Images de page
PDF
ePub

[Foster & Elam vs. Neilson.]

lawful authorities, in the said territories ceded by his majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his Catholic majesty."

The Court will not attempt to conceal the difficulty which is created by these articles.

It is well known that Spain had uniformly maintained her construction of the treaty of St. Ildefonso. His Catholic majesty had perseveringly insisted that no part of West Florida had been ceded by that treaty, and that the whole country which had been known by that name still belonged to him. It is then a fair inference from the language of the treaty, that he did not mean to retrace his steps, and relinquish his pretensions; but to cede on a suflicient consideration all that he had claimed as his; and consequently, by the eighth article, to stipulate for the confirmation of all those grants which he had made while the title remained in him.

But the United States had uniformly denied the title set up by the crown of Spain; had insisted that a part of West Florida had been transferred to France by the treaty of St. Ildefonso, and ceded to the United States by the treaty of April, 1803; had asserted this construction by taking actual possession of the country; and had extended its legislation over it. The United States therefore cannot be understood to have admitted that this country belonged to his Catholic majesty, or that it passed from him to them by this *311] article. Had his Catholic majesty ceded to the United States "all the territories situated to the eastward of the Mississippi known by the name of East and West Florida," omitting the words "which belong to him," the United States in receiving this cession, might have sanctioned the right to make it, and might have been bound to consider the eighth article as co-extensive 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.

But the insertion of these words materially affects the construction of the article. They cannot be rejected as surplusage. They have a plain meaning, and that meaning can be no other than to limit the extent of the cession. We cannot say they were inserted carelessly or unadvisedly, and must understand them according to their obvious import.

It is not improbable that terms were selected which might not compromise the dignity of either government, and which each might understand, consistently with its former pretensions. But if a Court of the United States would have been bound, under the state of things existing at the signature of the treaty, to consider the territory then composing a part of the state of Louisiana as rightfully belonging to the United States, it would be difficult to construe this article into an admission that it belonged rightfully to his Catholic majesty."

[Foster & Elam vs. Neilson.]

The sixth article of the treaty may be considered in connexion with the second. The sixth stipulates "that 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."

This article, according to its obvious import, extends to the whole territory which was ceded. The stipulation for the incorporation of the inhabitants of the ceded territory into the Union, is coextensive with the cession. But the country in which the land in controversy lies, was already incorporated into the Union. It composed a part of the state of Louisiana, which was already a member of the American confederacy.

[*312

A part of West Florida lay east of the Perdido, and to that the right of his Catholic majesty was acknowledged. There was then an ample subject on which the words of the cession might operate, without discarding those which limit its general expressions.

Such is the construction which the Court would put on the treaties by which the United States have acquired the country east of New Orleans. But an explanation of the eighth article seems to have been given by the parties which may vary this construction.

It was discovered that three large grants, which had been supposed at the signature of the treaty to have been made subsequent to the 24th of January, 1818, bore a date anterior to that period. Considering these grants as fraudulent, the United States insisted on an express declaration annulling them. This demand was resisted by Spain; and the ratification of the treaty was for some time suspended. At length his Catholic majesty yielded, and the following clause was introduced into his ratification: "desirous at the same time of avoiding any doubt or ambiguity concerning the meaning of the eighth article of the treaty, in respect to the date which is pointed out in it as the period for the confirmation of the grants of lands in the Floridas made by me, or by the competent authorities in my royal name, which point of date was fixed in the positive understanding of the three grants of land made in favour of the duke of Alagon, the count of Punon Rostro, and Don Pedro de Vargas, being annulled by its tenor; I think it proper to declare, that the said three grants have remained and do remain entirely annulled and invalid; and that neither the three individuals mentioned, nor those who may have title or interest through them, can avail themselves of the said grants at any time or in any manner; under which explicit declaration the said eighth article is to be understood as ratified." One of these grants, that to Vargas, lies west of the Perdido.

It has been argued, and with great force, that this explanation forms a part of the article. It may be considered as if intro[*313 duced into it as a proviso or exception to the stipulation, in favour of grants anterior to the 24th of January, 1818. The article. may be understood as if it had been written that, "all the grants of land made before the 24th of January, 1818, by his Catholic majesty

[Foster & Elam vs. Neilson.]

or his lawful authorities in the said territories, ceded by his majesty to the United States, (except those made to the duke of Alagon, the count of Punon Rostro, and Don Pedro de Vargas,) shall be ratified and confirmed, &c."

Had this been the form of the original article, it would be difficult to resist the construction that the excepted grants were withdrawn from it 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.

One other judge and myself are inclined to adopt this opinion. The majority of the Court however think differently. They suppose that these three large grants being made about the same time, under circumstances strongly indicative of unfairness, and two of them lying east of the Perdido, might be objected to on the ground of fraud common to them all: without implying any opinion that one of them, which was for lands lying within the United States, and most probably in part sold by the government, could have been otherwise confirmed. The government might well insist on closing all future controversy relating to these grants, which might so materially interfere with its own rights and policy in its future disposition of the ceded lands; and not allow them to become the subject of judicial investigation; while other grants, though deemed by it to be invalid, might be left to the ordinary course of the law. The form of the ratification ought not, in their opinion, to change the natural construction of the words of the eighth article, or extend them to embrace grants not otherwise intended to be confirmed by it. An extreme solicitude to provide against injury or inconvenience, from the known existence of such large grants, by insisting upon a declaration of their absolute nullity, can in their opinion furnish no satisfactory proof that the government meant to recognise *the small grants as valid, which in every previous act and struggle it had proclaimed to be void, as being for lands within the American territory.

*314]

Whatever difference may exist respecting the effect of the ratification, in whatever sense it may be understood, we think the sound construction of the eighth article will not enable this Court to apply its provisions to the present case. The words of the article are, that "all the grants of land made before the 24th of January, 1818, by his Catholic majesty, &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 the territories had remained under the dominion of his Catholic majesty." Do these words act directly on the grants, so as to give validity to those not otherwise valid; or do they pledge the faith of the United States to pass acts which shall ratify and confirm them?

A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished; especially so far as its operation is infra territo

[Foster & Elam vs. Neilson.]

rial; but is carried into execution by the sovereign power of the respective parties to the instrument.

In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in Courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.

The article under consideration does not declare that all the grants made by his Catholic majesty before the 24th of January, 1818, shall be valid to the same extent as if the ceded territories had remained under his dominion. It does not say that those grants are hereby confirmed. Had such been its language, it would have acted directly on the subject, and would have repealed those acts of Congress which were repugnant to it; but its language is [*315 that those grants shall be ratified and confirmed to the persons in possession, &c. By whom shall they be ratified and confirmed? This seems to be the language of contract; and if it is, the ratification and confirmation which are promised must be the act of the legislature. Until such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject. Congress appears to have understood this article as it is understood by the Court. Boards of commissioners have been appointed for East and West Florida, to receive claims for lands; and on their reports titles to lands not exceeding acres have been confirmed, and to a very large amount. On the 23d of May, 1828, an act was passed supplementary to the several acts providing for the settlement and confirmation of private land claims in Florida; the sixth section of which enacts, that all claims to land within the territory of Florida, embraced by the treaty between Spain and the United States of the 22d of February, 1819, which shall not be decided and finally settled under the foregoing provisions of this act, containing a greater quantity of land than the commissioners were authorized to decide, and which have not been reported as antedated or forged, &c., shall be received and adjudicated by the judge of the Superior Court of the district within which the land lies, upon the petition of the claimant," &c. Provided, that nothing in this section shall be construed to enable the judges to take cognizance of any claim annulled by the said treaty, or the decree ratifying the same by the king of Spain, nor any claim not presented to the commissioners or register and receiver. An appeal is allowed from the decision of the judge of the District to this Court. No such act of confirmation has been extended to grants for lands lying west of the Perdido.

The act of 1804, erecting Louisiana into two territories, has been already mentioned. It annuls all grants for lands in the ceded territories, the title whereof was at the date of the treaty of St. Ilde

[Foster & Elam vs. Neilson.]

fonso in the crown of Spain. The grant in controversy is not brought within any of the exceptions from the enacting clause.

The legislature has passed many subsequent acts previous

316] to the treaty of 1819, the object of which was to adjust the titles to lands in the country acquired by the treaty of 1803.

They cautiously confirm to residents all incomplete titles to lands, for which a warrant or order of survey had been obtained previous to the 1st of October, 1800.

An act passed in April, 1814, confirms incomplete titles to lands in the state of Louisiana, for which a warrant or order of survey had been granted prior to the 20th of December, 1803, where the claimant or the person under whom he claims was a resident of the province of Louisiana on that day, or at the date of the concession, warrant, or order of survey; and where the tract does not exceed six hundred and forty acres. This act extends to those cases only which had been reported by the board of commissioners; and annexes to the confirmation several conditions, which it is unnecessary to review, because the plaintiff does not claim to come within the provisions of the act.

On the 3d of March, 1819, Congress passed an act confirming all complete grants to land from the Spanish government, contained in the reports made by the commissioners appointed by the President for the purpose of adjusting titles which had been deemed valid by the commissioners; and also all the claims reported as aforesaid, founded on any order of survey, requête, permission to settle, or any written evidence of claim derived from the Spanish authorities, which ought in the opinion of the commissioners to be confirmed; and which by the said reports appear to be derived from the Spanish government before the 20th day of December, 1803, and the land claimed to have been cultivated or inhabited on or before that day.

Though the order of survey in this case was granted before the 20th of December, 1803, the plaintiff does not bring himself within this act.

Subsequent acts have passed in 1820, 1822, and 1826, but they only confirm claims approved by the commissioners, among which the plaintiff does not allege his to have been placed.

Congress has reserved to itself the supervision of the titles *317] *reported by its commissioners, and has confirmed those which the commissioners have approved, but has passed no law, withdrawing grants generally for lands west of the Perdido from the operation of the fourteenth section of the act of 1804, or repealing that section.

We are of opinion, then, that the Court committed no error in dismissing the petition of the plaintiff, and that the judgment ought to be affirmed with costs.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the eastern district

« PrécédentContinuer »