He ritory-have been so often recognized by our is attached to a fort, for military purposes, he courts that they are no longer open to discus- | says: "Within this it is prohibited to build sion; and they have been applied as well to the houses, or rebuild those already in existence, American as to the Spanish intercourse with but leaving the owners in full possession of the original inhabitants of this continent. As their direct and useful domain of said lands, early as 1805, the executive department of our permitting only the construction of such edifices government, in its official correspondence, laid of wood as are necessary for their cultivation, down these principles (12 Wait Am. St. Pa. and, of course, easily destroyed in case of a 311); and in the case of Johnson v. M'Intosh, 8 siege. This," he remarked,"is done for the purWheat. 543, the whole question was elabo- pose of showing due respect to the sacred rights rately argued and thoroughly examined in this, of property, and to save the government from the highest branch of our judicial department. the immense expense that would otherwise be In delivering the opinion of the court, the Chief necessary for the indemnification of the proJustice went at large into the subject. He prietors whose lands were thus taken." clearly showed that discovery was the original then concludes by saying: "From what he has foundation of titles to land on the American exposed, and from the evidence under his eye, continent, as between the different European it results that St. Marks has not occupied, and nations, by whom conquests and settlements ought not to occupy, more than the land within were made here; that the European govern- the line of the ditch." Now, of this opinion, bements asserted the exclusive right of granting yond the part which gives the *distance [*75 the soil to individuals, subject only to the In- of the line of reservation according to military dian right of occupancy, which those govern- usage, it may be remarked that it is entirely ments were exclusively to extinguish; that the gratuitous-no opinion on any other point was same principle was recognized in the wars, ne- asked. But is it surprising that it should have gotiations, and treaties, between the different been thus volunteered by an ex-parte and anonEuropean powers; and that, since the Revolu-ymous witness, when it was evidently introtion, it has been adopted by the American duced to his notice as an important part of the States, the exclusive right of the British gov-claimant's case. The evidence on which he ernment over lands occupied by the Indians founded it was, as he remarks, under his eye; having passed to the governments of the States that evidence could only be such as related to or of the Union, as the case may be. The Su the claimant's title; it could not come officially preme Court of New York, in the case of Jack-before the "director of engineers," it could only son v. Goodel, 20 Johnson, 693, examined, after be brought by them specially to his notice. an elaborate discussion, the same general question, and, without any knowledge of the case pending in this court, came to the same result. So far, then, as the general question is concerned, in regard to the right of the government of a nation by whom the conquest or discovery is made to 74*] take possession of Indian lands, we need look no further to ascertain the principles which have governed, not only Spain, but other European nations, as well as ourselves. Even in the particular case out of which the present appeal arose, this court (9 Peters, 745), having reference especially to the rights of the Spanish crown in Florida, has declared that, subject to a possessory right under which the Indians might enjoy their actual settlements, "the ultimate fee was in the crown and its grantees." If this view of the law, as applicable to the rights of sovereignty enjoyed by conquerors or discoverers, be correct, who can doubt that they might appropriate to their use the territory they desired for public works? To deny it would be in the face of every principle thus established; and it may well excite surprise, at this day, that the right, either of the British, the French, or the Spanish settlers of America, to hold land sufficient for a fortress, in the country they had acquired, should be questioned. If a doubt could exist, it will be removed by examining the attempt made by the appellants to sustain their doctrine. After a search the most laborious, they rest it upon the opinions of two or three military officers, and a few grants in Florida and Louisiana, supposed to be somewhat analogous. The first of these opinions is not that of a Spanish lawyer, or a person acquainted with the public land system. It is from "a director of engineers," whose name even is not given. After describing the distance of fifteen hundred varas to be that which | But admitting the "exposition," though not the "result" of the "director of engineers," yet it does not establish a position it is necessary to deny. It establishes only this. that a re sulting fee, or a right to the usufruct of the soil, in and around forts, existed when, on the establishment of a fortress, the existing title of the owners, for purposes of economy, was only partially condemned, or a partial use not inter fering with that for which it was taken, was allowed; or when, after the establishment of a fortress, qualified grants were made around it, which became strengthened by a prescription that, on the abandonment of the fortress, grew into an absolute right. Admit these principles, and in what respect do they sustain the ground that the government cannot take the absolute property; much more, it may be asked, how can they be construed to prevail against the absolute right to the soil and domain acquired by conquest, and always explicitly declared? In no case could this latent and resulting interest exist without the agreement of the crown; and in the case of a fortress built on Indian land, the idea of such an agreement is preposterous. These views are applicable to every case cited in the record, of grants made up to the walls of fortresses. The case of Labatut was one where, after the fortification was erected, lands were taken from a person to whom they had been granted, on some change in the works. The cases of confirmed claims are the same; no one can doubt but that the government might, if it saw fit, grant lands under conditions more or less rigid, in such situ ations. The present case has no principle in common with these. If it be said that the right of the king was limited to the fort, and did not extend to the appurtenances, the answer is that he would not *take and occupy less than was necessary [*70 for the purposes contemplated; his right was the same to one as the other; excluding the Indians from it, all would be set apart that the public service required. It is shown to be as necessary to the fort as the land within the walls; it is an appurtenance which, in a general grant, would pass with it. disclaimed any pretensions to it." It might be thought that a relinquishment of even a pretension to this land, so explicit, would have precluded the present claim, Far from this, however, the appellants now seek to disclaim their disclaimer. They seek to represent it as a sacrifice of part to secure the residue; as a compromise. But it was no compromise. How could they compromise with this court? It was an admission of a fact that could not be denied; and one which, if persisted in, would have injuriously affected their entire claim. Through 2. But had there been such a law or usage existing in any territory acquired by Spain from the Indians, it would not avail the claimants in this case, because the Indians, under whom they claim, recognized the absolute title of the Spanish government at least five-out the whole proceedings in that case there is and-twenty years before the purchase from not a "pretension" set up to the land now in which the claimants derive their title. This controversy; and the evidence which shows its has been already adverted to. It is apparent fallacy. if any were wanting, proceeds, unconin the evidence of Governor Folch, on whose tradicted and unexplained, from their own witconfirmation of their title the claimants de- nesses. pend. His evidence is adduced by themselves. 5. Supposing, however, all these views to be He says that in 1787 "all the lands necessary erroneous; and supposing this court does not for the establishment of the fort" were re-sustain the correctness of one of these posiserved in the presence of the Indians, "with tions; does this afford ground for setting aside great ceremony." Calderon, an officer there at this decree? It does not. If the judgment of the time, says that the quantity of land need- the court were wrong in assigning to the United to preserve the fort, and all within "the ed States this property as "public land," that circle of jurisdiction of a fortified place, was is an error of the Supreme Court; the court betaken." Evidence stronger than this, from the low could not inquire into it; it could not grant lips of the witnesses of the claimants could any part of the prayer of the petitioners; it not be adduced to establish the nature and ex- had the limited duty to perform of executing tent of the Spanish title. This is corroborated the decree of the court, not of examining quesby the terms of the second deed of the Indians, tions connected with the merits of that decree. which includes the land betwen the Wakulla It is an answer to every ground of ob- [*78 and St. Marks, where they speak of the grant jection to say that it is one with which the as conveying "all the right" they had "re- court below had nothing to do. Ex-parte Sibtained in the land to that time." bald, 12 Peters, 492. The decision of the Su3. The governments of Spain and of the preme Court in 1835 was final on every point United States have had uniform and uninter- now sought to be raised, in regard to the title rupted possession for at least fifty years, prob- to the tort of St. Marks and its appurtenances. ably for seventy. This is in direct proof, in the The sole question, then, left open, was the exevidence of Caro, Calderon and Doyle, agents tent of those appurtenances. By what authorof the Spanish government and of the claim-ity could the court below have decided, as the ants, as to the period from 1787 to 1821. It claimants require, that there was no land apwas taken possession of in 1821 by General purtenant to the fort, when the Supreme Court Jackson, for the United States, in pursuance of had expressly said that the "territory adjacent the second article of the treaty with Spain, and appurtenant to the fortress is reserved for which expressly and separately cedes "all pub- the use of the United States?" By what aulic edifices, fortifications, barracks, and other thority could the court below have declared buildings which are not private property." The that the fort and its appurtenances had been possession thus taken extended, at the time, to abandoned by the United States, and had rethe territory around the fort, as well as within verted to the claimants; when the Supreme the walls. The forest was cleared away from Court, after having before it the same evidence the earliest times; no building, however trifling, of abandonment which the court below had, de77*] was erected there till 1827; General *Jack-clared that, so far from reverting to the claimson took possession as far as the point blank ants, it was still a part of "the public land" range of a thirty-two pounder. Under the well of the United States? The object of the Surecognized Spanish law, this possession would preme Court, in remitting the proceedings to give a prescriptive title. That title, by the the court below, was merely to carry into efSpanish law, was absolutely vested and accrued fect its decree, and to inquire into a single fact long before the Indian deed to Forbes. Insti- necessary to the proper execution of that detutes of Azo, 4, 2, 21; 1 White's New Rec. 347. cree. It was not to review what the Supreme 4. But supposing that the title of the United Court had done; to examine rights already exStates thus derived were not perfectly clear, it amined by this tribunal; to ascertain facts is made so by the express and explicit disclaim- already set forth in the record they had before er of the appellants to this fortress and its ap- them; to decide upon conflicting and intricate purtenances. This disclaimer was distinctly questions of title. Had the court below done made, in argument, in this court, by their coun- any of these things, as the appellants demandsel. It was so understood by the court, and so ed it should do, then, indeed, it would have stands recorded in their opinion. In that opin- erred. The duty of a court below, to whom ion (9 Peters, 733) it is said: "As to the land a decree of this court is sent, is limited solecovered by the fort, and the appurtenances to ly to the duty of executing that decree. some distance around it, it becomes unnecessary to inquire into the effect of the deed, as the counsel of the petitioners have in open court It is submitted, therefore, that unless it has been shown (as it certainly has not) that a distance of fifteen hundred varas is incorrectly stated to be the extent of the appurtenances of a Spanish fort; then the decree of the court below, directing the surveyor-general to lay off the land to that extent, was correct, and there is no ground for this appeal. Mr. Webster, for the appellants. The writers on public law declare that the range of a cannon-shot from a fort shall be the territory appurtenant to a fort, so as to prevent the erection of buildings, or any obstacles 79*] to the *uses of the fort. The court below were therefore wrong when they gave the right to the soil within the range of a cannon-shot, unless the mandate of this court gave to the United States the right to the soil, instead of the ordinary uses of it, connected with the fortification; the eminent domain of the United States was in the land on which the fort was placed; this was essential to the property in the fort, but no more than this; and the court did not intend to go any farther than to secure to the United States the full use of the fort of St. Marks. Why should the court give a right to the soil of the surrounding land, when the servitude of it was all that is necessary; and it is all that in similar cases has been claimed and used by the Spanish government, and all that the government of the United States have required? It is contended that the whole object of the decree was to have ascertained what was necessary for the common and convenient use of the court. The court, in the first instance, intended to secure the fort to the United States; other than the right of soil in the fort, the court did not propose to determine. The construction now contended for by the AttorneyGeneral would give to the United States jurisdiction over all lands around a fort, within the range of a cannon-shot, near the forts of the United States. Thus, the cities of New York, of Philadelphia, and Baltimore, would be under the jurisdiction of the United States. This has not been the understanding or practice. Jurisdiction over the forts has only been exercised or asserted. The mandate to the Superior Court of Middle Florida directed that court, in the first place, if there had been any grant from the Indians, or any proceeding of the Spanish government, which definitely and accurately fixed the extent of the fort, and of the reservation of the adjacent ground, to ascertain and determine the same. No grant, and no such proceedings were found. It was authorized, secondly, to ascertain the extent of the use of the ground round the fort, by the Spanish authorities. This could have been ascertained: evidence to this was taken by the order of the court, and it is abundant on the record. That evidence fully sustains the claim of the appellants; and the court should have decided the boundaries of Fort St. Marks, and the extent of "adjacent lands, which were considered held by the Spanish government, or the commandant of the fort, as annexed 80*] to the fortress for military purposes," according to that evidence. When the Spanish government confirmed the grant to John Forbes & Company, no reservation was made of Fort St. Marks. This is conclusive on the United States, and should induce this court to decide this case in favor of the appellants. The evidence of the com mandant of the fort, while it was under the Spanish government, is, that the land belonged to John Forbes & Company. What are the laws of nations on this subject? Cited, Burlemaqui, part 3, sec. 25-29; Puffendorf, bk. 8, ch. 5, sec. 7. The true position of this case is this: When the confirmation was made of the Indian grant, no reservation of the fort was made, and the appellants stand on the original grant; and the grantees having acquired the whole of the land, they rest on their rights thus acquired. It is admitted that after the grant by the Indians, Spain had a right to establish on the lands, and did establish, the fort of St. Marks, on the same. Spain is, therefore, bound to show the extent of her invasion of the land of the grantees of the Indians; and now, the United States, having come in under Spain, is bound to the same. The reference to the Superior Court of Florida, by the Supreme Court, did not impose on that court the duty of ascertaining to whom the land circumjacent to the fort belonged. The command was to determine how much adjacent land was required for the use of the fort. As has been said, the use of the ground around the fortress was all that was required for the fortress; and this did not necessarily carry with it the right in the soil. Mr. Justice Wayne delivered the opinion of the court: This case arises upon the mandate of this court on the case of Colin Mitchel et al. v. The United States, reported in 9 Peters, 711. In that case, it will be seen that the lands claimed by the plaintiffs were in different tracts, and that this court, in confirming the title of the plaintiffs, excepted from one of them the fortress of St. Marks, and "the territory directly and immediately adjacent and appurtenant thereto," which were reserved for the United States. The court further decreed that the territory *thus described shall [*81 be that which was ceded by the Indian proprietors to the crown of Spain for the purpose of erecting the said fort: provided the boundaries of said cession can be ascertained. If the boundaries of the said cession cannot now be ascertained, then the adjacent lands, which were considered and held by the Spanish government, or the commandant of the post, as annexed to the fortress for military purposes, shall be still considered as annexed and reserved with it, for the use of the United States. If no evidence can be obtained to designate the extent of the adjacent lands, which were considered as annexed to St. Marks, as aforesaid, then so much land shall be comprehended in this exception as, according to military usage, was attached generally to forts in Florida, or the adjacent colonies. If no such military usage can be proved, then it is ordered and decreed that a line shall be extended from the point of junction between the rivers St. Marks and Wakulla, to the middle of the river St. Marks, below the junction, thence extending up the middle of each river, three miles in a direct line, without computing the courses thereof; and that the territory comprehended within a direct line, to be run so as to connect the points of termination on each river, at the end of the said three miles up each river: and the two lines to be run as aforesaid, shall be, and the same are hereby declared to be the territory reserved, "as adjacent and appurtenant to the fortress of St. Marks;" and as such reserved for the use of the United States. To which the claim of the petitioner is rejected; and as to which this court decree that "the same is a part of the public lands of the United States." The court, then, reverses the decree of the court below, declaring it to be reversed and annulled in all matters therein contained, with the exception aforesaid; and proceeding to render such decree as the court below ought to have rendered, decreed the claim of the petitioners valid, to all the land claimed, except to such part as it had excepted. The clerk of this court is directed to certify its decree to the Surveyor-General of Florida, with directions to survey and lay off the lands described in the petition of the claimant, according to the lines, boundaries, and description thereof in the several deeds of cession, grant, and confirmation by the Indians or Governor of West Florida, 82*] filed as exhibits in the cause, or referred to in the record thereof; excepting, nevertheless, such part of the tract granted in 1811, lying east of the tract granted in 1804 and 1803, as is hereby declared to be the territory of the United States, pursuant to the exception hereinbefore mentioned, and to make return thereof, according to law, as to all the lands comprehended in the three first herein mentioned tracts; and as to the tract last mentioned, to survey, and in like manner to lay off the same, as soon as the extent of the land excepted and reserved for the use of the United States shall be ascertained in the manner directed. And the court directs that the land excepted and reserved shall be ascertained and determined by the Superior Court of the Middle District of Florida, in such manner and by such process as is prescribed by the acts of Congress relating to the claims of lands in Florida; the court rendering thereupon such judgment or decree as to law shall appertain. This mandate was filed by the plaintiffs in the Superior Court of Middle Florida. They afterwards filed a bill, claiming from the court a confirmation of their title to the land excepted, up to the walls of the fort of St. Marks; asserted this claim, upon the ground of the laws, usages, and military practice, in the various colonies of Spain; and then, in an amended bill, they ask the court to decree to them the fee in the land covered by the fort, as well as that adjoining and appurtenant, because they say the land on which the fort is erected was originally obtained from the Indians for the purpose of erecting a fortification, to be occupied and used as such, for that express purpose and no other. The attorney of the United States filed exceptions and an answer to the bills of the plaintiffs, alleging, among other things, that all the points in dispute between the United States and the plaintiffs, concerning the land they claimed, had been settled by the decision and mandate in the original case; and that the only object of this court, in referring the mandate to the court below, was, that it might ascertain the extent and boundaries of the tract of land which includes the fortress of St. Marks, and the territory adjacent; to which the claim of the petitioner had been rejected, and which had been reserved for the use of the United States. On these pleadings, and the evidence taken in it, the cause was tried. The court expresses the opinion that the boundaries of the [*83 territory ceded by the Indians to Spain, for the purpose of erecting the fortress of St. Marks, cannot now be ascertained; that no evidence can now be obtained to designate the extent of the adjacent lands which were considered as annexed to the fort by the crown of Spain, or the commandant of the post; but declares there is suficient evidence of the military usage of Spain to determine the extent of land adjacent to forts in Florida, which were usually attached to said forts. The court proceeds to say the extent of such reservations was determined by a radius of fifteen hundred Castilian varas from the salient angles of the covered way all round the works; or, there being no covered way, from the salient angles of the exterior line of the ditch. A decree is made by the court, conformably with this opinion, from which the plaintiffs appeal. It is urged, for the appellants, that as the sale from the Indians to Forbes & Company calls for the St. Marks River as the eastern boundary of the cession and grant, and as the title to the land was in the Indians, with only a pre-emptive right to the ultimate fee in the soil in the King of Spain, with the additional right of assenting to, or rejecting sales, by the Indians; that if no formal cession or transfer of the land upon which the fort is erected can be found from the Indians to Spain, before the sale to Forbes & Company, confirmed, as it was, by the authorities of Spain, without any exception of the site of the fort or land appurtenant to it, that the adjacent land up to the walls of the fort belongs to the claimants, and the site of the fort also, in the event of its abandonment as a fortification; that the right to the site would have been consummated in the claimants, in virtue of the sale by the Indians, if it had been disused as a fortress by Spain before Florida was ceded to the United States; and that the latter could only hold it for the same use, or as Spain held it; and now, having been discontinued by the United States as a fortress, that the claimants were entitled to it in fee. It was also said that the Spanish government recognized by its laws the ownership of lands to the walls of forts; and that military usage, in Florida, and the adjacent colonies, permitted it. The case before us does not require any discussion upon the nature and extent of the property held by the Florida Indians in these lands under Spain. That was satisfactorily done in the decision given by this court [*84 in the original case. 9 Peters. It was then shown that the Indians "held under Great Britain and Spain a right of property in these lands, which could not be impaired without a violation of the laws of both, and the sanctity of repeated treaties." 9 Peters, 756. "That Spain did not consider the Indian right to be that of mere occupancy and perpetual possession, but a right of property in the lands they held under the guaranty of treaties; which were so highly respected, that in the establishment of a military post by a royal order, the site thereof was either purchased from the Indians, or occupied with their permission, as that of St. Marks." 9 Peters, 752. These extracts present the claim of the appellants under their Indian title, and confirmation of it by Spain, in its strongest light. The last of them is particularly applicable to the point in controversy. It is then to be determined whether the court below, in its judgment, has rightly apprehended and executed the mandate of this court. The meaning of the mandate may be ascertained from the instrument itself; but the reasons which induced the court to make it, are to be found in the evidence contained in the original record. The court will now do what it did in the case of Sibbald, 12 Peters, 493. It said: "To ascertain the true intention of the decree and mandate of this court, the decree of the court below, and of this court, and the petioners' title, must be taken into consideration." In 10 Wheat. 431, this court says: "The proceedings in the original suit are always before the court, so far as to determine any new points between the parties." From the evidence then adduced by the claimants in the original case, it appeared that when the Floridas were retroceded to Spain, by England, September, 1793, that Panton, an English merchant, resided at St. Augustine, and traded with the Indians in East Florida. Rec. 114. In 1784, Governor Mero, finding it necessary to cultivate trade with the Indians, gave permission to one Mather to bring two vessels from London, direct to Pensacola and Mobile, laden with goods of British manufacture, to supply the Indians. In July, 1784, Panton applied to Governor Zespedes for leave to remain 85*] in the province, with permisison to *import from Great Britain such articles as the Indian trade required, and to export peltries received in payment. Rec. 157. A royal order was passed on the 8th May, 1786 (Rec. 160), allowing Panton and his partners to remain in Florida, on their taking the oath of allegiance, and permitting them to trade with the Indians. They were allowed to send a ship, annually, to Pensacola, with British goods, and and to take back peltries. Rec. 118. In 1787 or 1788 (Rec. 162, 304), they were allowed to erect a storehouse on the River St. Marks, to collect their peltries; and the vessel from Pensacola was permitted to go there to load them. In 1789 Panton was intrusted with the exclusive trade (Rec. 118, 250), and in 1791 received a special royal license. The year after, an attack was made by the Indians, under Bowles, on Panton's store, on the River St. Marks, and much property taken away. The same kind of outrage was repeated in 1800, with heavy loss to Panton and his associates. The Indians also owed them a large sum for goods. Forbes succeeded Panton in the trade which the latter began with the Indians, and was the assignee of his claims upon the Indians. In January, 1801 (Rec. 56), he informs the Marquis Casa Calvo that he had been negotiating with the Indians to cede lands in payment of the debt, and in satisfaction for the outrages committed by them on the store at St. Marks. The governor countenanced the negotiation. In 1804, Inverarity, an agent of Forbes, informed Governor Folch that the Indians had agreed to sell the land, and asks his consent to complete the purchase. The consent was given. On the 25th May, a deed was made, and in August, in a full Indian council held at St. Marks, the governor being present, the sale was ratified. This was Forbes' first purchase. It embraced the land between the Appalachicola and Wakulla, extending several miles up the rivers. The boundaries of this first purchase were run and fixed by the Indians in 1806. All the surveys being com. pleted within that year, Governor Folch confirmed the grant, and gave the grantees possession. Rec. 618, 622, 74. In January, 1811, a new negotiation was made with the Indians, and they agreed to sell additional strips of land on the western, northern, and eastern sides of the first purchase; but the cession was of "all the right the Indians had retained in the land until that time." The eastern addition embraced the land from the Wakulla to [*86 the St. Marks, and down the latter to the sea; thus including the point between the two rivers. This second cession was also confirmed by Governor Folch in June, 1811. Thus matters stood, the cession being known as Forbes' land, and the fort of St. Marks continuing to be garrisoned by Spain until it was surrendered to the United States, under the treaty. The history of the grants to the claimants having been traced, it is here necessary to give that of the fortress of St. Marks, as it is to be collected from the evidence in the original case. In the record, 123, a dispatch from the Marquis of Casa Calvo shows that during the possession of Florida by the English, the fort of St. Marks had been a military post, though it had been abandoned and suffered to go to decay. Shortly after its retrocession to Spain, the latter extended the jurisdiction of West Florida so as to include the site of the fort. Rec. 189. In May, 1785, Count Galvas issued an order to repair the old fort at St. Marks, and a detachment of troops was ordered to it from Pensacola. Rec. 306. This detachment was cut off, or driven away by the Indians. Rec. 582. But in the spring of 1787 (Rec. 198, 306), a royal order was issued, directing the permanent establishment of the fort. "It is notorious and public" (Rec. 233), says Governor Folch, the principal witness of the claimants, and the person who gave them possession of their whole purchase, "that at the establishment of the fort of St. Marks, at Appalachia in the year 1787, all the solemnity and requisites were observed to obtain from the Indians, in sale, the lands necessary to that object." Benigno de Calderon, who was then an officer of the Spanish government, twice refers to the fact, that not merely a military post itself, "but the quantity of land needed to preserve it;" and what he calls "the circle of jurisdiction of a fortified place," was severed from the Indian land, and vested in the government of Spain. Rec. 570, 582. Immediately after the sale of which Governor Folch speaks, the fort was constructed by Spain at a heavy expense. So were the public stores. The evidence of the claimants shows at least two hundred thousand dollars were expended upon these works. Calderon says there was a regular Spanish garrison there from 1787 |