Mr. Gilpin, for the United States:

This is one of a numerous class of cases which has of late years repeatedly claimed the consideration of this court. The rule laid down by the late Chief Justice is one that should be recognized whenever they are discussed-that "it would violate the usage of nations, and outrage the sense of justice, to annul private rights." To protect these is the duty of this court; and it was also unquestionably the desire and object of the executive government, when it made the treaty with Spain. The eighth article of that treaty was adopted after much discussion and change; and these discussions turned mainly on the provisions which were to guard private and existing interests. But, on the other hand, fraud is to be prevented; the public domain, of which the acquisition was costly, is to be protected; opportunities of deception growing out of the change of dominion are to be watched; titles are to be saved from embarrassment and conflict; and the regulations made imperative on the land holder by the Spanish laws are not to be wantonly relaxed. The Spanish land law in Florida was one of great liberality; occupation and cultivation formed the only price which the government required from its grantees; but this price it did absolutely require. While, therefore, we sacredly uphold every vested right, and reserve to every citizen of Florida the privileges he derived under the Spanish law, we must exact of him proof of a compliance with the conditions that law imposed, before we allow him the benefit of its privileges. We have no right to tolerate what would facilitate or sanction fraud or unjustifiable negligence.

But, independent of the strong inferences resulting from these circumstances, the documentary title now set up is inadmissible as legal evidence. No original paper is exhibited; of the concession we have merely a copy certified by Aguilar, the governor's secretary; of the certificate of survey we have merely a copy certified by the keeper of the public archives. No evidence is offered to show that either of these papers ever existed. Aguilar, the person who cop.ed the concession, is not produced; Clarke, the surveyor-general, who is examined, does not prove either the concession or his own certificate of the survey; Alvarez, a clerk in Aguilar's office at the time, never saw or heard of the original concession; Cavedo, a clerk in the record office, knows nothing of it; no evidence of its existence, and consequently of its loss or destruction, appears throughout the record.

To supply the want of this, the claimant attempts to establish a presumption of loss, by alleging that the documents in the record office were so carelessly kept as to make the loss of these papers very probable. But this allegation is quite inconsistent with the testimony before this court. The papers are shown, at all events, to have been carefully kept from 1815 to 1821; yet Alvarez, who kept them and constantly examined them, never saw such a concession; in 1821, the return of the survey must have led him to recur to it, if in existence: the surveyor-general, who was well acquainted with the office papers, never saw it: in a list of documents made soon after the change of flags, neither the concession nor certificate of survey is alluded to. These circumThe Spanish government would not, in its stances, taken in connection with the fact that most liberal spirit, have confirmed to the pres- the concession was never relied on by the claiment claimant the grant of land she now seeks ants till 1833, are inconsistent with the preto obtain. Her claim is founded on a conces- sumption of existence and loss. Nor is this sion of three hundred acres, alleged to have all; there is evidence which goes far to raise a been given by Governor Estrada in 1815, and contrary presumption: the loss of no grant to have been surveyed in 1821, but never, as is from these archives has been alleged, except admitted, possessed or cultivated to this day. such as now depend on copies certified by 337] Two inquiries, therefore, present them-*Aguilar; and evidence was offered to [*338 selves: first, whether such a concession was ever made in point of fact; and second, whether, if it was not, the acts of the claimant since have been such as now to authorize its confirmation.

1. That no such concession was ever granted by Governor Estrada may be inferred from the fact that none was ever produced or exhibited until the year 1833, eighteen years after it purports to have been made. The claim itself first appears in the report of the register and receiver, dated in January, 1827, twelve years after the alleged grant. Even then it is sustained only by an alleged certificate of survey, dated on the 23d March, 1821, purporting to have been made by the surveyorgeneral, Clarke, six years after the grant, in face of the Spanish law, which required the possession to be taken within six months after the date of the grant. There was no evidence of occupation or cultivation; none of the existence of the concession now relied on: its existence was not even alleged till the year 1833; the claim up to that time was admitted to rest on the certificate of survey by Clarke, which, if genuine, was made by him in direct violation of the Spanish land law.

prove that, in two cases at least, he had proposed to forge, or did actually forge, documents of a similar character; although this evidence, being objected to by the claimant, was no doubt properly rejected, yet it forms strong circumstance, taken in connection with the rest, to authorize a presumption that there never was any original concession.

Admitting, however, the facts on which the claimant presumes this loss, yet they can have no weight, as legal evidence, without previous proof that the document in question did actually exist. Satisfactory testimony that the original existed, is absolutely necessary before the certified copy can be admitted. In the case of Goodier v. Lake, 1 Atkyns, 446, Lord Hardwicke required not merely that the existence, but the genuineness of a note, alleged to be lost, should be shown before a copy was admitted; and in that of Irwin v. Simpson, 7 Bro. Parl. Cases, 317, an office copy of a bill was rejected, though an officer of the court was ready to prove that the original could not be found, after a search among the records. In the case of Cauffman v. The Congregation of Cedar Springs, 6 Binney, 63, the Supreme Court of Pennsylvania held that, in order to prove the

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substance of a written agreement, evidence of its existence must be first given, and then that it was lost or destroyed. So in the case of Meyer v. Barker, 6 Binney, 237, the same court say that before secondary evidence of the contents of a written instrument can be given, "there must be proof that such instrument once existed, and is lost or destroyed." This rule has been repeatedly recognized by other judicial tribunals (Jackson v. Todd, 3 Johns. Rep. 304; Spencer v. Spencer, 1 Gallison, 624), and, in this court distinct proof that a lost deed had been in possession of a person to whom it properly belonged, was regarded as a necessary ground for the admission of secondary evidence of its contents. Minor v. Tillotson, 7 Peters, 101. The present claimant offers no direct testimony whatever of the existence of her concession. The only evidence in fact is that a copy of it is referred to in the certificate of survey; but even of that certificate of survey nothing but a copy is produced. Clearly, the case is not brought within the well established rule.

is evidence without proving the existence of the original. No authority has been cited on this point; no law, order, receipt, or judicial decision to that effect, has been exhibited. The claimant relies on the parol evidence of a few persons in Florida, to prove what, if it exists, must be a well settled rule in the judicial tribunals of Spain. This is not a matter of mere local usage, which is to be established like an ordinary fact. But taking the parol testimony in the record, it will be found that in every instance where the witnesses speak of a certified copy of a concession being of equal validity with the original, they explain themselves as referring to cases where the original is known or proved to exist. Alvarez, the principal witness of the claimant on this point, says that "he does not recollect a certified copy of a grant being received in evidence in a Spanish court of justice, where the original was not on file in the proper office; and from his knowledge of the practice of the government, he does not believe that such a copy would be received in evidence in a Spanish court, unless the party could prove that the original was in the office at the time the copy was made."

On these grounds, it is submitted that there is no evidence of this concession ever having been made, but a strong presumption against it. 2. If, however, the original concession is proved, still the claimant is not entitled to a confirmation of it, because she performed none of the conditions which were required to perfect her title by the Spanish law.

Grants of land in Florida, by the Spanish authorities, so far as they have come [*340 before this court, appear to have been of three classes.

It is contended, however, that the rule in question does not apply where the originals are placed in a public office, and the office is allowed by law to give to the parties certified copies. To this it is answered in the first place, that this exception does not in any case dispense with direct proof of the original having existed; but, in the second place, it is never applicable in a case where the genuineness of the original is contested. In the case of The United States V. Percheman, 7 Peters, 84, where the question arose in regard to the admission of these certificates, it was declared by the court, in admitting them, that the original must be produced, if either party should suggest the necessity of so doing. In the case of First. Absolute grants, in consideration of Minor v. Tillotson, 7 Peters, 101, it was held services already performed, which were made that wherever suspicion hung over the instru- by the governors, in special cases, either by ment, the copy was not to be admitted without virtue of a special power recognized by the laws 339*] rigid inquiry. *In the case of The of the Indies (2 White's New Recopilacion, 38, United States v. Jones, 8 Peters, 382, it was 40, 52) or by the authority given, in particular held that although a certified treasury tran- degrees, coming directly or indirectly from the script of documents filed in the public offices, is sovereign, as in the case of the grants conmade, by law, of equal validity with the orig-ferred upon Salus, Paulin, and Percheman, in inals, yet the defendant is at liberty to impeach the evidence thus certified, and, on allegation of fraud, require the production of the original. In the case of Owings v. Hull, 9 Peters, 626, where the copy of a bill of sale in Louisiana was admitted, it was done upon the express ground that the original was in the possession of the notary. In the case of Winn v. Patterson, 9 Peters, 675, it was held that there must be satisfactory proof of the genuineness and due execution of a power of attorney, before a copy from the public office of the recorder could be received. In the case of The United States v. Delespine, 12 Peters, 656, the extent to which these certificates of Florida concessions were to be admitted, as evidence, was discussed; and their admission was made to depend upon the fact that there was positive proof of the existence of the original concession, in the office of the secretary who gave the certificate. This case, therefore, is not excepted from the common law rule, making proof of the existence of the original necessary, by the fact that its deposit in a public office was required.

It is, however, contended, that by the usages recognized in the Spanish law, the certificate

reward for their services. 2 White's New Rec. 280. The very nature of these grants forbids a limitation on the quantity, or on the consideration that might move them. They are recognized by this court in the cases of The United States v. Percheman, 7 Peters, 97; and The United States v. Clarke, 8 Peters, 453.

Second. Grants in consideration of services to be performed, and deemed specially important for the improvement of the province. These do not seem to have grown out of any law or royal order, but were not infrequent for some years before the cession of Florida. They were established by usage, and recognized as lawful. 2 White's New Recopilacion, 386, 289, 290. The services appear to have been of three kinds: the erection of saw-mills, factories, or mechanical works; the introduction and rearing of large numbers of cattle, and the establishment in particular places of large bodies of settlers. The titles to these were, in some instances, absolute on their face, and conveyed a present grant from their date, though coupled with conditions for the subsequent performance of the specified serv ices; or they were mere concessions or incipi.

ent grants, securing a future absolute title, on the performance of the conditions. The first are recognized by this court in the cases of The United States v. Arredondo, 6 Peters, 745, 746; The United States v. Clarke, 8 Peters, 441, 467; The United States v. Sibbald, 10 Peters, 313; and others. The second, in the cases of The United States v. Mills, 12 Peters, 215; and The United States v. Kingsley, 12 Peters, 477, 486. Third. But the great class of cases was that of gratuitous grants, in moderate quantities, for purposes of actual occupation and cultivation. To this class is applicable the general system of Spanish land law which existed in Florida and Louisiana; and the regulations embraced under it are as clear and distinct as those of the land laws of the United States. It is true, the grants were gratuitous, but the performance of the conditions annexed by that law was a consideration as explicit as the payment required by our laws.

2 White's New Rec. 276; 1 Clarke's Land Laws, 996-998. In 1797, Governor Gayoso, in Louisiana, enlarged the allotment to two hundred acres for the head of the family, fifty acres for each child, and twenty for each negro; he required possession to be taken within one year, and gave an absolute title after three years' cultivation. 2 White's New Rec. 233. In 1799 Governor Morales declared, explicitly, that notwithstanding the concession, or first grant, by which the settler obtained possession, he was "not to be regarded as the owner of the land until his royal title was delivered complete." 2 White's New Rec. 239. In 1803 Governor White, in East Florida, reduced the allotment to fifty acres for the head of the family, twenty-five acres to each child and slave above the age of sixteen years, and fifteen acres to each that was younger; he declared that "every concession, in which no time was specified should be null, if possession and cultivation were not The regulations in regard to these grants are commenced within six months." He also refirst found in the compilation of the laws of the quired ten years' possession before an absolute Indies, promulgated by the Spanish sovereign or royal title was granted, and decreed that if in 1682. By those laws, grants were distribu- in any case the land was abandoned for two ted by the governors to settlers, on condition years, the title should be absolutely void. 2 that they should take actual possession of the White's New Rec. 259, 277, 278, 281. In 1811, lands granted in three months, and build upon Governor Estrada solicited permission to change and cultivate them; and after four years of these regulations, and to be allowed to sell the such occupation, they were entitled to hold the lands absolutely for money, in lieu of granting land in absolute property. 2 White's New Rec. them gratuitously on conditions of culti-[*342 48, 50, 51. The incipient grant, termed a con- vation and settlement; but all change in the 341*] cession, was deposited in the office of system was explicitly refused. 2 White's New the governor's secretary; but, on proof of the Rec. 266, 267. In 1813 the Cortes, under the necessary occupation and cultivation, the set- new Spanish constitution, passed an ordinance tler received an absolute grant, or, as it was authorizing such sales, but this was repealed called, a royal title, which was recorded in the the next year, and the previous laws and reguoffice of the escribano, or notary of the prov-lations were restored. Clarke's Land Laws, ince. 2 White's New Rec. 283. The quan- 1007, 1010; 8 Peters, 455. With this partial tity to be given to each settler is not prescribed exception (which does not appear to have been in the laws of the Indies, but the governors are acted on in practice), the regulations of Gov. directed to graduate it. These regulations are ernor White continued in full force till 1815, subsequently recognized by the King of Spain, when Governor Kindelan, on account of the in his royal orders of 1735, 1754, and 1768, 2 Indian disturbance, relaxed them so far as to White's New Rec. 62, 64, 71, and in the lat- grant absolute titles to settlers, who had acter it is declared that "where any shall not ap- tually built houses and improved their lands, ply themselves in a proper manner to improve though the ten years' settlement was not comthe lands allotted to them, the same shall be plete. 2 White's New Rec. 288. In 1818 Govtaken from them (which I do without mercy) ernor Coppinger, at the instance of Garrido, an and granted to others who shall fulfil the con- agent of the Duke of Alagon, directed a full inditions." In 1770, O'Reilly, the Governor of vestigation and review of the land system of Louisiana, promulgated his regulations, fixing Florida to be made; and the report of Saavedra, two hundred and forty arpents as the quantity which was sanctioned by the governor, fully of a concession for a family, and allowing an establishes the regulations which have been absolute title, in the name of the king, after cited as then in existence; whether they rethree years' cultivation and improvement, to be late to the absolute grants, the grants upon exascertained after strict inquiry. 2 White's press condition, or the gratuitous concessions New Rec. 229, 230. In 1790, under the adminis- for purposes of settlement and cultivation. 2 tration of Governor Quesada, in East Florida, White's New Rec. 282, 288. and pursuant to a royal order, dated the 29th The claimant's title in this case rests on a November, 1789, we have the quantity allotted concession of Governor Estrada of three hunto the settlers in that province specifically des- dred acres; not asked or granted for any servignated; one hundred acres are assigned to each ices, but because "she has five children and head of a family, and fifty to each other person five slaves, with herself." This entitled her to composing it, whether white or black; provi- three hundred acres. At that time the sion is also made that foreign emigrants shall regulations of Governor White were in full first take an oath of allegiance to Spain; the force. She never occupied the land or culti surveyor-general is required to inform the set- vated it, at any time from the date of the contlers that they will obtain their concessions or cession to the present day. It cannot be doubtincipient titles from the governor's secretary; ed but that under the Spanish law, "her conces and also, to give them express notice that the sion is of no value or effect, the prescribed conconditions prescribed by law must be com- ditions not having been complied with, nor can pleted before they can receive an absolute title. I she by means of it claim any right to the land

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Nor can any decision of this court be shown in evidence of the memorial of Mrs. Wiggins, The first question arises upon the admission which goes to establish such a claim; no case

exactly similar has come before it, but so far and the decree thereon by the governor, Esas the principles heretofore laid down are ap-trada, on the certificate of the secretary, Aguiplicable to it, it submitted that they sustain lar. They are as follows:

the ground now taken, on behalf of the United
States. If so, the decision of the court below
was erroneous, and the claim of the appellee "His Excellency the Governor:
should be rejected; even if it be admitted that

"The tract which the interested party solicits is granted to her without prejudice to a third party; and for the security thereof, let a certified copy of this instance and decree be is-ately after making the decree, and delivered sued to her from the secretary's office.