principle of the case of Foster and Elam v. Neilson, in 2 Peters, 299, 317, adverse to grants in the disputed territory, has been since overstand affirmed in all subsequent cases, give full validity to such grants; 5. That the case of Poole v. Fleeger, has no bearing on the Treaty of 1819; and, 6. That any decision of this 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. by ceding "vacant lands," etc., "which are not private property;" and the stipulation in the third article, to incorporate the inhabitants in the Union as soon as possible, etc., and admit-ruled; 4. That the principles of that case, which ted to the enjoyment to the right of citizens of the United States; and in the meantime, be protected and maintained in the free enjoyment of the property. 1 Laws of the United States, 136. The reason of this distinction is obvious. Though the Treaty of 1803 made no provision for a change of government, it was in the first instance to be temporary and territorial, under the sole power of Congress, in virtue of the third section, fourth article of the Constitution; and afterwards a State government, subject only to the same powers which Congress could exercise in the old States. 1 Peters, 542, 9 Peters, 234, 236. No change of government was contemplated, or could be made by the Treaty of 1819, except as to the territory east of the State of Alabama; as all westward to the Mississippi then formed a part of three States; and the incorporation thereof and the inhabitants into the Union was completely effected (in virtue of the Treaty of 1803) two years before the ratification of the Florida Treaty. Vide 2 Peters, 308, 309, 311, 312. Hence arose the difference between the corresponding articles of the two treaties; that of 1819, in the sixth article, stipulating only for the incorporation of the inhabitants, etc., and their admission to the rights, etc., of citizens of the United States; omitting any stipulation as to property, save by the eighth article, which was co-extensive with the whole ceded territory east of the Mississippi, and superseded the necessity of any further stipulation to protect property; and the Constitution placed the government of the territory east of the Perdido in Congress, under the general powers conferred by the third sec tion of the fourth article. From the course of the political departments 390*] of the government, *I now proceed to that of the judicial department, on this and kindred subjects. 1. As to the Treaty of 1803, its construction, and effect on private property in Louisiana. 2. The decisions of this court on claims to land east of the Perdido, under the Treaty of 1819. 3. Decisions on claims to land in disputed territory, under that and previous treaties. 4. The decisions on articles of capitulation, and treaties between the United States and foreign powers. 5. The decisions on compacts of boundary between State and State, and States with the United States. 6. How far questions of titles to land in a disputed territory are judicial. On this, as on the former branch of the subject, my object is to show, 1. A perfect coin cidence of opinion between all the departments of the government, on the subject of Spanish titles under the two treaties; 2. That if my opinion is at variance with that of this court in 12 Peters, 515, etc., it arises from my entire concurrence with their declaration in that case, that the Treaty of 1819 finally settled the long subsisting controversy between the United States and Spain, about the territory between the Perdido and the Mississippi; 3. That every 1. In Soulard v. 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 principal 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 v. The United States, "that the perfect inviolability of property is among these rights, all will assert and maintain." "The right of property, then, is protected and secured by this *treaty; and no [*391 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 private property; 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 v. 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 v. 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 The City of New Orleans v. The United States, the effect of the Louisiana treaty was most fully and ably considered by the court in an 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 speaks: "If the common in contest, under the Spanish crown formed a part of the public domain, or the crown lands, and the king had power to alien it as other lands, there can be no doubt that it passed under the treaty of 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. The first was The American Insurance Company v. 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. to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. "This treaty is the law o fthe land, and admits the inhabitants of Florida to the enjoy. ment of the privileges, right, 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 meantime. 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 belong. ing to the United States." "It has been already stated that all the laws which were in force in Florida while a prov ince of Spain, those excepted which were politi2. As this opinion can neither require or re-cal in their character, which concerned the ceive any weight by any remarks of mine, I relations between the people and their sov now proceed to notice the adjudications of this ereign, remained in force until altered by the court in cases arising under the Florida Treaty, government of the United States. Congress in relation to the territory east of the Perdido, recognizes this principle, by using the words including East Florida. 'laws of the territory now in force therein.' No laws could then be in force but those enacted by the Spanish government." Ibid, 545. 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 ef fect, were the rules of property and right under both; and if the treaty of 1819 [*393 was the law of the land in 1828, and under the sixth article, the effect of the stipulations was to admit the inhabitants to the enjoyment of the rights, etc., which were promised, by its own force, operating in presenti upon the subject; ingenuity will be pushed to its utmost stretch to give a different effect to the eighth article. As the words of the court admit of no exception or qualification, that article must operate in like manner to ratify and confirm all the grants to which it relates, in all parts of the ceded territories, whether within the States to which it had been annexed, or that which was east of the Perdido. "The Constitution confers absolutely on the 392*] government of the *Union the powers of making war and of making treaties; consequently that government possesses the power of acquiring territory, either by conquest or by 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 trans- The principles of this opinion also apply with fer of territory, it has never been held that the full force to the law of nations, as it bears relations of the inhabitants with each other on the relations between the United States and undergo any change. Their relations with their the people and proprietors of the disputed terriformer sovereign are dissolved, and new re-tory, consequent upon the Treaty of 1803, the lations are created between them and the gov-military occupation in virtue of the right of ernment which has acquired their territory. the United States, by that cession, from 1810 The same act which transfers their country to 1821; as a conquest by the right of war, or transfers the allegiance of those who remain as a new acquisition by the cession of Spain in it; and the law, which may be denominated in 1821, subject to the stipulation it contained. 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 provisions: "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 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 v. 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 The second point was decided in The United States v. 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. execute that part of the treaty; the opinion | the eighth article would apply, by the opinion of the court taking no notice of the law or of the court. 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, etc., 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 treaty would 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 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." 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 in his 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 thirty-second degree north latitude, thence north to Red River, etc. By the second clause, the parties agree to cede and renounce all their rights, etc., 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 territory 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, devest 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 "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, but ap. [*395 propriated 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 proprietors of 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 their 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 honor of the king was concerned most deeply, in not doing an act which would deprive his subjects of what he had granted to them," etc., "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 ratification, the legal title, much less the theirs was necessary for their confirmation and 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, to their view; and that "this understanding of could assert no claim to lands thus expressly the article must enter into our construction of excepted;" and the court declared explicitly the acts of Congress on the subject." Ibid. 89. that the grants included in the eighth article, These cases finally settled the construction of and those referred to in the ratification by the the second, third, and eighth articles of the king, "were confirmed and annulled respective Treaty of 1819; they overruled the construcly, simultaneously with the ratification and tion given in Foster and Elam v. Neilson, and confirmation of the treaty, and that when the have remained unquestioned till this time (12 territory was ceded, the United States had no Peters, 519); and "on the fullest consideration right in any of the lands embraced in the con- (it has been) held, that the treaty operated as firmed grants. Ibid. 741, 742. 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," etc. 12 Peters, 747. The same principles were adopted in The United States v. 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 the 396*] article been supposed to pass the objects thus enumerated, but private property also." 7 Peters, 87. The grant of buildings could not have been limited by the words, "which are not private property," had private property been included in the cession of the territory. "This state of things ought to be kept in view, when we construe the eighth article of the treaty, and the acts of Congress relating to Spanish titles. This (the eighth) article is apparently introduced on the part of Spain, and must be intended to stipulate expressly for that security to private property which the laws and usages of nations would, without express stipulation, have conferred. No construction which would impair that security for them, that its positive words require, would seem to be admissible. Without it the titles of individuals would be as valid under the new government as under the old," etc. The court then declare that this article means that the grants "shall remain ratified and confirmed to the persons in possession of them, to the same extent, etc. (that the same grants would be valid if the territories had remained under the dominion of His Catholic Majesty), thus conforming exactly to the universally received doctrine of the law of nations. If, as we think must be admitted, the security of private property was intended by the parties; if this security would have been complete without the article, the United States could have no motive for insisting on the interposition of government, in order to give validity to titles, which, according to the usages of the civilized world were already valid." Ibid. 88, 89. The grants are then declared to be ratified and confirmed by the force of the treaty itself, as the proper if not unavoidable construction of its words; and the court also declares that this construction would have been given in Foster and Elam v. Neilson, if the Spanish part of of the treaty had been brought In The United States v. Kingsley, decided in 1838, the court took broader ground in favor 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 found in any other opinion. "Under the treaty it is true that grants of land made before the 24th January, 1818, by His Catholic *Majesty, or by his lawful [*397 authority, stand ratified and confirmed, to the same extent that the same grants would be valid if Florida had remained under the dominion of Spain," etc., etc. "It is admitted that in the construction of this article of the treaty (the eighth), the United States succeeds to all those equitable obligations, which we are to suppose would have influenced His Catholic Majesty to secure to his subjects their property, and which would have been applied by him in the construction of a conditional grant to make it absolute. And further, in the construction of this article of the treaty, it must be conceded that the United States must maintain the rights of property under it, by applying the laws and customs by which those rights were secured before Florida was ceded, or by which an inchoate right of property would, by laws and customs, have been adjudicated by Spanish authority to have become a perfect right, by applying in the first instance in such cases, as was said in Arredondo's case, the principles of justice, according to the rules of equity; and, in the second, all those laws and customs decisive of a right of property, while the party claiming the right was a subject of Spain." 12 Peters, 484, 485. This final result of the adjudications of this court settles all doubts as to the extent and effect of the cession and the construction of the treaty, which were expressed by the court in Foster and Elam v. Neilson, and is decisive of the two first points. Their opinion in the case of The United States v. 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 this power was well known. If the United States were not content | Peters, 734; New Orleans, 9 Peters, 234, and to receive the territory, charged with titles 10 Peters, 736; Strother, 12 Peters, 435, 441; thus created, they ought to have made, and Kingsley, 12 Peters, 484; and Rhode Island, they would have made, such exceptions as they 12 Peters, 747, been recognized in Foster and deemed necessary. They have made these ex- Elam, the decision of the court in that case, ceptions. They have stipulated that all grants on their declared principles, must have been in made since the 24th of January, 1818, shall be favor of the plaintiff, if he had filed and renull and void. It is understood that this stipu- corded his claim, according to the requisitions lation was intended to embrace three large of the acts of Congress as the court decided grants made by the king, which comprehended that case solely on their construction of the nearly all the crown lands in East Florida. treaty the since-established construction if then However this may be, it shows that the sub- adopted would have made the treaty a rule of ject was in the mind of the negotiator; and decision for the court, have confirmed the the apprehended mischief was guarded against, grant by its own force, and repealed the 14th so far as the parties could agree. The Ameri- section of the Act of 1804, and all repugnant can government was content with the se- laws; and made all grants before January, curity which this stipulation afforded, and can- 1818, as obligatory on the United States as not now demand further and additional they were on Spain, excepting only the three grounds. The acquisition of the Floridas was which were cancelled by the ratification of the an object of immense importance to the United king. 2 Peters, 311-315. 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 by His Catholic Majesty, or his lawful authorities, in the ceded territories (in the ratification by the King of Spain, "competent authorities"), are as valid as if the cession had not been made." 8 Peters, 464. 3. I now proceed to the cases which have arisen in this court under the treaty of 1919, in relation to grants of land within the disputed territory, made after 1803; and under the kindred treaty between Georgia and [*899 the United States, on grants made by Great Britain and Spain, while those governments occupied the territory in dispute between them (Georgia and the United States). Harcourt v. Gaillard arose on a grant made by the British Governor of West Florida, for land north of the thirty-first degree 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 favor 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 The same principle is recognized and declared in The United States v. Mitchell, 9 Peters, 735, and Strother v. Lucas, 12 Peters, 439, in both of which there is a summary review of all the previous decisions of this court on the subject; which are declared, in 9 Peters, 734, "to be definitively settled, so far as the power of this court can do it, and must be tak-boundaries, within which the power which sucen to be the rules of its judgment." I content myself with this general reference to these summaries of past decisions, with the exception of the settled meaning of the words "lawful authorities," in the eighth article, and competent authorities, in the ratification by the king; that is by those persons who exercised the grunting power by autnority of the crown. This is the generally received meaning of the words. The treaty recognizes the existence of those "lawful authorities," in the ceded territories. 8 Peters, 449. The king "might therefore stipulate for that full credence (evidence) to the instrument itself, which is usually allowed to instruments issued by the proper officer." In the sense in which the words "are uniformly used and understood, they mean persons authorized by the crown to grant lands" (8 Peters, 450, 464); the governor or intendant, as the case may be (9 Peters, 735), "or their deputies." 10 Peters, 331, S. P.; 12 Peters, 438, 439. Had these principles, thus settled, in the cases of Canter, 1 Peters, 542, in Soulard, 4 Peters, 512; Arrendondo, 6 Peters, 717, etc.; Percheman, 7 Peters, 87, etc., Clark, 8 Peters, 449, 463; Delassus, 9 Peters, 133; Mitchell, 9 ceeds in war is not obliged to recognize as valid any acts of ownership exercised by his adver sary." 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, etc., that in case any of the islands, etc., which were in the possession of one of the parties prior to the commencement of the present war between the two countries, should, etc., 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 be as valid as if such island, etc., had been adjudged to be within the dominions of the party having had such possession," etc. 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 thirty |