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strue according to circumstances, was ject of fair and friendly negotiation a measure which the strong and the and adjustment." politic might not be disinclined to en- In April, 1812, congress passed "an ploy,

act to enlarge the limits of the state of However this way be, it is, we think, Louisiana." This act describes lines incontestible, that the American con- which comprehend the land in controstruction of the article, if not entirely versy, and declares that the country free from question, is supported by ar- included within them shall become and guments of great strength, which can- form a part of the state of Louisiana. not be easily confuted.

In May of the same year, another In a controversy between two na- act was passed, annexing the residue tions concerning national boundary, it of the country west of the Perdido to is scarcely possible that the courts of the Mississippi territory. either should refuse to abide by the And in February, 1813, the presimeasures adopted by its own govern- dent was authorized “to occupy and ment. There being no common trin hold all that tract of country called bunal to decide between them, each West Florida, which lies west of the determines for itself on its own rights, river Perdido, not now in possession and if they cannot adjust their diffe- of the United States." rences peaceably, the right remains On the third of March, 1817, conwith the strongest. The judiciary is gress erected that part of Florida which not that department of the government, had been annexed to the Mississippi to which the assertion of its interests territory, into a separate territory, callagainst foreign powers is confided; ed Alabama and its duty commonly is to decide The powers of government were exupon individual rights, according to tended to, and exercised in those parts those principles which the political de- of West Florida which composed a partments of the nation have esta part of Louisiana and Mississippi, re. blished If the course of the nation spectively; and a separate government has been a plain one, its courts would was erected in Alabama. U. S. L. c. hesitate to pronounce it erroneous. 4. 409.

We think, then, however individual In March, 1819, “ congress passed judges might construe the treaty of an act to enable the people of AlabaSt. Ildefonso, it is the province of the ma to form a constitution and state court to conform its decisions to the government." And in December, will of the legislature, if that will has 1819, she was admitted into the union, been clearly expressed..

and declared one of the United States The convulsed state of European of America. The treaty of amity, setSpain affected her influence over her tlement and limits, between the Unicolonies; and a degree of disorder ted States and Spain, was signed at prevailed in the Floridas, at which the Washington on the 22d day of FebruUnited States could not look with in- ary, 1819, but was not ratified by Spain difference. In October, 1810, the till the 24th day of October, 1820 ; nor president issued his prociamation, di- by the United States, until the 22d recting the governor of the Orleans day of February, 1821. So that Alaterritory to take possession of the bama was admitted into the union as country as far east as the Perdido, and an independent state, in virtue of the to hold it for the United States. This title acquired by the United States 10 measure was avowediy intended as an her territory under the treaty of April, assertion of the title of the United 1803. States ; but as an assertion, which was After these acts of sovereign power rendered necessary in order to avoid over the territory in dispute, asserting eyils which might contravene the the American construction of the wishes of both parties, and which treaty by which the government claims would still leave the territory "a sub- it, to maintain the opposite construction in its own courts would certainly rangements made between the two go. be an anomaly in the history and vernments. practice of nations. If those de part- A “treaty of amity, settlement, and ments which are intrusted with the limits, between the United States of foreign intercourse of the nation, America and the king of Spain," was which assert and maintain its interests signed at Washington on the 22d day against foreign powers, have unequi- of February, 1819. By the ed article vocally asserted its rights of dominion “his catholic majesty cedes to the over a country of which it is in pos- United States in full property and sosossion, and which it claims under a vereignty, all the territories which betreaty ; if the legislature has acted on long to him, situated to the eastward the construction thus asserted, it is not of the Mississippi, known by the name in its own courts that this construction of East and West Florida." is to be denied. A question like this The 8th article stipulates, that " all respecting the boundaries of nations, the grants of land made before the is, as has been truly said, more a poli- 24th of January, 1818, by his catholic tical than a legal question ; and in its majesty, or by his lawful authorities, discussion, the courts of every country in the said territories ceded by his mamust respect the pronounced will of jesty to the United States, shall be ra. the legislature. Had this suit been tified and confirmed to the persons in instituted immediately after the pas- possession of the lands, to the same sage of the act for extending the extent that the same grants would be bounds of Louisiana, could the Spa- valid if the territories had remained nish construction of the treaty of St. under the dominion of his catholic Hdefonso have been maintained ? majesty." Could the plaintiff have insisted that The court will not attempt to conthe land did not lie in Louisiana, but ceal the difficulty which is created by in West Florida ; that the occupation these articles. of the country by the United States It is well known that Spain had uniwas wrongful; and that his title under formly maintained her construction of a Spanish grant must prevail, because the treaty of St. Ildefonso.-His cathothe acts of congress on the subject lic majesty had perseveringly insisted were founded on a misconstruction of that no part of West Florida had been the treaty? If it be said, that this ceded by that treaty, and that the statement does not present the ques- whole country which had been known tion fairly, because a plaintiff admits by that name still belonged to him. the authority of the court, let the par. It is then a fair inference fron the ties be changed. If the Spanish gran- language of the treaty, that he did not tee had obtained possession so as to be mean to retrace his steps, and relinthe defendant, would a court of the quish his pretensions ; but to cede on United States maintain his title under a sufficient consideration all that he a Spanish grant, made subsequent to had claimed as his; and consequentthe acquisition of Louisiana, singly on ly, by the 8th article, to stipulate for the principle that the Spanish con- the confirmation of all those grants struction of the treaty of St. Ildefonso which he had made while the title rewas right, and the American construc- mained in him. tion wrong? Such a decision would, But the United States had uniformwe think, have subverted those princi- ly denied the title set up by the crown ples which govern the relations be- of Spain; had insisted that a part of tween the legislative and judicial de West Florida had been transferred to partments, and mark the limits of France by the treaty of St. Ildefonso, each.

and ceded to the United States by the If the rights of the parties are in treaty of April, 1803; bad asserted this any degree changed, that change must construction by taking actual possesbe produced by the subsequent ar- sion of the country; and bad extended

its legislation over it. The United import, extends to the whole territory States, therefore, cannot be understood which was ceded. The stipulation to have adınitted that this country be- for the incorporation of the inhabitants longed to his catholic majesty, or that of the ceded territory into the union, it passed from hiin to them by this is co-extensive with the cession. But article. Had his catholic majesty the country in which the land in conceded to the United States all the troversy lies, was already incorporated territories situated to the eastward of into the union. It composed a part the Mississippi known by the name of of the state of Louisiana, which was East and West Florida," omitting the already a member of the American words “ which belong to him," the confederacy. United States in receiving this ces. A part of West Florida lay east of sion, might have sanctioned the right the Perdido: and to that the right of to make it, and might have been bound his catholic majesty was acknowto consider the 8th article as co-exten- ledged. There was then an ample sive with the second. The stipulation subject on which the words of the cesof the 8th article might have been con- sion might operate, without discarding strued to be an admission that West those which limit its general expresFlorida to its full extent was ceded by sions. this treaty.

Such is the construction which the But the insertion of these words Court would put on the treaties by materially affects the construction of which the United States have acquired the article. They cannot be rejected the country east of New-Orleans. But as surplusage. They have a plain an explanation of the 8th article seems meaning, and that meaning can be no to have been given by the parties, which other than to limit the extent of the may vary this construction.. cession. We cannot say they were in It was discovered that three largo serted carelessly or unadvisedly, and grants, which had been supposed, at must understand them according to the signature of the treaty, to have their obvious import.

been made subsequent to the 24th of It is not improbable that terms were January, 1818, bore a date anterior to selected which might not compromise that period. Considering these grants as the dignity of either government, and fraudulent, the United States insisted which each might understand, con- on an express declaration annulling sistently with its former pretensions. them. This demand was resisted by But if a court of the United States Spain; and the ratification of the would have been bound, under the treaty was for some time suspended. state of things existing at the signa- At length his catholic majesty yielded, ture of the treaty, to consider the ter. and the following clause was introritory then composing a part of the duced into bis ratification : “Desirous state of Louisiana as rightfully belong. at the same time of avoiding any doubt ing to the United States, it would be or ambiguity concerning the meaning difficult to construe this article into an of the 8th article of the treaty, in readmission that it belonged rightfully spect to the date which is pointed out to his catholic majesty.

in it, as the period for the confirmation The 6th article of the treaty may be of the grants of lands in the Floridas considered in connexion with the se- made by me, or by the competent aucond. The 6th stipulates “ that the thorities in my royal name, wbich inhabitants of the territories which his point of date was fixed in the positive catholic majesty cedes to the United understanding of the three grants of States by this treaty, shall be incorpo- land made in favour of the duke of rated in the union of the United States, Alagon, the count of Punon Rostro, as soon as may be consistent with the and Don Pedro de Vargas, being anprinciples of the federal constitution.” nulled by its tenor; I think it proper

This article according to its obvious to declare, that the said three grants

have remained and do remain entire- to these grants, which might so niately annulled and invalid : and that nei- rially interfere with its own rights and ther the three individuals mentioned, policy iri its future disposition of the nor those who may have title or inte. ceded lands; and not allow them to rest through them, can avail them become the subject of judicial investiselves of the said grants at any time or gation ; while other grants, though in any manner; under which explicit deemed by it to be invalid, might be declaration, the said 8th article is to left to the ordinary course of the law. be understood as ratified." One of The form of the ratitication ought not, these grants, that to Vargas, lies west in their opinion, to change the natural of the Perdido.

construction of the words of the 8th It has been argued, and with great article, or extend them to embrace force, that this explanation forms a grants not otherwise intended to be part of the article. It may be consi. confirmed by it. An extreme solicidered as if introduced into it as a pro- tude to provide against injury or inviso or exception to the stipulation, in convenience, from the known existfavour of grants anterior to the 241h of ence of such large grants, by insisting January, 1818. The article may be upon a declaration of their absolute understood as if it had been written, nullity, can in their opiniop furnish no that “all the grants of land made be satisfactory proof that the government fore the 24th of January, 1818, by his meant to recognise the small grants us catholic majesty or his lawful authori. valid, which in every previous act and ties in the said territories, ceded by his struggle it bad proclaimed to be void, majesty to the United States, (except as being for lands within the American those made to the duke of Alagon, territory. the count of Punon Rostro and Don Whatever difference may exist rePedro de Vargas,) shall be ratified and specting the effect of the ratification, confirmed, &c."

in whatever sense it may be underHad this been the form of the origi. stood, we think the sound construcnal article, it would be difficult to re- tion of the eighth article will not enable sist the construction that the excepted this court to apply its provisions to the grants were withdrawn froin it by the present case. The words of the artiexception, and would otherwise have cle are, that “all the grants of land been within its provisions. Conse- made before the 24th of January, quently, that all other fair grants with 1818, by bis catholic majesty, &c. in the time specified, were as obligato shall be ratified and confirmed to the ry on the United States, as on his ca. persons in possession of the lands, to tholic majesty.

the same extent that the same grants One other judge and myself are in. would be valid if the territories had clined to adopt this opinion. The remained under the dominion of his majority of the court, however, think catholic majesty." Do these words differently. They suppose that these act directly on the grants, so as to three large grants being made about give validity to those not otherwise the same time, nder circumstances valid; or do they pledge the faith of strongly indicative of unfairness, and the United States to pass acts which two of them lying east of the Perdido, shall ratify and confirm them? might be objected to on the ground of A treaty is in its nature a contract fraud common to them all : without between two nations, not a legislative implying any opinion that one of act. It does not generally effect, of itthem, which was for lands lying with self, the object to be accomplished, esin the United States, and most proba- pecially so far as its operation is intrably in part sold by the government, territorial ; but is carried into execucould have been otherwise confirmed. tion by the sovereign power of the reThe government might well insist on spective parties to the instrument. closing all future controversy relating In the United States a different prin

ciple is established. Our constitution cided and finally settled under the declares a treaty to be the law of the foregoing provisions of this act, conland. It is, consequently, to be re- taining a greater quantity of land than garded in courts of justice as equiva. the commissioners were authorized to lent to an act of the legislature, when decide, and which have not been reever it operates of itself without the aid ported as antedated or forged, &c., of any legislative provision. But shall be received and adjudicated by when the terms of the stipulation im- the judge of the superior court of the port a contract, when either of the district within which the land lies, parties engages to perform a particular upon the petition of the claimant," act, the treaty addresses itself to the po. &c. Provided, that nothing in this litical, not the judicial department; and section shall be construed to enable the legislature must execute the con- the judges to take cognizance of any tract, before it can become a rule for claim annulled by the said treaty, or the court.

the decree ratifying the same by the The article under consideration does king of Spain, nor any claim not prenot declare that all the grants made by sented to the commissioners or regis. his catholic majesty before the 24th ter and receiver. An appeal is allowof January, 1818, shall be valid to the ed from the decision of the judge of same extent as if the ceded territories the district to this court. No such act had remained under his dominion. It of confirmation has been extended to does not say that those grants are grants for lands lying west of the Pero hereby confirmed. Had such been its dido. language, it would have acted directly The act of 1804, erecting Louisiana on the subject, and would have repeal- into two territories, has been already ed those acts of congress which were mentioned. It annuls all grants for repugnant to it; but its language is, lands in the ceded territories, the title that those grants shall be ratified and whereof was at the date of the treaty confirmed to the persons in possession, of St. Ildefonso in the crown of Spain. &c. By whom shall they be ratified The grant in controversy is not brought and confirmed ? This seems to be the within any of the oxceptions from the language of contract; and if it is, the enacting clause. ratification and confirmation which T he legislature has passed many are promised must be the act of the le subsequent acts previous to the treaty gislature. Until such act shall be of 1819, the object of which was to passed, the court is not at liberty to adjust the titles to lands in the coun. disregard the existing laws on the sub- try acquired by the treaty of 1803. ject. Congress appears to have un- Thev cautiously coufirm to residents derstood this article as it is understood all incomplete titles to lands, for which by the court. Boards of commission- a warrant or order of survey had been ers have been appointed for East and obtained previous to the 1st of October, West Florida, to receive claims for 1800. lands; and on their reports titles to An act, passed in April, 1814, conlands not exceeding acres have firms incomplete titles to lands in the been confirmed, and to a very large state of Louisiana, for which a waramount. On the 23d of May, 1828, rant or order of survey had been grantan act was passed supplementary to ed prior to the 20th of December, the several acts providing for the set. 1803, where the claimant or the perinent and confirmation of private son under whom he claims was a resi. land claims in Florida ; the 6th sec- dent of the province of Louisiana on tion of which enacts, that all claims that day, or at the date of the conces. to land within the territory of Florida, sion, warrant, or order of survey; and embraced by the treaty between Spain were the tract does not exceed 640 and the United States of the 22d of acres. This act extends to those cases February, 1819, which shall not be de- only which had been reported by the

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