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.

first degree 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 v. 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," etc. "Had Spain considered herself as ceding territory, she would not have neglected a stipulation which every sentiment of justice and national honor 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 United States, and for permission to the settlers to bring their property with them. We think this an unequivocal acknowl-mon to both cases, which was noticed by the edgment that the occupation of that territory 400*] by Spain was wrongful; and *we think the opinion thus clearly indicated was supported by the state of facts. It follows that Spanish grants, made after the Treaty of Peace, can have no intrinsic validity; and the holders must depend for their titles on the laws of the United States." Henderson v. Poindexter, 12 Wheat. 535, 536; vide 11 Peters, 209, 210.

The statement of this case by the court, in a preceding part of their opinion, gives a most lucid illustration of the principles above referred to. After alluding to the treaties of peace between Great Britain and the United States, France and 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 thirty-first degree of north latitude, while Spain maintained perseveringly her pretensions farther north. This was the subject of long and fruitless discussion between the two governments, which was terminated by the treaty, etc., of 27th Otober, 1795, etc. 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," etc. (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, 644.

This state of facts in Harcourt v. Gaillard and Henderson V. 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

*There was another feature, com- [*401

court, growing out of the compact with Georgia, and the subsequent 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 Chatahoochee, upon the following express conditions, and subject thereto, that is to say," etc. Second. "That all persons who, on the 27th October, 1795 (the date of the treaty with Spain), were actual settlers within the territory thus ceded, '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," etc., 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," etc. 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 for ever." 1 Laws U. S. 488.

The act of Congress under 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 Chatahoochee, north of thirty-one degrees north latitude, and south of the cession made by South Carolina," etc. 1 Story, 494. A sub

sequent act gave them power, “finally to settle, Wheaton, as a treaty of cession, settlement, by compromise," etc., "any claims mentioned and peace, or as a relinquishment by Spain and in the former act, and on behalf of the United purchased by the United States, or as a comStates, to receive a cession of any lands there- pact, deed, or articles of agreement; let it rein mentioned, or of the jurisdiction thereof, on ceive the same construction and effect as was such terms as to them shall seem reasonable." given to the agreement, or as the court called Ibid. 779. it, the treaty with Georgia, and then it can be ascertained what would have been the result had the grants in those cases been protected by any treaty stipulation. Let, also, the acts of Congress which related to claims under the treaty with Georgia, be compared with those which related to the country west of the Perdido especially, passed before 1821; to [*403 gether with those passed since the treaty was ratified for the adjustment of titles to land, and the same construction be applied to all, as the court gave to the former; a satisfactory answer can be given to those questions.

of those then under consideration, and the grant |ant to make the concession. No question of in the present case is one which must have been that sort appears to have been made in the then held valid on every ground assumed by court beelow. Assuming, then, the [*405 the court in favor of the grants then before authority of the Spanish intendant to make the 404*] them, had they come within the rules concession and warrant of survey, the quesand principles on which the court made the dis- tion made and decided in the District Court tinctive line between the different kinds of fairly arises: was it a sufficient title to recover treaties. upon in an action of ejectment? If the concesBut when we apply them to the grant in the sion had been made in a country where at the present case, it is a matter of much surprise time the principles and practices known to the that there could exist a doubt of its validity. common law prevailed, it would not bear a conIndependently of the treaty, it was protected test. It would be regarded, at most, as an inby the law of conquest, military occupation, cipient, inchoate right, but not a perfect, legal cession, or relinquishment; independently, too, estate. It would not be such title as would of any of these considerations, the property of maintain an action of ejectment. Was it a perthe plaintiff in the land granted was protected fect, legal estate; was it a title according to by the acts of the United States, under which the Spanish law which prevailed at Mobile at their military occupation or acquisition begun the time it was made? We apprehend not." and was continued. And, independently of all "It shows upon its face that other acts of other considerations, it was protected by the sovereignty remained to be done to perfect the stipulations of a treaty of cession, amity, set- title, and which the sovereign power might tlement, and limits, every clause whereof was withhold. A survey was to be made; and acaccepted, ratified, and confirmed by the treaty-cording to the laws and usages of Spain, a formaking power of the United States, and pro- mal grant was to be made in such cases, to claimed as binding on them, by its constitu- complete the title. tional effect.

the

"It may be admitted that the United States At the same term in which Harcourt v. Gail- were bound in good faith by the terms of the lard, and Henderson v. Poindexter were decided, treaty of cession by which they acquired the the case of Delacroix v. Chamberlain came up; Floridas, to confirm such concessions as had the controversy arose on a concession of land been made by warrants of survey; yet it would in the disputed territory; and as the opinion of not follow that the legal title would be perthe court, taken in connection with the two fected until confirmation. The government of preceding cases, and the case of Canter, 1 the United States has throughout acted upon a Peters, 542, decided at the next term, is of de- different principle, in relation to these inchoate cisive bearing on this case, it is given at large. rights, in all their acquisitions of territory, "The concession referred to in the bill of whether from Spain or France. Whilst the exceptions, is, upon its face, not a grant, government has admitted its obligation to connor a survey, but it is, as is expressed in firm such inchoate rights or concessions as had the bill of exceptions, only a warrant or order been fairly made, it has maintained that the of survey, authorizing the deputy-surveyor to legal title has remained in the United States, make a survey, and to report to the intendant until by some act of confirmation it was passed the survey when made, in order to found a or relinquished to the claimants. It has maingrant upon it. The order of survey bears date tained its right to prescribe the forms and the day of 1806. At that date the manner of proceeding in order to obtain a conSpanish authorities were in the actual posses-firmation, and its right to establish tribunals to sion of Mobile, where the land lies; and they investigate and pronounce upon their validity." claimed it as part of the Floridas, then belong-Ibid. "This is demonstrated by the laws which ing to the Spanish crown. The United States Congress have repeatedly passed, establishing claimed it as part of Louisiana. But it is not boards of commissioners to investigate these necessary to investigate these conflicting claims. claims, and to reject or confirm them, or reThe United States have since obtained the Flor-port them to Congress in cases of doubt; and idas by purchase and cession from Spain, without having previously settled the controverted boundary between the Floridas as claimed by Spain, and Louisiana as claimed by the United States. A question of disputed boundary between two sovereign, independent nations, is, indeed, much more properly a subject of diplomatic discussion and of treaty than of judicial investigation. If the United States and Spain had settled their dispute by treaty, before the United States extinguished the claim of Spain to the Floridas, the boundary thus fixed would have concluded all parties. But as that was But had this been a legal title, complete in not done, the United States have never, as far form, granting the legal estate, and duly reas we can discover, distinguished between the corded, there could have remained no doubt concessions of land made by the Spanish au- that the plaintiff would have recovered, as his thorities within the disputed territory, while case came within every principle of the precedSpain was in the actual possession of it, from ing cases of Harcourt v. Gaillard, Henderson concessions of a similar character made by v. Poindexter, of which the leading one is this: Spain within the acknowledged limits. We that "all the acts of Congress on the subject of will not, therefore, raise any question upon the grants within the disputed territory, under the ground of any want of authority in the intend-compact with Georgia, presupposed the validity

by the acts of Congress requiring all such claims to be recorded within prescribed periods. It does not appear that this order of survey has ever been recorded, or passed upon by the board of commissioners, or register of the land office, established by Congress in the district in which the land lies. It can therefore derive no aid from the laws of the United States." Wheat. 600, 602.

12

In conclusion, the court affirmed the judgment, because an ejectment could not be sustained on the order of survey. Ibid. 603.

406* of "those which were legally and fully, conquest, the rights of private property are executed before the 25th October, 1795." 12 protected by the law of nations, according to Wheat. 528, 529, 536. The articles with Geor- the law of the territory, though no stipulation gia were in themselves a confirmation of titles is contained in the act of cession or relinquishwithin its provisions (539); protected by thein ment; and even in case of conquest, no other (540), and confirmed by them. And by the acts change is effected except as to government; of 1819 and 1822, perfect grants were express- and that when a stipulation for property is ly recognized as complete titles. required it is never refused, and when made, is sacredly observed. But when, by a treaty or compact, one nation or State admits the original right of the other to the disputed territory, without any stipulation in favor of the inhabitants, as to lands held by grant under the party which admits the right of the other, the treaty binds their rights, and the grants are not valid against the party whose original right is acknowledged. S. P. 11 Peters, 209, 210.

If these opinions of this court require ad ditional support to entitle them to respect, it will be found in Keene v. M'Donough; in which, by a decree of a Spanish court, rendered in 1804, at Baton Rouge, which is within the disputed territory, lands were sold and conveyed to the defendant's grantor, who held them under such decree and sale, and this is the language of this court in affirming its validity:

"The adjudication having been made by a Spanish tribunal, after the cession of the country to the United States, does not make it void; for we know historically that the actual possession of the territory was not surrendered until some time after these proceedings took place. It was the judgment, therefore, of a competent Spanish tribunal, having jurisdiction of the case, and rendered whilst the country, although ceded, was de facto in the possession of Spain, and subject to Spanish laws. Such judgments, so far as they affect the private rights of the parties thereto, must be deemed valid.

"This view of the case supersedes the necessity of considering the question of prescription." 8 Peters, 310.

Delacroix v. Chamberlain established the application of the Treaty of 1819 to the disputed territory, as a cession thereof by Spain, a purchase by the United States, and a settlement of former controversies concerning it (S. P. 12 Peters, 515); that the grants and concessions made by Spain while in possession, are on the same footing as in other parts of Florida; that the United States are bound in good faith to confirm her imperfect titles, and has admitted its obligation to do so, when the inchoate title has been fairly made. And when, in the case of Canter, this court declared that this treaty is the "law of the land" (1 Peters, 542), the omission of any reference to either of these cases a the opinion in Foster and Elam, shows most clearly that they were not considered by the court; and when the principles they established are properly considered, it cannot be doubted that had they been noticed by the majority, the judgment would have been different, for they covered every point in the case.

The Percheman's case, the court unanimously assert that if the Spanish part of the treaty had been within their view in Foster and Elam, they would have given it the same construction as they afterwards did; and it is not disrespectful in me to say that a similar result must have followed if the four last decisions of the court had been under their consideration.

The Spanish tribunal, it must be remembered, was the governor of the province, acting in his judicial capacity, in which he had power by the Spanish law to order a sale of land; which passed the title of the proprietor to the purchaser, on the execution of a deed, which was deemed the strongest and safest convey. ance known to the jurisprudence of Spain. In his political capacity, the same governor had power to dispose of the royal domain, and to make valid grants thereof, which conferred a perfect right of property in the land so granted. It would, therefore, be a novel principle in American jurisprudence, if while this governor, by judicial power, could transfer the prop- The silence in the opinion in Foster and Elam erty of A to B, he yet could not by political can by no just rule be taken to overrule either power, so far dispose of the public domain as of those cases; it lays down no antagonistic to bind the king, in whose name and by whose principle, except that the treaty remained a authority he acted as his direct representative; mere contract till Congress executed it by a or even affect his conscience as a trustee, in law; it was as silent on the law of nations as virtue of the grant, to the grantee. And if the on former adjudications; yet it will not be preking was so bound by a perfect grant, or be-tended that it was meant to controvert or abcame a trustee by a mere concession or order of survey, the United States succeeded to the obligation of the king to perfect the title, according to the laws, usages, and customs of Spain; and the grant or concession stood "ratified and confirmed" under the treaty, to the same extent, at least, as a judgment did before it. 12 Peters, 484.

The two first of these cases established these principles-that grants of land in a disputed territory, made by a government in possession thereof, during peace with a nation which is entitled to its dominion and propriety, are valid by the law of nations, without any treaty stip ulation; if made during war, they are not valid 407] unless protected by the treaty: that when territory is acquired by a cession, or relinquishment of one nation to another, or by

rogate those principles which are consecrated by "the usage of the civilized world." Wheat. 535.

12

That opinion admits of no such interpretation; when carefully examined (from 2 Peters, 299-317) it will be found to turn entirely on the since overruled construction of the treaty, and the nonfiling of the plaintiff's claim; nor, with that exception, is there a single principle laid down which militates with former decisions in any respect. And if the since [*408 exploded construction of the treaty is stricken from the opinion, and the principles of Arredondo, Percheman, Clarke, and all subsequent cases are inserted in its place, it will be found that there is not a stronger case in favor of the validity of grants in the disputed territory. The case arose on one of that description; the

court tested its validity by the treaty, which | overruled, I rely as supporting the plaintiff's they construed in reference to its language title; and by now infusing into it the unialone, as applicable to the whole ceded terri-versally received and admitted construction of tory, without adverting to any distinction in the treaty, considered it as decisive of this its construction, between grants within or case, without the aid of the acts of 1824 or without the disputed territory; on the con- 1836. trary, it was expressly held that the treaty would apply to a grant west of the Perdido, if it was construed as it has been ever since; and that the eighth article would have confirmed even the rejected grants, had they not been excepted by the rat fication. 2 Peters, 312, 313. When the true construction of the treaty is infused into that opinion, it supports every position on which the plaintiff's title rests; and the doubts which have arisen upon it can be attributed to no other cause than by misapprehending its principle, or by viewing the overruled construction as restored, without a refer-puted territory) in their property: 1. That ence to the ground on which the decision was placed, or appreciating the principles which would have followed, by considering the treaty as self-executed by its own intrinsic force. In which case the court declared that the grant would have been valid, within the disputed territory.

It has been supposed that the opinion in that case went on the ground that questions of title to lands, arising on Spanish grants in the disputed territory, between 1803 and 1810, were of a political, and not judicial character; depending on the construction of the Louisiana Treaty, as to its eastern boundary. But no such principle is to be found in the opinion; the question of boundary is taken to be settled, and not open to judicial inquiry; yet all other questions affecting the validity of the grant, are throughout considered as open and of judicial cognizance: had boundary and title been considered to be identical, the court would have been saved from the labor which they took to show that the title was invalid on other grounds; for when the Perdido was taken as the true boundary, all grants west of it were consequently void, if title depended on bound

ary.

This is another source of misapprehension of this opinion, which has of late given to it an importance, after it had remained unnoticed in any opinion of the court after Percheman's case, till 1838.

After the opinion in that case was promulgated, the turning principle of Foster and Elain was universally understood to be overruled, and its authority ceased to be relied on; and it was not even quoted by the counsel of the United States in the argument of Percheman's case, though the aid of Arredondo was invoked. Vide, 7 Peters, 59, 62.

It is somewhat remarkable that there is no one opinion of this court, or any of its members, which even questions any one principle of the law of nations, as laid down in the cases of Harcourt v. Gaillard, Henderson v. Poindexter, Insurance Company v. Canter, The United States V. Soulard, Arredondo, Percheman, Delassus, Mitchell, Strother v. Lucas, and Rhode Island v. Massachusetts: in the latter of which these principles are reiterated. "There are two principles of the law of nations which would protect them (the inhabitants of a disgrants by a government de facto, of parts of a disputed territory in its possession, are valid against the State which had the right; 2. That when a territory is acquired by treaty, cession, or even conquest, the rights of the inhabitants to property are respected and sacred." 12 Peters, 748, 749.

If the reference to Poole v. Fleeger, in 12 Peters, 521, is to be considered as questioning any principle of the law of nations, to which the above-named cases refer, it must have arisen from relying on two passages of the opinion in Poole v. Fleeger, detached from the context immediately preceding and succeeding them.

When the whole opinion in 11 Peters, 209, 211, is taken in connection with the terms of the compact between Kentucky and Tennessee, it will be found that the case turned on the precise principles of Harcourt v. Gaillard, and Henderson v. Poindexter, as is abundantly manifest from the turning and decisive point in the case.

The Circuit Court instructed the jury "that the State of Tennessee, by sanctioning the compact, admitted in the most solemn form, that the lands in dispute were not within her jurisdiction, nor within the jurisdiction of North Carolina at the time they were granted; and that, consequently, the titles were subject to the conditions of the compact," which was the ground of the exception and writ of error to this court. After referring to the law of nations and the Constitution, the learned judge who delivered the opinion of the court proceeded to assign their reasons.

"The compact, then, has full validity, and all the terms and conditions of it must be equally obligatory upon the citizens of both States."

*"Independently of this broad and [*410 general ground, there are other ingredients in the present case equally decisive of the merits.

It is not a little strange that it should now be taken to be a leading case on Spanish titles, when its vital principle is extinguished by an "Although in the compact, Walker's line is 409*] *unquestioned series of decisions to the agreed to be in future the boundary between contrary, and all the principles, which remain the two States, it is not so established as havunshaken are decidedly in favor of a conclu- ing been for the past the true and rightful sion directly the reverse of that to which the boundary; on the contrary, the compact adcourt arrived, on their then erroneous construc-mits the fact to be the other way. While the tion of the eighth article, and the ratification of the king. If, then, the case of Foster and Elam is yet to be considered as a leading or authoritative one, it can be only as to the boundary of Louisiana, which is a concessum; on every other principle of that case, which is not now admitted to be overruled, and to stand

compact cedes to Tennessee the jurisdiction up to Walker's line, it cedes to Kentucky all the unappropriated lands north of latitude thirtysix degrees, thirty minutes north. It thus admits what is in truth undeniable, that the true and legitimate boundary of North Carolina is in that parallel of latitude, eta. It goes