section is as follows: "That all the right and claim of the United States to so many of the lots of ground east of Water street, and between Church street and North Boundary street, now known as water lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water lots, in the said city of Mobile, whereon improvements have been made, be, and the same are hereby, vested in the several proprietors and occupants of each of the lots heretofore fronting on the river Mobile; except in cases where such proprietor or occupant has alienated his right to any such lot, now designated as a water lot, or the Spanish government has made a new grantstreet were known under the Spanish government as water lots; and that the lots on the east side of Water street, are now known as water lots, and may properly be distinguished under the denomination of old water lots, and new water lots.
The only question for this Court to decide is, whether the state Court misconstrued this act, by deciding against the right and title set up under it by Pollard's heirs. The record states, that the Court charged the jury, that if the lot conveyed as above to John Forbes and Company, by the deed aforesaid, was known as a water lot under the Spanish government, and if the lot claimed by the plaintiffs, had been improved at and previous to the 26th day of May, 1824,


(the date of the law,) and was east of Water street, and immediately in front of the lot so conveyed to John Forbes and Company, *363 then the lot claimed passed by the act of Congress of the 26th of May, 1824, to those at that time owning and occupying the lot so as above conveyed to John Forbes and Company.
The facts hypothetically put by the Court to the jury had been fully proved in the affirmative, and indeed were not at all denied; to wit, that the lot conveyed to John Forbes and Company was known under the Spanish government as a water lot; and that the lot claimed by the plaintiffs had been improved previous to the 26th of May, 1824, and was in front ofthe lot conveyed to John Forbes and Company.
The construction therefore of the Court was, substantially, that the act conveyed the lot in question to the owners and occupants of the lot conveyed to John Forbes and Company. That such was the construction of the act given by the Court, is conclusively shown by the subsequent part of the charge: that it was immaterial who made the improvements on the lot in dispute on the east side of Water street. That by the said act of Congress, the proprietor of the lot on the west side of Water street, was entitled to the lot on the east side of it.
If this construction of the act was erroneous, and against the right claimed by the plaintiffs, the judgment must be


reversed. The act is, undoubtedly, very obscurely worded, and its construction, it must be admitted, is doubtful.
The principal difficulty arises upon the true understanding and reference of the words, "whereon improvements have been made:" whether they refer to improvements on the lot on the west side of Water street, or on the lot in question on the east side of Water street. The grammatical construction would undoubtedly refer the improvements to the lot on the west side of the street, and would be carrying into effect what is believed to be the general course of policy in most of the United States, of giving a preference to the owner of land on the shore of navigable streams of water, to the right and privilege of the land underthe water between high and low water mark. And on the other hand, it would seem unjust, where actual improvements had been made on the land below high water mark, to disregard and take away such improvements, and give them to the owner of the lot on the west side of the street.
The evidence as to the extent and value of the improvements on the lot in question is very loose, and affords but little information upon that point. They could probably have been but of little value. They were made by Curtis Lewis, he not having any title, or even claim of title. And it is not reasonable to suppose, that under such circumstances, and from the short time he was in possession before the passage of


For there is excepted out of the act, all cases where the Spanish government has made "a new grant," or order of survey for the same, during the time at which they had "the power" to grant the same: in which cases the right and claim of the United States are vested in the person to whom such grant or order of survey was made, or his legal representatives. And if the plaintiffs bring themselves within this exception, the right is secured to them. And this presents the question as to the construction to be given to this exception.
Two points of inquiry seem to be presented: one relates to the description of the grant or order of survey therein mentioned; and the other as to the time whenmade. The exception describes these grants or orders of survey as "new grams" or orders of survey. The term "new," in its ordinary acceptation when applied to the same subject or object, is the opposite of old. But such cannot be its meaning as here used: for there is no pretence that two grants or orders of survey, had at any time been issued for the same lot. Some other meaning must, therefore, be given to it. And it, doubtless, was used in relation to the existing condition of that part of the territory, when grants or orders of survey like the one in question were made. The territory had been ceded to the United States by the Louisiana treaty: but in consequence of some dispute with Spain


respecting the boundary line, this part of the territory remained in the possession of Spain. And it is a fact, established by the public documents, and laws of Congress, and cases which have come before this Court, that during the period between the cession by France, and the acquiring possession by the United States, Spain continued to issue evidences of title of various descriptions; some complete grants, and others, which were only inchoate rights or concessions. And the term "new" was very appropriately used as applicable to grants and orders of survey of this description, as contradistinguished from those issued before the cession. And this construction is rendered certain, when the description of the grants is connected with the subsequent part of the sentence as to the timewhen made, to wit, during the time at which the Spanish government had "the power" to grant the same. This time, according to every reasonable intendment, must have been so designated with reference to the existing state of the territory as between the United States and Spain: the right to the territory being in the United States, and the possession in Spain. The language, "during the time at which Spain had the power to grant the same," was, under such circumstances, very appropriately applied to the case. It could with no propriety have been applied to the case, if Spain had full dominion over the territory, by the union of right and possession; *365 and in this view it is no forced interpretation of the word power, to


consider it here used, as importing an imperfect right, and distinguishable from complete lawful authority. And indeed no other sensible construction can be given to the language here used: and the course of the government of the United States, with respect to the claims originating during this period would seem necessarily to call for this construction. The act of Congress of the 25th of April, 1812, appointing commissioners to ascertain the titles and claims to lands on the east side of the river Mississippi, and west of the river Perdido, and falling within the cession by France; embraced all claims of this description; it extended to all claims by virtue of any grant, order of survey, or other evidence of claim whatsoever, derived from the French, British, orclaims, and not treated as being absolutely void. In the case of Delacroix vs. Chamberlain, 12 Wheat. 599, an order of survey issued during this period, came under the consideration of the Court. It bore date in the year 1806. The Court said, this order of survey was not sufficient to support an action of ejectment not having been recorded or passed upon by the board of commissioners so as to vest a legal title. But the Court observed, that this order of survey bears date at a time when the Spanish authorities were in the actual possession of Mobile, where the land lies, and it was claimed as a part of the Floridas, then belonging to the Spanish crown; and the United States claimed it as a


part of Louisiana. That the United States, having since purchased the Floridas, without having previously settled the controverted boundary, rendered it unnecessary to examine these conflicting claims. And the Court add, if the United States and Spain had settled this dispute by treaty, before they extinguished the claim of Spain to the Floridas, the boundary fixed by such treaty would have bound all parties. But as that was not done, the United States have never, so far as we can discover, distinguished between the concessions of land made by the Spanish authorities within the disputed territory, while Spain was in the actual possession of it, from concessions of a similar character made by Spain, within the acknowledged limits. We will not, therefore, raise any question upon the groundof want of authority in the intendant to make such concession. Nothing more *366 is to be understood from this case, than that the Court did not consider the circumstance that the concession being made whilst Spain was in the actual possession of the territory, had prevented Congress from acting on the subject of such concessions. And when Congress, in the act of 26th of May, 1824, excepts certain grants or orders of survey, made by Spain during the time at which they had the power to grant the same: the conclusion is irresistible, that it included grants like the one to William Pollard, now in question. This grant bears date on the 9th day of December, in the year 1809, and was rejected by the commissioners for


there shall be, and hereby is, confirmed unto the heirs of William Pollard, deceased, a certain lot of ground, situated in the city of Mobile, and bounded as follows, to wit: On the north by what was formerly known as John Forbes and Company's canal; on the west by Water street, on the south by the King's wharf, and on the east by the channel of the river; being the description of the lot now in question; and directing a patent to be issued in the usual form for the same. There is a proviso, declaring that this act shall not interfere with or affect the claims of third persons. But giving to this proviso its full force and effect, the enacting clause is a legislative construction ofthe title to the heirs of William Pollard.
The judgment of the Supreme Court of the state of Alabama is, accordingly, reversed.
Mr. Justice M`LEAN.
I agree to the judgment of reversal in this case; and as my opinion is mainly founded on the construction of the second section of the *367 act of 1824, without reference to the exceptions it contains, I will state, in a very few words, my views in regard to that section.
It declares "that all the right and claim of the United States to so many of the lots of ground east of Water street, and between Church street and North Boundary street, now known as water lots, as are situated between the channel of the river and the front of the lots known under the


Spanish government as water lots, in the said city of Mobile, whereon improvements have been made, be, and the same are hereby vested in the several proprietors and occupants of each of the lots heretofore fronting on the river Mobile; except in cases where such proprietor or occupant has alienated his right to any such lot, now designated as a water lot, or the Spanish government has made a new grant," &c.
The lots first named in this section are those to which the right of the United States is relinquished; and those lots are now denominated water lots, in contradistinction to those called water lots under the Spanish government.
"All the right and claim of the United States is relinquished to so many of the lots of ground" then follows a description of the locality of these lots, lying "east of Water street, and between Church street and North Boundary street, now known as water lots, as are situated between the channel of the river and the front of the lots known under the Spanish government as water lots, in the said city of Mobile:" and here the description of the locality of these lots ends, and the words "whereon improvements have been made," follow. Now I entertain no doubt the improvements must be made on the lots first named, and to which the United States relinquish their right; and not on those lots named merely to show the local situation of the present water lots. And this is the construction given to the section by


the Supreme Court of Alabama.
The improvements then must be made on the water lot; and the lot in controversy, in this case, is a water lot.
The Court instructed the jury that "if the lot claimed by the plaintiffs had been improved at and previous to the 26th May, 1824, and was east of Water street, and immediately in front of the lot so conveyed to John Forbes and Company, then the lot claimed, passed by the act of Congress, to those at that time owning and occupying the lot so as above conveyed to John Forbes and Company; and that it was immaterial who made the improvements on the disputed lot."
The second section gives to the proprietor of the lot fronting the water lot, such water lot, providedof legislation by Congress, where they have sanctioned such a principle. The policy has been to secure to the individual the benefits of his own labour and expenditure. And I am of the opinion that unless the proprietor of the front lot was, on the 26th May, 1824, also the proprietor of the improvements on the water lot, he can claim no title under the act.
Mr. Justice BALDWIN.
I fully concur with the Court on all the points embraced in their opinions, as well as the reasons assigned; being fully satisfied with the construction given to the acts of Congress of 1804, 1824, and 1836, I have no desire to add any thing to the conclusive views presented in the opinion. But there are other important considerations necessarily connected


with the merits of the case, which induce me to notice them in a separate opinion, leading to the same conclusion on other grounds.
As it has been my assigned duty on several occasions to examine the subject of claims and titles to land, in the various territories which the United States acquired by cession from Georgia, France, and Spain; a broad and varied field of investigation has been opened, on a part of which there has been no opinion of this Court as yet delivered. That part is a review of the political condition of the territory between the Perdido and Mississippi, from 1800 to 1821, under the Louisiana treaty, the various acts of the executive and legislative departments of this government, in relation to its cession, occupation,government, and adjustment of claims therein, the constitution, and laws of nations; before the ratification of the treaty of 1819, and in connexion with that treaty; the judicial exposition of both treaties by this Court. It is a subject of high concern to numerous claimants of land within that territory; to the United States, both in interest and in relation to the formal complaints made by Spain of the omission "to cause the grants of the king to be respected, according to the stipulation of the eighth article of the treaty of 1819." This complaint was made soon after the decision of the case of Foster and Elam vs. Neilson, in 1829; and in 1832 the Secretary of State, after the decision of the case of *369 Arredondo,


held in Foster and Elam, 2 Peters, 309, no title can be maintained under a Spanish grant; "singly" on the ground that the Spanish construction of the treaty of 1803 was right, and the American construction wrong.
Keeping this principle in view, I shall consider the title of the plaintiff under a Spanish concession, made in 1809, by the lawful authority of the king, independent of its confirmation by any special act of Congress; as resting on its validity by the laws of nations, the Constitution of the United States, the ordinance of 1787, the two treaties, and the general course of legislation by Congress, in relation to government and property in the disputed territory. It will be observed, that the claim of the plaintiff was duly filed andto a satisfactory result, on matters so complicated and interwoven into our system of territorial, state, and federal governments.
*370 In 1800, Spain ceded Louisiana to France, by the treaty of St. Ildefonso, but retained peaceable possession till May 1803, when it was surrendered to France in the same manner in which it was ceded by the previous treaty, declaring that, "the limits of both shores of the Mississippi shall remain forever fixed by the treaty of Paris, in 1763; and consequently, the settlements from the river Manshack or Iberville, to the line which divides the American territory from the dominions of the king, shall remain in the possession of Spain, and annexed to West Florida." Vide 2 Peters, 303. White's Comp. 164.
In October, 1803, Congress authorized the President


to take possession of and occupy the territory ceded by France to the United States, and to organize a temporary government, "for maintaining and protecting the inhabitants of Louisiana, in the free enjoyment of their liberty, property, and religion." 2 Story, 907.
In December following, France surrendered the province to the United States, as it was ceded by Spain to France, under the same clauses and conditions, &c.; and as this Court have declared, "in every respect with all its rights and appurtenances, as it was held by France, and received by France from Spain." 10 Peters, 732.
Spain then was in the possession of the disputed territory, by the consent of France, expressed in the surrender of Louisiana; and the acceptance of the surrender by France to the UnitedStates, as she received it from Spain, was equally a consent by the United States to the continuance of the possession of Spain. Though the United States soon asserted her right to the "sovereignty and propriety" over and in the territory as far east as the Perdido, no attempt was made to disturb the possession of Spain till 1810. From 1803 till October, 1810, the condition of the country was this: Spain was the acknowledged sovereign de facto, in the peaceable exercise of all the powers of government, and claiming to be also the sovereign de jure; the United States neither asserting nor exercising the powers of a government de facto, but asserting her right as sovereign de jure under the treaty of 1803; and as this Court


said, "No practical application of the laws of the United States to this part of the territory was attempted, nor could be made while the country remained in the actual possession of a foreign power." 2 Peters, 304.
In October, 1810, the President, by his proclamation, ordered military possession to be taken of the disputed territory; declared the laws of the United States to be in force within it; and ordered the inhabitants to be obedient thereto; but it was also declared, that in the hands of the United States, the territory was "still left a subject of fair and friendly negotiation and adjustment," &c. And, "under the full assurance that the inhabitants shall be protected in the enjoyment of their liberty, property, and religion." Vide 3 State Papers,Foreign Relations, 397, 398. Proclamation at large. At this time there was a revolutionary convention in session at Baton Rouge. within the disputed territory, claiming to be an independent *371 government, to be admitted into the Union; and also claiming the "unlocated lands" therein. Ibid. 395, 396.
In replying to these propositions, the Secretary of State, in November, 1810, in asserting the right of the United States as far as the Perdido, by the treaty of 1803, says: "The delivery of possession has, indeed, been deferred, and the procrastination has been heretofore acquiesced in by this government, from a hope patiently indulged, that amicable negotiation would accomplish the purpose of the United States," &c. The Secretary then makes these remarks: "The vacant land of this territory, thrown into common


stock with all the other vacant land of the Union, will be a property in common for the national uses of all the people of the United States. The community of interest upon which this government invariably acts, the liberal policy which it has uniformly displayed towards the people of the territories, (a part of which policy has ever been a just regard to honest settlers,) will, nevertheless, be a sufficient pledge to the inhabitants of West Florida, for the early and continued attention of the federal legislature to their situation and their wants." Ibid. 398.
In enclosing the President's proclamation to the governor of Mississippi, the Secretary of State directs him to do whatever his powers will warrant, to "secure to the inhabitants the peaceable enjoyment of theirliberty, property, and religion; and to place them as far as may be, on the same footing with the inhabitants of the other districts under his authority." Ibid. 396, 397.
In January, 1811, the President recommended to Congress, in a confidential message, the expediency of authorizing him "to take temporary possession of any part of Florida, in pursuance of arrangements with the Spanish authorities, and for making provision for the government of the same during such possession." 3 State Papers, Foreign Affairs, 394, 395. A law was accordingly passed, giving the authority required as to the territory east of the Perdido, and south of Georgia and the Mississippi territory, and for organizing a government for the protection and maintenance of the inhabitants of the said territory, in the full


enjoyment of their liberty, property, and religion. At the same time, Congress resolved under certain contingencies, on the "temporary occupation of the territory adjoining the south border of the United States; they at the same time declare, that the said territory shall in their hands remain subject to future negotiation." 6 Laws, 592, 593.
In February, 1813, the President was authorized "to occupy and hold all that tract of country called West Florida, which lies west of the Perdido, not now in the possession of the United States;" for which purpose, and "for affording protection to the inhabitants, under the authority of the United States; the President was authorized to employ the military and naval force of the United States." 6 Laws of the United States, 593. This resolutionand law remained unpublished till 1821, after the final ratification of the *372 treaty of 1819; but under them the whole disputed territory was taken and held by the United States, till it was annexed to the adjacent states by acts of Congress.
In 1812, that portion which was situated between the Iberville, the Mississippi, the east branch of Pearl river, and the Mississippi territory, was annexed to Louisiana on condition that a law should be passed "securing to the people of the said territory, equal rights, privileges, benefits, and advantages, with those enjoyed by the people of the other parts of the state." Vide, 2 Story, 1224. 1230. A law was passed by Louisiana, in compliance with this condition. In May of the same year, that portion which


was situated between the east boundary of Louisiana and the Perdido, was annexed to the Mississippi territory, to be governed "by the laws now in force, or which may be hereafter enacted, and the laws and ordinances of the United States relative thereto, as if the same had originally formed a part thereof," &c., 2 Story, 1248; by subsequent acts, this part of the territory was divided between Mississippi and Alabama, and thence formed a part of those states, the former of which was admitted into the Union before the signature of the treaty of 1819, and the latter in December following. Vide, 3 Story, 1617. 1620. 1635. 1735. 1804. 2 Peters, 308.
From this summary view of the course of the executive and legislative branches of the government,it is apparent, that they were in the assertion of the territorial rights of the United States, as claimed by them under the treaty of 1803; it is also apparent from the solemn pledges made by both departments, that the possession of the country was taken and held by force, yet subject to future negotiation as to the right of sovereignty and propriety, and full assurances to the inhabitants of being maintained and protected in the free enjoyment of their property.
Before proceeding to the stipulations of either treaty, it is now necessary to notice those acts of Congress which are referred to in the President's proclamation of 1810, in which he declares, "That the acts of Congress relating to this territory, though contemplating a present possession by a


foreign authority, have contemplated, also, an eventual possession of the said territory by the United States, and are accordingly so framed as to extend their operation to the same." 3 State Papers, For. Aff. 397.
The principles of this proclamation were adopted by Congress, whereby the laws which bound the inhabitants of the disputed territory, at the same time protected them in their rights of property, as completely as in the island of Orleans, or west of the Mississippi; these laws were suspended in their operation during the occupation of Spain, but applied to the whole country ceded by France to the United States, as soon as it came into their possession, and their provisions, from the first to the last, are of a uniform character. Whenever Congress gaveauthority to take possession of the ceded territory, and provide for its temporary government, the declared *373 object was, "to maintain and protect the inhabitants in the enjoyment of their property," &c., as has been seen in the act of 1803. 2 Story, 907.
By the act of 1804 it was provided, that "no law shall be valid which is inconsistent with the laws and Constitution of the United States." 2 Story, 933. "The laws in force in the said territory, and not inconsistent with this act, shall continue in force until altered, modified, or repealed." 2 Story, 937.
The act of 1805 authorized a government similar to that of the Mississippi territory, and declared the ordinance of 1787 in force, (except as to the descent of estates, and slavery;)


and continued the existing laws till altered, &c.; it also authorized the admission of the territory into the Union, according to the third article of the treaty of 1803. 2 Story, 963, 964.
As this act placed the whole ceded terrritory under the same system of government as Mississippi, we must look to the acts of 1798 and 1800, which organized a government over that territory, (before any cession was made by Georgia to the United States,) without the consent of Georgia, and while the whole territory over which the United States thus assumed jurisdiction, was claimed by Georgia. This is necessary, in order to ascertain what effect the United States intended that their occupation of the territory then in controversy should have upon the rights of Georgia, orof the proprietors of lands claiming under that state. This is the more important, when the compact with Georgia, in 1802, is applied to the pre-existing state of things in the territory in dispute between her and the United States; for it will be found in all respects analogous to the state of things existing in the country west of the Perdido, before the treaty of 1819 took effect; and that the proclamation of the President, and the acts of Congress, for taking the possession of West Florida, and annexing it to the contiguous territories first, and then to the states, contain pledges fully as strong, and to the same import, as those given to Georgia by this provision of the acts of 1798 and 1800: "That the


establishment of the said government shall in no respect impair the right of the state of Georgia, or of any person or persons, either to the jurisdiction or the soil of the said territory; but the rights and claims of the said state, and of all persons interested, are hereby declared to be as firm and available as if this act had never been made." 1 Story, 495, 778.
In connection with this provision, it must be observed, that up to 1797, Spain had claimed and occupied the southern portion of the Mississippi territory as part of Florida; pursuant to the treaty of 1795, she surrendered all the country north of the 31° north latitude to the United States. The words, "any" and "all persons," extend, therefore, as wellto those who claimed lands north of that line under Spain, as those who claimed under Georgia; and as Spain had relinquished her rights to the territory, those of Georgia alone were noticed, while the granters of either stood on the same precise footing under these laws. But the treaty of 1795, between *374 the United States and Spain, gave those claiming under her this protection. "It is also agreed, that the inhabitants of the territory of each party, shall respectively have free access to the Courts of justice of the other; and they shall be permitted to prosecute suits for the recovery of their property, &c.; and the proceedings and sentences of the said Courts, shall be the same as if the contending parties had been citizens


or subjects of the said (same) country." Art. 20, 1 Laws U.S. 276.
This analogy between the condition of the territory south of the 31° north latitude, and west of the Perdido, and that which lies north thereof, has been made the more applicable by the act of 1812, which, it has been seen, applies the laws and ordinances of the United States, and the laws then in force, to the territory west of the Perdido, precisely as "if it had formed originally a part of the Mississippi territory." 2 Story, 1248. And as the act of 1805 put the territorial government of Louisiana and Mississippi on the same footing, all the laws applicable to the one must be applied to the other and every part of it, wheneverthe United States assumed the powers of government. The act of 1805 adopted the ordinance of 1787, enacted for the government of the territory north and west of the Ohio in general terms; the act of 1798 is more explicit in declaring, `That from the establishment of the said government, the people of the aforesaid territory shall be entitled to and enjoy all and singular the rights, privileges, and advantages granted "by that ordinance," in as full and ample manner as they are enjoyed "by them." 1 Story, 495.
Among these rights, &c., are that of trial by jury, the writ of habeas corpus, judicial proceedings according to the course of the common law, the protection of property, the inviolability of contracts, and the right of admission into the


Union, on an equal footing with the original states. 1 Laws U.S. 479. In addition to which, the third article of the Louisiana treaty stipulates, that "the inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States; and, in the meantime, they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion they profess."
This, then, was the condition of the disputed territory and its inhabitants, from the time the United States took possession and governed it as a part of their territory. The right of sovereignty andgeneral propriety remained subject to pending negotiation; the civil rights of the people, and their rights of property were protected by various acts of Congress: the ordinance of 1787, the treaty of 1803, and the Constitution of the United States. The local laws remained in force till altered, and the political rights of the people were such as existed in all the other territories. 1 Peters, 542. When these territories became states, the inhabitants thereof became *375 citizens of those states, and, as such, entitled to all the rights which citizens enjoyed in other states; and the subjects of Spain, who owned or claimed property, had, by the twentieth article of the treaty of 1795, the same right of suing for its recovery in the Courts of the


United States, as one of its citizens had. 9 Peters, 234.
On this state of things, the treaty of 1819 had no influence; at the time of its ratification, the whole disputed territory was annexed to the contiguous states; the inhabitants were incorporated in the Union, and were citizens of the United States; and the respective states, in virtue of what this Court most truly denominate acts of "sovereign power," exercised by them under the treaty of 1803, over a part of what the United States insisted and Spain denied, was a part of Louisiana; claiming only to stand in the place of the king, and, during negotiation, to exercise the powers and rights which he had exercised till 1810; the United States had never attempted by law toconfiscating their lands, and depriving them of the property acquired under the government and laws of Spain, while she held possession with the consent of the United States. Every act of the executive and legislative branches of the government, shows that the contest with Spain was for the right of sovereignty over the territory, and the propriety in the vacant land therein; not for the right to what had been granted according to the laws of Spain, or which had otherwise become private property. 6 Peters, 735.
Claiming the territory between the Perdido and the Mississippi by the Louisiana treaty, the United States were bound, by the express terms of the second article, which included "Islands belonging to Louisiana, all public lots and squares, vacant lands, and all public


buildings, fortifications, barracks, and other edifices, which are not private property." 7 Peters, 87, 88. No land which was not vacant, (no land which was private property,) passed to the United States, but was excepted from the cession, not only by the second article, but by the guarantee by the United States, to the inhabitants in the third article, of the free enjoyment of their property, until their admission into the Union. From the pledge to maintain and protect this right, the United States never set up any absolution, or from the pledge to hold the territory subject to future negotiation. What was considered as vacant land by the executive department *376 in 1810, has been seen by the letter of the Secretary of State, on the sameday as the proclamation of the President, that land which was to be thrown into the common stock, with all the other vacant land of the United States, for the national uses of all the people thereof; land which remained as a part of the royal domain when the United States took possession in virtue of the treaty of 1803, which was not private property.
This state of things as to government and property in the disputed territory, fully justified the view which the executive department of the government took of this subject in 1832, which was in perfect accordance with the proclamation of the President twenty-two years before, and with the course of the legislature from 1811 to 1819, in relation to the rights of private property in


the disputed territory, held under grants of the Spanish authorities, before the United States took possession. It was by both departments the most solemn recognition of the principle, that a contest between the two governments concerning territorial boundary, did not and should not impair individual rights of property, and of its practical operation on grants made by the government in possession; and such recognition carried with it the most sacred obligations, to carry that principle out in all its consequences, independently of any stipulation in the treaty of 1819.
By the third article of the Louisiana treaty, the United States were bound to protect and maintain the inhabitants of the ceded territory, "in the free enjoyment" of their "property," until they were incorporated into the Union; and when soincorporated, to admit them "to the enjoyment of all the rights, advantages, and immunities of citizens of the United States." From the moment of such incorporation, the Constitution of the United States, and its amendments, interposed between the inhabitants and the legislative power of the United States the same guarantee which any citizen of any other state had a right to claim for the enjoyment of his property; and every proprietor, alien, or citizen, had the same constitutional right to invoke the protection of the judicial power of the state or Union, against the invasion of his rights of person or property, wherever he might be located. 2 Peters, 235.
That such incorporation was by acts "of sovereign power by the United States," exerted by military operations, expelling the


existing authority of Spain, and compelling the inhabitants to submit to that of the United States, so far from diminishing, increases their constitutional and treaty obligation; for such forced submission is in the nature of articles of capitulation, the observance of which is enjoined by the laws and practice of all civilized nations. 1 Peters, 542. The proclamation of the President and the acts of Congress declared the terms on which the United States established their authority; the inhabitants submitted, and thereby became entitled to the threefold protection of the Constitution, treaty, and law of nations. 2 Dall. 1, &c.
Had Spain made a voluntary transfer of the allegiance of her *377 subjects in this part of Louisiana, as she did in the residue, the duty of the UnitedStates could not have been doubted; it never has been doubted by any department of the government, or any member of it, as to every other portion of the territory ceded by the treaty of 1803; and the universal opinion of the people and government has been, that the rights acquired, and the obligations imposed by that treaty, were throughout concomitant. Spain, indeed, might deny the right of the United States west of the Perdido, to have become in any way strengthened by the annexation of that part of Louisiana to the adjacent states, by an act of war or mere sovereign power; but when the United States undertook to construe and execute the treaty in their own way; and as they did in asserting their rights accruing


by the cession; every rule and principle of national honour, faith, and law, would be violated, if they should deny their duty to comply with the terms of the treaty, which alone gave them any right, or with the pledges which they gave when they took possession in virtue of its stipulations.
It matters not by what right the United States held the disputed territory, at the time of its incorporation into the Union; had it been done without the colour of right, or had East Florida been so incorporated before the treaty of 1819, the consequences would have been the same; by the very and sole act of such incorporation, the inhabitants became citizens of the United States, their property was protected, and alien proprietors became entitled toall rights secured to them by any treaty between their sovereign and the United States.
In addition to these considerations, the acts of Congress from 1803 till 1811, before the United States took forcible possession, which, as the President declared in his proclamation in 1810, were "so framed" as to apply to that territory whenever the contemplated eventual possession by the United States should take place, secured to the inhabitants every protection which those laws, the treaty, and ordinance of 1787 could impart; and no subsequent law has attempted to impair any right thus secured, denied its existence, or asserted any right in the United States to lands which were private property in 1810. A more clear and correct exposition of the policy and course of the United States


cannot be presented than the following remarks of the Secretary of the Treasury, in presenting a plan for the final adjustment of all claims by Spanish grants, pursuant to resolutions of the Senate and House of Representatives in 1818.
"In presenting a plan of final adjustment, in which no other description of claims are comprehended than those which are founded upon patents and concessions issued by the several governments which have at different times exercised sovereign jurisdiction over the late province of Louisiana, as held by France, the undersigned, &c. has proceeded upon the conviction that ample provision has already been made for the adjustment of all claims to lands contemplated by the resolution founded upon evidence inferior to patents and concessions. *378 He has arrived at this convictionby a careful examination of the several acts of Congress for ascertaining and adjusting land titles in Louisiana, which have been passed since the 20th day of December, 1803, the period at which possession was taken of that province by the United States. This long series of acts, commencing with the 26th March, 1804, and terminating with the 29th April, 1816, presents an uninterrupted and uniform course of relaxation in favour of land claimants of every description. This relaxation has generally been effected by comprehending descriptions of cases not recognised by previous acts, by extending the time within which notices of claims and production of evidence were required, and by giving authority not only to decide upon such claims, but to revise and confirm such as had been


dependent upon the acts of Congress may be promptly and legally determined," &c. 3 State Pap. Public Lands, 393.
The Secretary then presented a bill providing for the final adjustment of claims to lands throughout the whole extent of Louisiana, including those in the disputed territory, but it was not enacted into a law; Congress however continued to act as they had before done, in a spirit of unceasing liberality towards claimants, each successive law relaxing from the strictness of former ones.
This is apparent from an inspection of the various acts of Congress from 1805, in relation generally to claims to land in Louisiana; as the principles of this case require a reference only to those laws which relate to the territory between the Perdido and the Mississippi, theof 1803, but to that which was acquired *379 by the compact or treaty of cession between Georgia and the United States, in 1802. By this compact, Georgia ceded to the United States the right of soil and jurisdiction, to all the territory within her chartered boundaries, which was situated west of the Chatahouchee, on certain conditions; one of which was, that all grants of land made by the British or Spanish governments, before the 25th October, 1795, &c., should be confirmed; to carry which into effect, various laws were passed in 1803, 1804, and 1805. 2 Story, 894. 952. 966. These acts related to the territory north of 31° of latitude, which had been the subject of controversy between the governments of Florida, while under Great Britain,


and Georgia, within which the governor of West Florida had made grants before the cession to Spain by the treaty of peace in 1783; within which Spain made grants from that time till 1797, when she gave up possession to the United States; and within which Georgia had also made grants up to the Mississippi. It was, therefore, in the strictest sense, disputed territory, claimed by the three parties, the United States, Spain, and Georgia, at the date of the grants. The laws relating to the adjustment of titles to land therein, necessarily referred to grants made by a government de facto, which the United States denied was a government de jure; and the laws, being on a kindred subject, would of course be analogous in their provisions,and receive the same construction, as those which related to the territory which was in dispute between the United States and Spain, from 1804 till 1821.
In examining the provisions of all the laws for adjusting the claims to lands in Louisiana and Florida, they will be found to be patterned from those in relation to the compact with Georgia; and, as will be seen hereafter, have been construed alike by this Court. The first law which related exclusively to claims to land west of the Perdido, was passed in 1812; the previous laws applied generally to Louisiana as ceded by the treaty, making no distinction between that part which was disputed, and that which was in the possession of the United States, as surrendered in 1803. But as


the practical operation of the laws of the United States depended on the President, in his execution of the authority conferred on him by the act of 1803, 2 Story, 907; it is evident, that these laws could not be carried into effect by establishing land offices and organizing boards of commissioners to adjust claims to land within that part of the territory, which was at the time occupied and governed by Spain. No government can exercise legislative powers within the territory actually in the possession of another sovereign; this can be done only when such possession is displaced by force, or surrendered by treaty, or otherwise; hence it appears, that no provision was made for the adjustment of claims to lands west of the Perdido, till bythe President's proclamation, the resolution and acts of Congress, the United States had obtained possession of the greater part of West Florida. Then the act of 1812 provided for the appointment of commissioners, with the powers conferred by former laws; directed all *380 claimants to lands in the disputed territory, to deliver notice and evidence of their claims within a limited time, and to state the written evidence thereof; whether the claims arose under the British, French, or Spanish governments, together with the nature and extent thereof, &c., &c. Provided, That where the claim is by a complete grant, it shall not be necessary to have any other evidence entered than the original grant, order of survey, and plot of the land. On failure to deliver notice of


interest in the soil: but it is added, "Admitting the claim of the United States to the country above mentioned to be unquestionable, (and I see no reason to doubt it,) the question then arises, how far the possession of that country by the Spanish government, after the right of the United States accrued, ought to *381 affect those claims which were granted by the former government, during the time which intervened between the purchase, and the time when possession was taken by the United States? If the United States had taken possession of West Florida at the same time that they did of Louisiana west of the Mississippi, many serious injuries to individuals might have been prevented. As this was not the case, it becomes an inquirythe commissioner, that the government of the United States is not legally bound to confirm them. Nevertheless, from a variety of considerations which will, doubtless, enter into the decision of this question, the government may deem it politic either to confirm their claims to a certain extent, or in some other way to effect a compromise with them. Their unlimited confirmation would, in the opinion of your commissioner, seriously injure many individuals, some of whom probably resided on the lands before they were surveyed for the patentees." 3 State Papers, Pub. Lands, 66.
The reasons for adjudging the claims of the first class to be valid, are, that they "comprehend patents derived from the British and Spanish governments, at a time when they possessed and exercised the undisputed sovereignty


of the soil; and they ought, in the opinion of the undersigned commissioner, to be confirmed by the United States." 3 State Papers, Pub. Lands, 66.
That he alluded to the sovereignty de facto, is evident; for the list of cases under this class is that in which there appear eighty-six cases of grants, made by Spain after the date of the Louisiana treaty; on twenty-seven of which no settlements were made till after the 20th December, 1803. This is the more apparent in the reasons for confirming the claims of the second class, under incomplete titles.
"Those made by Miro, &c. were originated by the Spanish authorities, prior to the purchase of Louisiana by the United States; and agreeably to the laws, usages, and customs of the then existingdonations made by the Spanish government, prior to the purchase of Louisiana by the United States. When this is the case, it is believed the government of the United States may limit its confirmation to any extent which it may be deemed just, both in regard to the number of arpents in each tract, and the number of tracts claimed by the same person."
In this class of incomplete titles there are two hundred and sixty claims by orders of survey, &c. made after the treaty of 1803, on few of which settlements were made till after 20th December, 1803.
These reports were transmitted according to law, and laid before Congress in 1816. 3 State Pap. 6. In April, 1818, the Senate and House of Representatives instructed the Secretary of


the Treasury to report a plan for the final adjustment and settlement of these claims; which he submitted in December following, accompanied with the draught of a bill enacted 3d March, 1819, and classing the claims as follows:
1. Claims founded on complete grants from the Spanish government, which are in the opinion of the commissioners valid, and agreeably to the laws, usages, and customs of the said government. The first section declares, that "they be, and the same are hereby, recognised as valid and complete titles, against any claim on the part of the United States, or right derived from the United States." And certain claims under British grants are so recognised. 3 Story, 1748.
2. Claims founded on orders of survey, permission to settle, requette, or any writtenand forty acres.
5. Every person in the list of actual settlers, who has no written evidence of title, and on the 12th April, 1814, had inhabited or cultivated a tract of land, "shall be entitled to a preference on becoming a purchaser."
*383 Time for filing claims is extended, and provision is made for a revision of claims which had not been recommended for confirmation. Under the provisions of the act of 1819, the commissioners reported numerous other claims for confirmation, comprising all classes; (vide 3 State Papers, Pub. Lands, 436, 442, 447  151;) including lots in the town of Mobile; which reports were acted on by Congress by the act of 8th May, 1822, as to the lots in Mobile, 3 Story, 1860; and as to lands,


by an act of the same date, 3 Story, 1867.
In both these acts the claims are classed as in the act of 1819; complete grants are recognised as valid, &c.; incomplete grants are confirmed, &c.; and donations made to settlers, &c. as was done by that act: and the last recognises the laws, usages, and customs of Spain, as the test of a grant being complete to vest the title.
Both the acts of 1819 and 1822 being founded on the reports of the commissioners in 1816 and 1820, must be taken with reference thereto; and recognising the claims therein reported as valid, to be complete titles, by their intrinsic effect. In the report of 1816, the commissioner says, those claims of the first class, "being founded on completegrants of former governments, we think are good in themselves on general principles, and therefore require no confirmation by the government of the United States to give them validity," (3 State Papers, 267;) and in that of 1820, that "they are certainly entitled to unqualified confirmation, (3 State Papers, 441;) and in relation to surveys on incomplete grants, the same rule is adopted in relation to those laws, customs, and usages.
Section fourth directs the register and receiver, &c. except in relation to perfect titles, as recognised in the first section of the acts of 1819 and 1822, shall have power to direct the manner in which all lands claimed thereby shall be surveyed and located; having regard to the laws, usages, and customs of the Spanish government on


that subject, and also to the mode adopted by the United States. 3 Story, 1868. Burchard, 352. 4 Story, 2168.
Subsequent laws extended the time for filing claims, and various reports continued to be made and laid before Congress: these laws were more liberal in their provisions than former ones, in accordance with the general policy of Congress, and more especially on account of a strong remonstrance by the legislature of Louisiana on the subject. Vide 3 State Papers, 430, 432. Vide also 3 Story, 1907, 1909. 1968, 2009. 2017. Burchard, 312. 394. 404.
By the act of 1832, provision was made for the adjustment of all claims filed by 1st July, 1833; the sales of land in the disputed territory were suspended for one year; and where claims wereunconfirmed, but were embraced within the provisions of previous laws, and the land had been sold by the United States, the owners were entitled to receive the purchase money for which the land was sold at public sale. 4 Story, 2303.
Pursuant to this act, reports were made and confirmed by the act of 1835, (4 Story, 2419;) and decisions in favour of land claimants *384 pursuant to the act of 1835, were confirmed by the act of 1836. 4 Story, 2514.
From this review of the course of the executive branch of the government in 1810, and the decisive opinion expressed in 1832, as to the title to land in the disputed territory being valid in the view of the United States and Spain, during the negotiations which preceded


the treaty of 1819; and from the whole legislation of Congress from 1803 till 1836, there can remain no ground for mistaking their mutual understanding of the effect of the treaty of 1803, in its obligation on the United States to protect the private property of individuals in the disputed territory. In this respect the treaty of 1819 was not taken into consideration; for the United States were bound by every guarantee which a government could give to the people, as strongly as any new treaty would bind them; but a new treaty was necessary, to disencumber the disputed territory from the pledges under which the United States took and held possession from 1810.
To this state of the disputed territory, as developed in the preceding review in relationto its government, and the rights of private property during an adversary claim by Spain and the United States, and pending negotiations for seventeen years, the final treaty must be referred, in order to ascertain its bearing on this case.
The subjects of controversy were, the east and west boundary of Louisiana, according to the cession by Spain to France in 1800, and by France to the United States in 1803. The objects of the treaty were, 1. To define the west boundary; 2. To procure a cession of East Florida to the United States; 3. To settle the controversy as to the east boundary by a general cession and relinquishment of all the claims and pretensions of Spain east of the Mississippi; and 4. To stipulate the terms


and conditions on which all past controversies should be terminated, and the cession made.
The title of the treaty shows its nature: "A Treaty of Amity, Settlement, and Limits;" its declared objects, and the intention of the parties are, "the adjustment of all differences," "to finally settle, determine, and adjust all differences and pretensions by a treaty," "the restoration and permanent establishment of mutual and sincere friendship, to consolidate, confirm, and forever maintain, the good correspondence which happily prevails, and with the most earnest desire of conciliation, and with the object of putting an end to all the differences which have existed between them." Vide the preamble to the treaty and the seventh article.
Art. 1. "There shall be a firm and inviolable peace and sincere friendship between the UnitedStates and their citizens, and his Catholic Majesty, his successors, and subjects, without exception of persons or places."
Art. 2. His Catholic Majesty cedes to the United States, "all the territories which belong to him east of the Mississippi, known by the name of East and West Florida," &c.; "and all vacant lands which are not private property."
*385 Art. 3. The first clause fixes the west boundary of Louisiana at the Sabine, &c. By the second clause, his Catholic Majesty "cedes to the United States all his rights, claims, and pretensions to any territory east of said line;" and forever renounced them.
Art. 8. Stipulates for the confirmation and ratification of "all the grants of land made before the 24th January, 1818, by his Catholic Majesty or his lawful authorities,


in the said territories, ceded by his Catholic Majesty to the United States," &c.
It is not necessary to take any further notice of the other parts of this treaty, or give any detail of its provisions; it suffices for all the purposes of this case, to consider it as having effected all its declared objects, according to the declared intention of the parties, without exception of persons or places. So both governments have ever considered it; and the once disputed territory has been peaceably held by the United States, according to the terms of its stipulations, and not by the mere force of the Louisiana treaty, or "the acts of sovereign power," exercised by the United States previous to the ratification. The political departments of the government haveuniformly recognised its application to the disputed territory, as a cession and renunciation by Spain of all her claims and pretensions, and thereby putting a final end to all existing differences and disputes concerning boundary, under the treaties of 1800 and 1803. This Court has also so considered it, by declaring in 1827, that "the United States have since obtained the Floridas by purchase and cession from Spain," (2 Wheat. 600;) and in the first sentence of their opinion in Garcia vs. Lee, repeating this declaration in language which cannot be misapprehended or misapplied, and is in these words: "The land is situated in the state of Louisiana, and in the territory lying north of the Iberville, and between the Perdido and the Mississippi, which was so long


a subject of controversy between the United States and Spain; and which was finally settled by the cession of the Floridas to the United States, by the treaty of February 22d, 1819." 12 Peters, 515.
On this point, then, there is a perfect union of opinion by all the departments of the government, that this treaty applied to the disputed territory; that it finally settled all former controversies concerning it, and that it was done by a cession by Spain, and a purchase by the United States.
These propositions are perfectly consistent with the assertion by the United States, of their original right to this territory under the former treaties; they have bought their peace; Spain has ceded her claims and pretensions: though neither party has acknowledged the original rightof the other, (2 Peters, 310,) yet both agree that, for the future, it belongs to the United States, in full sovereignty and propriety, as it was claimed by Spain. If, indeed, any doubt could be raised on the terms of the treaty, the interest of the United States requires that they should be construed so as to effect the objects declared; for if the cession and purchase do not include the disputed territory, the United States still hold it subject to future *386 negotiation, according to the declaration of the President in 1810, and Congress in 1811. It has not and cannot be asserted, with truth, that there is yet subsisting a controversy between Spain and the United States on this subject; nor can there be a


suggestion of any act of cession, relinquishment by Spain, or any recognition of the right of the United States, unless it is found in the treaty of 1819; or any release of the pledge under which possession was taken by force, unless by the operation of its stipulations upon the territory thus seized; and further, if the confirmation of grants by the eighth article, does not extend to those made for lands west of the Perdido, the clause which annuls those made after 1818, and the grant to Vargas, is equally inapplicable to defeat them; and if there is any part of East or West Florida to which the treaty does not apply, or any exception of persons or places within either is made by any construction ofany part of the treaty; it is an express contradiction of the first article, which negatives all exceptions. The treaty must then be taken as the Court have declared it; or all its stipulations must be confined to East Florida, and that part of West Florida which lies east of the Perdido, leaving all controversies before subsisting in full force, as to territory west of that river.
The nature and character of this treaty forbid an interpretation which would make it a violation of the honour and faith of the United States, so often pledged; and jeopard their interest by considering the disputed territory to yet be in their hands, subject to future negotiation: a conclusion from which there is no escape, if the negotiation which ended by the


ratification of the treaty in 1821, did not settle all controversies. By referring to the terms of the ratification, there can be no doubt of the declared meaning of the King of Spain, and the treaty making power of the United States; as well as to what was ceded to the United States, as the effect and force of the treaty when ratified, and the ratifications exchanged. In the act of the king, it is important to observe, that he declares the cession to be made by the second and third articles; the bearing of which on the eighth article will be seen to have a most conclusive effect, when the case of Foster and Elam vs. Neilson comes under review. The king says:
"Whereas, on the 22d February,in the whole territory east of the Sabine river, which is not private property; what is private property is excepted from the cession by the terms of the second and third articles; and one of the conditions of the cession is, the confirmation and ratification of all grants made before a certain time for lands in the ceded territories, excepting three. Compensation is made for mutual claims; all past complaints are redressed, and the United States hold the disputed territory, freed from all past pledges by the consent of Spain; and the stipulated confirmation of grants made by the king or his lawful authorities, saves his honour and faith pledged to the grantees. Peculiar force is to be given to this stipulation in the eighth article, when it


is considered that two full years elapsed between the signature and final ratification of the treaty; and that the sole cause of the delay arose from those grants, one of which was for land west of the Perdido. 2 Peters, 312. Those having been annulled by the king, were excepted from confirmation, leaving all other fair grants within the stipulations of the eighth article, according to the declared intention of both negotiators of the treaty, of the parties thereto, and its true construction. Another decisive consideration of the effect of this treaty is presented by taking it in connexion with the treaty of 1803, and the various acts of the political departments of this government before referred to; it applied to a territory which formed part of thestates of this Union, and to its inhabitants, and other proprietors of land, who hold their property by the most sacred guarantee, and were already in the full fruition of *388 all the rights of citizens of the United States, and the states to which the territory had been annexed.
It must be remembered, that as the United States claimed the territory west of the Perdido, in virtue of the treaty of 1803, they must hold it subject to its obligations and the terms of the cession; and that by first governing it as a portion of the territory of the United States, and afterwards annexing it to the adjacent states, the rights of property were protected by the ordinance of 1787, the constitution of the states, and of


the United States. No new guarantee was given to the grantees of Spain in the disputed territory, by the treaty of 1819; but it was a renewal of all former pledges of the United States by the treaty of 1803, their acts, and the constitution, to neither of which Spain was a party; but as Spain would neither cede nor abandon her claim without a renewed pledge of nation to nation, in the most solemn of all international acts, the pledge was renewed both to the king, his subjects, and grantees; which was additional to all the previous promises and obligations of the United States to protect property, fairly and lawfully acquired, and maintain its free enjoyment.
There is another view in which the treaty of 1819 must beobserved and performed by civil officers and others, if any future act of legislation is necessary to give it validity or effect, by the king as to the cession, or by the United States as to the clause of confirmation. If the question was new, it would seem to be settled by the Constitution; for if a treaty made under its authority, is a supreme law of the land, it would be a bold proposition, that an act of Congress must be first passed in order to give it effect as such; and equally bold to assert, as the American view of the faith of treaties by the law of nations, that its stipulations may be performed or not, at the discretion of Congress. If on the principles


made, and negotiation still continued; whereas, if the territory west of the Perdido, is ceded by the treaty, every clause has full effect. There is a most marked distinction between the two treaties in one respect: by that of 1803, there was an out and out purchase of territory, to which the United States had no claim or pretension; both parties dealt at arms' length; there was nothing to compromise, no previous differences to settle; the subject of the cession was a province owned by France, in the plenitude of sovereignty, in propriety and dominion, in her actual possession as a government de facto and de jure, which she ceded to the United States for a specified money consideration. 2 Peters, 303.
Another distinction is equally marked and prominent.Court adverse to such grant, founded solely on the supposed authority of those two cases, and at variance with a uniform course of adjudication, before and after; may be deemed worthy of reconsideration.
1. In Soulard vs. The United States, this Court declared, that the United States, as a just nation, regarded the stipulation of the third article of the Louisiana treaty, for the protection of the property of the inhabitants, "as the avowal of a principle which would have been held equally sacred though it had not been inserted in the contract." 4 Peters, 515, S.P. 10 Peters, 330.
"That the term `property,' as applied to lands, comprehends every species of title, inchoate or complete;" those rights which lie in contract, executory or executed. "In this respect, the relation


of the inhabitants to their government is not changed. The new government takes the place of that which has passed away." 4 Peters, 512.
"This is the sentiment by which the government of the United States is animated, and which it has infused into its legislation." 4 Peters, 512.
In alluding to this stipulation, the Court say, in Delassus vs. The United States, "that the perfect inviolability of property among these rights, all will assert and maintain."
"The right of property then is protected and secure by this *391 treaty; and no principle is better settled in this country, than that an inchoate title to lands is property." 9 Peters, 133.
"Independent of treaty stipulation, this right would be held sacred."
"The language of the treaty excludes every idea of interfering with privateproperty; of transferring lands which had been severed from the royal domain. The people change their sovereign. Their right to property remains unaffected by the change." 9 Peters, 133.
In the City of New Orleans vs. De Armas it was held, that a patent from the United States, pursuant to an act of Congress, could not "operate to destroy any previous existing title, vested under the pre-existing government, as a principle applicable to every grant, that it cannot affect pre-existing titles." 9 Peters, 236.
In the United States vs. Smith, it is laid down as a settled principle by the Court, that if the king had by his own, or the acts of his lawful authorities, become a trustee for the claimant of lands, it amounted to the severance thereof


from the royal domains, (10 Peters, 331;) and that the United States have put themselves in the place of Spain. 10 Peters, 335.
In New Orleans vs. The United States, the effect of the Louisiana treaty was most fully and ably considered by the Court, in a unanimous opinion. The property in controversy was the quay in front of the city, which was claimed by the city by a dedication thereof to its use by France and by Spain. The United States claimed it as part of the royal domain, and as such ceded to them by the treaty; on which the Court thus speak: "If the common in contest, under the Spanish crown formed a part of the public domain, or the crown lands, and the king hadpower to alien it as other lands, there can be no doubt that it passed under the treaty to the United States, and they have a right to dispose of it the same as other public lands. But if the King of Spain held the land in trust for the use of the city, or only possessed a limited jurisdiction over it, principally, if not exclusively for police purposes, was the right passed to the United States under the treaty?" 10 Peters, 736.
This question is answered in the decision of the Court, "that, in their opinion, neither the fee of the land in controversy, nor the right to regulate its use, is vested in the United States." 10 Peters, 737.
2. As this opinion can neither require or receive


any weight by any remarks of mine, I now proceed to notice the adjudications of this Court in cases arising under the Florida treaty, in relation to the territory east of the Perdido, including East Florida.
The first was the American Insurance Company vs. Canter, in which the opinion of the Court is too important to be referred to otherwise than in their words: "The course which the argument has taken will require that in deciding this question the Court should take into view the relation in which Florida stands to the United States." 1 Peters, 542.
"The Constitution confers absolutely on the government of the *392 Union the powers of making war and of making treaties; consequently that government possesses the power of acquiring territory, either by conquest orby treaty.
"The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory becomes a part of the nation to which it is annexed; either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such transfer of territory, it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory. The


same act which transfers their country transfers the allegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed; although that which regulates the intercourse and general conduct of individuals, remains in force until altered by the newly created power of the state.
"On the 2d February, 1819, Spain ceded Florida to the United States. The sixth article of the treaty of cession contains the following provision: "The inhabitants of the territories which his Catholic Majesty cedes to the United States by this treaty `shall be' incorporated in the Union of the United States, as soon as may be consistent with the principles of the federal Constitution; and admitted to the enjoyment of the privileges, rights, and immunities of the citizens ofthe United States."
"This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition independent of stipulation. They do not however participate in political power  they do not share in the government, till Florida shall become a state. In the mean time, Florida continues to be a territory of the United States; governed by virtue of that clause of the Constitution which empowers Congress to make all needful regulations respecting the territory or other property belonging to the United States."
"It has been already stated, that all the laws which were in force in Florida while a province of


Spain, those excepted which were political in their character, which concerned the relations between the people and their sovereign, remained in force until altered by the government of the United States. Congress recognises this principle, by using the words `laws of the territory now in force therein.' No laws could then be in force but those enacted by the Spanish government." Ibid. 544.
These principles apply to all parts of Florida, as ceded by Spain, under either treaty, and to the disputed territory, as well as other parts of either cession; the local laws in force at the time the treaties respectively took effect, were the rules of property and right *393 under both; and if the treaty of 1819 was the law of the land in 1828, andUnited States, and the people and proprietors of the disputed territory, consequent upon the treaty of 1803, the military occupation in virtue of the right of the United States, by that cession, from 1810 to 1821; as a conquest by the right of war, or as a new acquisition by the cession of Spain in 1821, subject to the stipulation it contained. Take it in any way, the law of nations protected all rights of property, from whatever power those rights arose; and it is not a little remarkable, that every principle of this case was overlooked at the next term, and this treaty declared not to be the law of the land.
Next came the case of Foster and Elam vs. Neilson, in 1829, wherein the majority of


the Court, against the opinion of the Chief Justice and Justice ____, held, that, in relation to the grants referred to in the eighth article of the treaty, it was only a contract on the part of the United States, to ratify and confirm them by an act of Congress, which was necessary to execute that part of the treaty; the opinion of the Court taking no notice of the law or usage of nations, or of any former decisions. But the Court were unanimous in their opinion, that if the eighth article had declared that all grants, &c., shall be valid to the same extent as if the ceded territories had remained under the dominion of the king, or "that these grants are hereby confirmed, the treatywould have acted directly on the subject, and would have repealed those acts of Congress which were repugnant to it." 2 Peters, 314. That if the second article had omitted the words, "which belong to him," the "United States, by accepting the cession, might have sanctioned the right to make the cession, and have been bound to consider the eighth article as coextensive with the second. The stipulation of the eighth article might have been construed to be an admission that West Florida, to its full extent, was ceded by this treaty." Ibid. 311. "That if the ratification by the king was an exception to the stipulation of the eighth article for confirming grants, the excepted grants would have been withdrawn from the eighth article, by the exception,


and would otherwise have been within its provisions." "Consequently, that all other fair grants, within the time specified, were as obligatory on the United States as on his Catholic Majesty." Ibid. 313.
It is evident, therefore, that so far as this case depended on the construction of the treaty, it turned on three positions: 1. Whether the *394 second article ceded the whole territory of West Florida. 2. Whether the words of the eighth article operated directly on the grants, so as to confirm them by its own force. 3: Whether the ratification by the king operated as an exception to the eighth article, by excluding the three grants. Now, had the Court noticed the third article, in connection with the second, as was done by the king inhis ratification, all difficulty respecting the words, "which belong to him," would have been removed; for the king declares that the cession was by both articles. 6 Laws U.S. 628.
By the first clause of the third article, "the boundary line between the two countries west of the Mississippi," is the Sabine, to the 32° north latitude, thence north to Red river, &c. By the second clause, the parties agree to cede and renounce all their rights, &c., to the territory described by that line; the United States to all west and south of it; and, "in like manner, his Catholic Majesty cedes to the United States, all his rights, claims, and pretensions, to any territories east and north of said line, and for himself, his heirs, and successors,


renounces all claim to the said territories forever." 6 Laws U.S. 616.
The words of this clause are broad enough to embrace the whole territory east of the Mississippi; the words "claims" and "pretensions," are peculiarly appropriate to that part which lies west of the Perdido; and, when taken in connection with the second article, divest it of all the doubts, by the use of the words "which belong to him." So that their combined effect is a cession by one party, and an acceptance by the other, of all the rights, claims, and pretensions of Spain, to all the territory east of the Sabine, including what was known as East and West Florida, and to which the stipulation of the eighth article would apply, by the opinion ofthe Court.
The second point was decided in the United States vs. Arredondo, in 1832, in which the Court held, "That the United States never seem to have claimed any part of what could be shown by legal evidence and local law, to have been severed from the royal domain before their right attached," (6 Peters, 717;) whether the severance was by "patent, grant, concession, warrant, order of survey, or any other act which might have been perfected into a complete title, by the laws, usages, and customs of Spain." Ibid. 721.
"If a question arises what lands were ceded, (to the United States,) the answer is found in the second article, vacant lands; not those which had been individually appropriated, and were not the subjects of a hostile and


adversary grant. The renunciation by the third article, by both parties, was only of their respective rights, claims, and pretensions to the territory renounced; neither government had any right to renounce over lands, to which a title had been conveyed to their citizens or subjects respectively. Thus deciding on those articles of the treaty, and in conformity to the rules and principles before established, we should be of opinion, that the land embraced in the grant was no longer a part of the royal domain at the date of the treaty, but private property, land not vacant, *395 but appropriated by a prior and valid deed." Ibid. 735, 736. "The eighth article was evidently intended for the benefit of those who held grants, and were considered as proprietorsof land in Florida; and to give it a construction which would remove and limit rights thus intended to be secured, would deprive them of the benefit of the fair construction of the second and third articles of the treaty, and leave them in a worse situation than if the eighth had been omitted altogether." "The honour of the king was concerned most deeply, in not doing an act which would deprive his subjects of what he had granted to them," &c., "and to not leave the confirmation of grants by lawful authority, at the pleasure of the United States." Before the execution of the treaty, there was inserted a stipulation in "Spanish, by which the ceded territory should pass into the hands of the United States, with


the declared instruction by the King of Spain, that the grants referred to operated in presenti, as an exception and reservation of lands granted in his name, and by his authority, using words which expressed his intention in his own language; that the grants were ratified and confirmed in the very act of cession, subject to no future contingency." Ibid. 737.
Such was declared to be its effect, according to the stipulations of the treaty, the law of nations, the acts of Congress, and the laws of Spain. "If the title was confirmed presently, the king had within the bounds of the grant, no right or title to convey, and the United States, could receive none. If no future act of theirs was necessary for their confirmation and ratification,the legal title, much less the beneficial interest never passed to them, (the United States.) Ibid. 738. On a deliberate construction of that article, the words, "shall be ratified and confirmed," were held to mean, "shall remain ratified and confirmed; and that the United States, in accepting the cession, could assert no claim to lands thus expressly excepted;" and the Court declared explicitly, that the grants included in the eighth article, and those referred to in the ratification by the king, "were confirmed and annulled respectively, simultaneously with the ratification and confirmation of the treaty, and that when the territory was ceded, the United States had no right in any of the lands embraced in the confirmed grants." Ibid. 741, 742.
The same principles were adopted in the United


States vs. Percheman, and in language most emphatic and unequivocal, throughout the opinion delivered by the Chief Justice. After reciting the first clause of the second article, which ceded the territory in general terms, the Court observe: "A cession of territory is never understood to be a cession of the property of the inhabitants." 7 Peters, 87. "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 second clause of the second article, is thus referred to: "The special enumeration could not have been made, had the first clause of thePeters, 519; and "on the fullest consideration (it has been) held, that the treaty operated as a present, perfect, and absolute confirmation of all the grants which come within its provisions. That no act of the political department remained to be done; that it was an executed treaty, the law of the land, and a rule for the Court; a rule of title and property," &c. 12 Peters, 747.
In the United States vs. Kingsley, decided in 1838, the Court took broader ground in favour of Spanish titles, than had been assumed in any former case in relation to the construction of the treaty, and expressed their opinion in language of peculiar force, and with a more appropriate reference to its spirit, meaning, and words, than is to be


effect of the cession and the construction of the treaty, which were expressed by the Court in Foster and Elam vs. Neilson, and is decisive of the two first points. Their opinion in the case of the United States vs. Clarke, in 1834, is equally decisive of the question whether the ratification by the king, in annulling the three grants to Alagon, Punon Rostro, and De Vargas, is an exception or proviso to the eighth article; on which subject this is the language of the Court, in 8 Peters, 463: "While Florida remained a province of Spain, the right of his Catholic Majesty, acting in person or by his officers, to distribute lands according to his pleasure, was unquestioned. That he was in the constant exercise of thisand cannot now demand further and additional grounds. The acquisition of the Floridas was an object of immense importance to the United States. It was urged by other considerations of a still more powerful operation, in addition to vacant lands. It will be regarded, while our Union lasts, as the highest praise of the administration which made it, and of the negotiator who accomplished it. It cannot be doubted *398 that the terms were highly advantageous, and that they were so considered by all. The United States were satisfied, and had reason to be satisfied, with the provision excluding grants made subsequent to the 24th January, 1818, when the fraud on that provision was prevented by the terms of the ratification of the treaty. All other concessions made


construction, if then adopted, would have made the treaty a rule of decision for the Court, have confirmed the grant by its own force, and repealed the fourteenth section of the act of 1804, and all repugnant laws; and made all grants before January, 1818, as obligatory on the United States as they were on Spain, excepting only the three which were cancelled by the ratification of the king. 2 Peters, 311-315.
3. I now proceed to the cases which have arisen in this Court under the treaty of 1819, in relation to grants of land within the disputed territory, made after 1803; and under the kindred treaty *399 between Georgia and the United States, on grants made by Great Britain and Spain, while those governments occupied the territoryin dispute between them, (Georgia and the United States.)
Harcourt vs. Gaillard arose on a grant made by the British governor of West Florida, for land north of the 31° N. lat., and within the charter limits of Georgia; but which was then under the government, and in the possession of Great Britain. The grant was held void, because it was made during the war of the Revolution; and the treaty of peace contained no stipulation in favour of grants previously made, or any cession of territory to the United States; but was an acknowledgment and recognition of their pre-existing rights. But the Court also held, that if the grant had been made before the war, "it might have had the benefit of those principles of public law which


are applied to territories acquired by conquest;" but the question "is one of disputed boundaries, within which the power which succeeds in war is not obliged to recognise as valid any acts of ownership exercised by his adversary." 12 Wheat. 525. The Court then refer to the eighth article of the treaty of Ghent, as an illustration of this doctrine, which is this: "It is agreed, &c. that in case any of the islands, &c. which were in the possession of one of the parties prior to the commencement of the present war between the two countries, should, &c. fall within the dominions of the other party, all grants of land made previous to the commencement of the war, by the party having had such possession, shall beas valid as if such island, &c. had been adjudged to be within the dominions of the party having had such possession," &c. 1 Laws U.S. 699. Whereupon the Court use this language: "And such is unquestionably the law of nations. War is a suit prosecuted by the sword, and when the question to be decided is one of original claim to territory; grants of soil made flagrante bello by the party that fails, can only derive validity by treaty stipulation." Laws U.S. 528.
The next case arose on a grant made by the Spanish government of West Florida, in 1795, before the treaty of limits between Spain and the United States, for land north of the 31° north latitude, of which Spain was in possession at the time


of the grant; the Court decided this case on the same principles as were adopted in Poole vs. Fleeger, and applied to the compact between Kentucky and Tennessee. These were the principles laid down in their opinion: "It is the usage of all the civilized nations of the world, when territory is ceded, to stipulate for the property of its inhabitants," &c. "Had Spain considered herself as ceding territory, she would not have neglected a stipulation, which every sentiment of justice and national honour would have demanded, and which the United States would not have refused. But instead of requiring an article to that effect, she has expressly stipulated for the withdrawal of the settlements made within what the treaty admits to be the territory of the Unitedand Spain, in 1783, the Court say, "In the treaty with Spain, the Floridas were ceded to that power without any description of boundary." "The United States continued to assert a claim to the 31° of north latitude, while Spain maintained perseveringly her pretensions further north. This was the subject of long and fruitless discussion between the two governments, which was terminated by the treaty, &c., of 27th October, 1795, &c. This treaty declares and agrees that the line which was described in the treaty of peace between Great Britain and the United States, as their south boundary, shall be the line which divides their territory from East and West Florida."
"This article does not import to be a cession of territory, but the adjustment of a controversy between


the two nations. It is understood as an admission that the right was originally in the United States," &c. 534.
This opinion is confirmed by a subsequent part of the same article. That "the settlements of either party in the territory of the other, according to the above mentioned boundaries, shall be withdrawn within six months after the ratification of this treaty, or sooner, if it be possible; and that they shall be permitted to take with them all the goods and effects which they possess." 12 Wheat. 534, 535. 544.
This state of facts in Harcourt vs. Gaillard, and Henderson vs. Poindexter, shows the grounds on which the British grant, made before the treaty of peace with Great Britain, and the Spanish grant, made before the treaty of 1795,with Spain, for lands within the disputed territory, while in the possession of those powers, as governments de facto, were held not to be valid under those treaties or the law of nations, to have been exclusively these. The British grant was made flagrante bello, the treaty of peace neither ceded or relinquished any territory to the United States, or to particular states; it was a solemn recognition and acknowledgment of their pre-existing rights.
The Spanish grant, though made during peace, became void by the admission of Spain, in the treaty of 1795, of the original right of the United States to the territory in which the land was situated; by the express stipulation, that the settlers within the boundary established, should remove, with their effects, within a stipulated


time; and that there was no stipulation in the treaty, for the protection of the inhabitants, in the enjoyment of property held under Spanish grants previously made.
*401 There was another feature, common to both cases, which was noticed by the Court, growing out of the compact with Georgia, and consequent acts of Congress. This compact was made by "article of agreement and cession," entered into the 24th April, 1802, "between the United States and the state of Georgia," in virtue of an act of Congress, "for an amicable settlement of limits with that state," and a law thereof.
By art. 1. "Georgia cedes to the United States all the right, title, and claim to the jurisdiction and soil of the lands within her boundary, west of the river Chatahouchee,upon the following express conditions, and subject thereto, that is to say," &c. Secondly, "That all persons who, on the 27th October, 1795, (the date of the treaty with Spain,) were actual settlers within the territory thusceded, `shall be confirmed' in all the grants legally and fully executed prior to that day, by the former British government of West Florida, or by the government of Spain, and in the claims which may be derived from any actual survey or settlement made under the act of the state of Georgia," &c., passed 7th February, 1785.
By art. 2. "The United States accepted" this cession, on the conditions therein expressed, and ceded all their right, title, and claim to soil and jurisdiction, of any land east of the line of cession,


by Georgia to the United States.
By art. 3. "The present act of cession and agreement shall be in full force as soon as the legislature of Georgia shall have given its assent to the boundaries of this cession," &c. No law or other act of assent was therefore necessary by the United States to give it full effect.
In April, 1802, Georgia passed an act to ratify and confirm the agreement, which enacted, "That the said deed or articles of agreement and cession be, and the same hereby is, and are fully, absolutely, and amply, ratified and confirmed in all its parts; and hereby is and are declared to be binding and conclusive on the said state, her government, and citizens forever." 1 Laws U.S. 488.
The act of Congressunder which this compact was made, authorized the commissioners appointed by the United States, "to adjust and determine," "all interfering claims of the United States and Georgia, to territory west of the Chatahouchee, north of 31° north latitude, and south of the cession made by South Carolina," &c. 1 Story, 494. A subsequent act gave them power, "finally to settle by compromise," &c., "any claims mentioned in the former act, and on behalf of the United States, to receive a cession of any lands therein mentioned, or of the jurisdiction thereof, on such terms as to them shall seem reasonable." Ibid. 779.
Subsequent laws provided for carrying this compact into effect. 2 Story, 893. 952. 955.
By now comparing the treaty of 1819, with the treaty of peace with Great


Britain, in 1783, it is palpable that it contains no recognition or acknowledgment of the pre-existing right of the United States to the disputed territory; it therefore does not come within *402 the principles which the Court applied to the British grant, arising from the nature of that treaty; nor does the principle of the law of nations, in relation to grants made during a war, apply to grants made by Spain, between 1804 and 1810, while in peaceful possession of the territory. A comparison of the two treaties with Spain, places them in more striking contrast in their titles and the stipulations of their respective articles. That of 1795 was declared to be a "Treaty of Friendship, Limits, and Navigation;" that of 1819, was declared to bea "Treaty of Amity, Settlement, and Limits."
The declared object of the first was "to establish several points, the settlement whereof will be productive of general advantage and reciprocal utility to both nations." Vide 1 Laws U.S. 262. Its stipulations have been noticed. The declared object of the second was to "settle, terminate, and put an end to all their differences and pretensions," so as "to consolidate on a permanent basis," &c.
Art. 5. "The inhabitants of the ceded territories shall be secured in the free exercise of their religion without any restriction; and all those who may desire to remove to the Spanish dominions, shall be permitted to sell or export their effects at any time, without being subject, in either case to duties."
Art. 6. "They shall be incorporated


into the Union," &c.; "and admitted to the enjoyment of all the rights, privileges, and immunities of citizens of the United States."
Art. 7. "The officers and troops of his Catholic Majesty," &c., "shall be withdrawn, and possession of the places occupied by them shall be given within six months after the exchange," &c.
Art. 8. "All grants of lands," &c., "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," &c.
This treaty, it must be remembered, had been preceded by the same mutual claims and pretensions of both parties, perseveringly maintained, during long and fruitless discussions between the two governments, as had been the case before the treaty of 1795; and that the possessionof the territory was held by the United States, under the most solemn pledges by the President and Congress, that it was in their hands, subject to future negotiation, and that the inhabitants should be protected in the enjoyment of their liberty, property, and religion.
Now let this treaty have the benefit of the principles of the law of nations, which were laid down by the Court in the two cases in 12 Wheaton, as a treaty of cession, settlement, and peace, or as a relinquishment by Spain and purchase by the United States, or as a compact, deed, or articles of agreement; let it receive the same construction and effect, as was given to the agreement, or as the Court called it, the treaty with Georgia, and then


to the adjacent states?
7. Without a treaty or specific pledge, would not the Constitution of the United States protect the inhabitants in their rights of persons and property, by the very act of such annexation, accepted by a state?
8. Are they not so protected, as the inhabitants of a territory of the United States, under the ordinance of 1787, which was in force in this territory?
9. Does not the law of nations give to these grants the same protection as in the case of conquest, or military occupation, until Congress shall, in virtue of the law of a conqueror, declare them void, and resume the lands?
And, 10. Can questions arising in cases brought to recover property embraced by such grants, be decided by the Courts of the UnitedStates, in virtue of the judicial power of the Constitution, and twenty-fifth section of the Judiciary Act of 1789, or by special tribunals appointed under the acts of Congress, with power to decide on the validity of titles acquired under such grants?
So far as the solution of these questions depends on the stipulations of the treaty of 1819, and the laws of nations applicable thereto, the principles laid down by the Court in Harcourt vs. Gaillord, and Henderson vs. Poindexter, already quoted, are so full, and so completely answer them, as to save the necessity of repeating them. That treaty presents the reverse of those then under consideration, and the grant in the present case, is one which must have been then held valid on every ground assumed