempting to transfer the lands to a foreigner, or upon the right of eminent domain, and upon the ground that it was necessary, in order to complete the treaty, and therefore for the public good and general welfare of the nation, to resume or revoke the grant, it was in either case a rightful and legitimate use of sovereign power, and one which cannot be questioned in a court of justice.
Fourth. The court is further of the opinion, that even if the grant was not rightfully annulled by the treaty, yet it is not a grant which, by the terms of the treaty, would stand ratified and confirmed, or which the United States are bound to confirm, although made before the 24th of January, 1818: that the United States are bound to ratify and confirm it only to the same extent that it would have been valid if the territory had remained under the dominion of Spain; and it is manifest, from the evidence in the case, that if the treaty had not been made, the grant would not have been held valid by the Spanish government; it was in fact revoked and annulled by the king and cortes. The United States, therefore, are not bound either by the rules of public law, by the universal principles of right and justice, or by the terms of the eighth article of the treaty, to recognize or confirm it.
Fifth. The court is further of the opinion, that inasmuch as this claim under the grant to the Duke of Alagon has never been recognized and confirmed by the United States, or by any board of commissioners or court authorized by Congress to adjudicate or decide upon the validity of the grant, it is therefore a claim 'not recognized or confirmed,' and within the meaning of the first section of the act of Congress of 3d March, 1807, (relating to settlements, & c., on the public lands: 2d vol. Statutes at Large of the U.S. page 445,) and that the claimants, therefore, have only an equitable or inchoate title at best, and have not the right to take possession; but, on the contrary, are expressly forbidden so to do until their title has been confirmed. Consequently, that not having the right of possession, or the complete legal title, they cannot sustain an action of ejectment; that their only redress is by application to the political power or legislative department of the government; that the courts of justice cannot furnish it without a violation of law.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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