THE UNITED STATES, APPELLANTS

v.

DON FERNANDO DE LA MAZA ARREDONDO AND OTHERS, APPELLEES

Mr Justice Baldwin delivered the opinion of the Court.

This is an appeal from the decree of the judge of the superior court for the eastern district of the territory of Florida.

After the acquisition of Florida by the United States, in virtue of the treaty with Spain, of the 22d of February 1819, various acts of congress were passed for the adjustment of private claims to land within the ceded territory. The tribunals appointed to decide on them, were ndt authorised to settle any' which exceeded a league square; on those exceeding that quantity, they were directed to report especially their opinion for the future action of congress. The lands embraced in the larger claims, were defined by surveys and plats returned; they vveré reserved from sale, and remained unsettled until, some resolution should be adopted for a final adjudication on their validity, which was done by the passage of the law of the 23d May 1828, pamph.

62. By the sixth section it was provided, “that all claims to land within the territory of Florida, embraced by the treaty, which shall not be finally decided and settled under, the previous provisions of the same law, containing a greater quantity of land than the commissioners were authorised to decide, and above the amount confirmed by the act, and which have -not been reported as antedated or forged, shall be received and adjudicated by the judge of the superior court of the district within which the land lies, upon the petition of the claimant, according to the forms, rules, regulations, conditions, restrictions and limitations prescribed to the district judge, and claimants in Missouri, by the act of the 26th May 1824.” By a proviso, all claims annulled by the treaty, and all claims not presented to the commissioners, &c. according to the acts-of congress, were excluded, (a) The seventh section provided for an appeal by the claimants, and the ninth, by the United States to this court: the adjudication of the judge of the superior court having been rendered against the United States, the case conies before us by an appeal by them.

The law of 1824, which is thus referred to, and forms a part of that-of 1828, furnishes the rules by which this court must be guided in assuming and exercising jurisdiction to hear and determine the claim in controversy. This law was passed to enable claimants to lands within the limits of Missouri and Arkansas, to institute proceedings to try the validity of their claims tó land prior to the consummation of the cession of the territory acquired by the United States by the Louisiana treaty; and enacted, that any person, or their legal representative, claiming lands by virtue of any French or Spanish grant, concession, warrant, or order of survey, legally made, granted or issued, before the dale of the 10th March 1804, by the proper authorities, to any persons resident in the province at the dale thereof, which was protected and secured by the treaty, and which might have been perfected into a complete title, under and In conformity to the laws, usages and customs of the government under which the same originated, had not the sovereignty been transferred to the United States, may present his petition to the district court, setting forth the nature of his claim, the date of the grant, and quantity and boundary, by whom issued, and whether the claim had been submitted to any tribunal, and reported on by them) and how; praying that the validity of their title and claim may be inquired into and be decided by the court. The court is authorised and required to hold and exerci,se.jurisdiction of every petition presented in conformity with the provisions aforesaid, and to hear and-determine the same on the petition,' in case no answer be filed after due notice; or. on the petition and the answer of any person interested in preventing any claim from being established, in conformity with the principles of justice, and according to the laws and ordinances of the government under which the claim originated. (3 Story’s Laws U. S. 1959, 1960, sec. 1.)

A reference to the petition presented by the claimants in this base, shows that it contains a full statement of all the matters required by the first section of the Missouri law, excepting the condition of residence, which is not required by the act of 1828. Record, 1 to 22. It presents a claim for land in Florida, embraced by the treaty, not finally settled; containing the requisite quantity of land, not reported.on as antedated or forged, not annulled by the treaty, presented to and1 acted on by the commissioners according to law. The superior' court of Florida then had jurisdiction of the petition to hear and determine the same, according to the principles of justice and the laws and ordinances of Spain; and -the case is now regularly before us on an appeal from their decree.

The power to hear and determine a cause is jurisdiction; it is coram judice,” whenever a case is presented which brings this power into action; if the petitioner states such a case in his petition that on a demurrer the court would render judgment in his favour, it is an undoubted case of jurisdiction, whether on an answer denying and putting in issue the allegations of the petition, the petitioner -makes out his case, is the exercise of jurisdiction conferred by the filing of a petition containing all the requisites and -in the manner prescribed by law.

The proceedings on the petition are to be conducted according to the rules of equity, except that the answer on behalf of the United States need not be verified on oath. — Sec. 2.

This court has often decided that by these rules are meant the well settled and established usages and principles of the court of chancery, as adópted and recognized in their decisions, which have been acted on here, under the provisions of the constitution and the acts of congress. In conformity with the principles of justice and the rules of equity, then, the court is directed to decide all questions arising in the cause, and by a final decree, to settle and determine the question of the validity of the title, according to the law of nations, the stipulations of any treaty and proceedings under the same, the several acts of congress in relation thereto, and the laws and ordinances of the government from which it is alleged to be derived, and all other questions which may properly arise-between the claimants and the United?States, which decree shall, in .all eases, refer to the treaty, law or ordinance under which it is confirmed or decreed against. As these are made the basis of our decision, and this is the first final adjudication on those laws, wé think it necessary to declare the sense in which we think they were intended by congress, as well as their plain legal import, agreeably to the rules of construction adopted by this court, or' those which form the principle of the common law. It is not necessary to define what was meant by referring to the Lw of nations.

The numerous cases which have been adjudged by this, and in the circuit courts, make it wholly unnecessary to refer to the sources from-.which it has been -extracted. By the stipulations of a treaty are to be understood its language and apparent intention manifested in the instrument, with a reference to the contracting parties, the subject matter, and persons oh whom it is to operate. The laws under which we now adjudication the rights embraced in the treaty, and its instructions, authorise and direct us to do it judicially, and give its judicial meaning and interpretation as a contract on the principles of justice and the rules of equity. When-the construction of this treaty was under the consideration of the court in the case of Foster and Elam v. Nelson, 2 Pet. 254, 99; it was under very different circumstances. The plaintiff claimed a title . the land in controversy under a Spanish grant prior to the treaty, which he alleged was confirmed by the eighth article; he stood simply on his right, without any act of congress authorising the suit, or conferring on the court any extraordinary powers. The first question which was decisive of the plaintiff’s pretensions was whether the lands in contest were within the boundaries of Louisiana, as ceded in 1803, or within Florida, as ceded in 1819. The boundary between the two territories had been for many years the subject of controversy and negotiation between the American and Spanish governments, the one claiming that Louisiana, extended eastward of the Mississippi to the Perdido; the other that it did not extend' on that side of the river beyond the island of Orleans, .alleged do be separated from West Florida by the Iberville. To have decided in favour of the plaintiff would have been adopting the Spanish construction of the Louisiana treaty in opposition to the pretensions and course of this government, which had taken possession of and exercised the powers of government over the territory between the-Mississippi and the Per-dido.

This court did not deem the settlement, of boundaries a judicial but a political question — that it was not'its duty, to lead, but to follow the action of the other departments of the government; that when individual rights depended on national boundaries, “ the judiciary is not that department of the government to which the assertion of its interests against foreign powers is confided, and its duty commonly is to decide upon .individual rights according to those principles which the political departments of the nation have established.” “If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous.” “ We think, then, however individual judges might construe the treaty of St Ildefonso, it is the province of the court to conform its decisions to the will of the’ legislature, if that will has been clearly expressed.” 2 Peters, 307.

As to the other question depending on the stipulations of the eighth article, the court declared: And the legislature must execute the contract before it cari become a rule for the court. 2 Peters, 314. But this case assumes a very different aspect. The only question depending is whether the claimants or the United States are the owners of the land in question. By consenting to be sued, and submitting the decision to judicial action, they have considered it as a purely judicial question,which we are now bound to decide as between man and man, on the same subject matter and by the rules which congress themselves have prescribed, of which the stipulations of any treaty and the proceedings under the same, form one of four distinct ones. We must therefore be distinctly understood as not in the least impairing, but affirming the principle of Foster v. Nelson. As the law giving jurisdiction to hear and determine this case not only authorises but requires us to decide it according to the law of nations and the stipulations of the treaty, we shall consider, “ that it has been very truly urged by the counsel of the defendant in error, that it is the usage of all the civilized nations of the world, when territory is ceded, to stipulate for the property of [its . inhabitants. An article to secure this object, so deservedly held sacred, in the view of policy, as well as of justice and humanity, is always required and is never refused.” Henderson v. Poindexter, 12 Wheat.

535. When such an article is contained in a treaty of cession, and its meaning submitted to our consideration, we shall follow up and effectuate the intention of congress, by deeming the subject matter to be, whether the land in controversy was the property of the claimants before the treaty, and if so, that its. protection is as much guarantied by the laws of a republic as Jthe ordinances of a monarchy. In so doing, we adopt and act upon another principle, contained in the opinion of this court fin the same case, in alluding to the treaty of boundary between the United States and Spain, concluded on the 27th October, 1795. “ Had Spain considered herself as ceding territory, she could. not have neglected a stipulation which every sentiment of justice and national honour would have demanded,, and which the United States could, not have refused.” Henderson v. Poindexter, 12 Wheat.

535. Spain was not regardless of those sentiments. She did not neglect; the United States did not refuse the stipulation in' this treaty which did cede territory. In the same spirit of justice and national honour the national legislature has required its highest judicial tribunal to finally decree on the effect of this stipulation on theirs and the rights of the claimants “ according to the law of nations” which is “ the usage of all civilized nations.” Such is the authority conferred on this court, and by the rules prescribed by the laws, which are our commission, we feel, in its language, “ both authorised and required,” “ with full power and authority to hear and determine all questions arising.in. this cause relative to the title of the claimants, the extent, locality and boundaries of the said claim, or other matters connected therewith, fit and proper to be heard and determined, and by a final decree, to settle and determine the same according to the law of nations,” 2d sec. act of 1824. Congress have laid this down as the first rule of our decision in the spirit of justice and national honour which pervades this law; the court will consider it as neither the last or least of its duties to embody it in such' their, final decree, if in their judgment the case before it calls for its application.

Our next rule of decision is — and proceedings under the treaty. By these are to be understood the acts and proceedings of the government, or others under its authority, subsequent to the treaty, in taking possession of the ceded territory, in organizing the local government, its acts within the authority of the organic law, the promises made, the pledges given by either the general or local government. Also the proceedings of commissioners and other officers or tribunals áppointed by congress to decide, and report on these claims so far as they have adopted and settled any rules and principles of decision within their powers, as guides to their judgment. These, in our opinion, are the “ proceedings under the same,” referred to, and intended by, the law, according to which we may decide, and are made a rule, a precedent for us.

The next guide is, “the several acts of congress in relation thereto,” clearly referring to the clause immediately preceding: “the stipulation of any treaty and proceedings under the same.” By “the several acts of congress in relation thereto,” must be taken as referring to all the laws on the subject matter of either, necessarily embracing lands, property and rights depending on the stipulations and proceedings so made and had. Thus the course of the legislature points to that of the judiciary, it must be in the same path.

Where congress have, by confirming the reports of commissioners or other tribunals, sanctioned the rules and principles on which they were founded, 'it.is a legislative affirmance of the construction put by these tribunals on the laws conferring the authority and prescribing the rules by which it should be exercised; or which is to all intents.and purposes of the same effect in law. It is a legislative ratification of an act done without.previous authority, and this subsequent recognition and adoption is of the same force as if done by pre-existing power and relates back to the act done.

The next rule laid down for our direction is, “ and the laws' and ordinances of the government from which it is alleged to be derived.” The laws of an absolute monarchy are not its legislative acts — they are the will and pleasure of'the monarch expressed in various ways — if expressed in any, it is a law;there is no other law making, law repealing power-call it by whatever name — a royal order — an ordinance — a cédula — a decree of council — or an act of an authorised officer — if made or promulgated by the king, by his consent or authority, it becomes as to the persons or subject matter to which it-relates, a law of the kingdom. It is emphatically so in Spain and all its dominions. Such, too, is the law of a Spanish province conquered by England. The instructions of the king to his governors are the supreme law of the conquered colony; magna charta, still less the common law, does not extend its principles to it — King v. Picton, 30 St. Tr. 8vo ed.

866. A royal order, emanating from the king, is a supreme law, superseding and repealing all other preceding ones inconsistent with it. The laws of the Indies, have not their force as such by any legislative authority vested in the council; their authority is by the express or implied expression of the royal will and pleasure; they must necessarily yield to an order, prescribing a new rule, conferring new powers abrogating or. modifying previous ones.

•The principle that the acts of a king are in subordination• to the laws of the country, applies only where there is any law of higher obligation than his will; the rule contended for may prevail in a British, certainly not in a Spanish province. There is another source of law in all governments, usage, custom, which is always presumed to have been adopted with the consent of those who may be affected by it. In England, and in the states of this union which have no written constitution, it is the supreme law; always deemed to have had its origin in an act of a state legislature of competent power to make it valid and binding, or an act of parliament; 'which, representing all the inhabitants of the kingdom, acts with the consent of all, exercises the power of all, and its acts become binding by the authority of all; g Co. Inst. 58—Wills, 116. So it is considered in the states and by this court; 3 Dall. 400; 2 Peters, 656, 657.

A general custom is a general law, and forms the law of a contract on the subject matter; though at variance with its terms, it enters into and controls its stipulations as an act of parliament or state legislature; 2 Mod. 238; W. Black. 1225; Doug. 207; 2 D. and E. 263—264; 1 H. Bl. 7, 8; 2 Binney, 486, 487; 5 Binney, 287; 2 S. and R. 17; 8 Wh. 591, 592; 9 Wh. 584, 591; and the cases there cited from 4 Mass. 252; 9 Mass. 155; 3 Day, 346; 1 Caines, 43; 18 Johns. 230; 5 Cr. 492; 6 D. and E. 320; Day, 511; 5 Cr.

33. The court not only may, but are bound to notice and respect general customs and usage as the law of the land, equally with the written law, and, when clearly proved, they will control the general law; this necessarily follows from its presumed origin, — an act of parliament or a legislative áct. Such would be our duty under the second section of the act of 1824, though its usages and customs were not expressly named as a part of the laws or ordinances of Spain. The first section of that act, giving the right to claimants of land under titles derived from Spain, to institute this proceeding for the purpose of ascertaining their validity and jurisdiction to the court to hear and determine all claims to land which were protected and secured by the treaty, and which might have been perfected into a legal title under and in conformity to the laws, usages, and customs oí Spain; makes a claim founded on them one of the cases expressly provided for. We eannot impute to congress the intention to not only authorize this court, but to require it to take jurisdiction of 'such a case, and to hear and determine such a claim according'to the principles of justice; by such a solemn mockery of it as would be evinced by excluding from our consideration usages and customs, which are the law of every government, for no other reason than that in referring to the laws and ordinances in the second section, congress had not enumerated all the kinds of laws and ordinances by which we should decide whether the claim would be valid if the province had remained under the dominion of Spain. We might as well exclude a royal order because it was not called a law. We should act on the same principle, if the words of the second section were less explicit, and ac cording to the rule established in Henderson v. Poindexter. See 12 Wh. 530, 540.

We are also required to finally decide icall other questions properly arising between the claimants and the United States.”

There is but one which has arisen in this case which does not refer to the laws of nations, the treaty and proceedings under it, the acts of congress, or the laws of Spain, — that is, the question of fraud in making the grant which is the foundation of the plaintiff’s title; which, as well as all others, we must, by the terms of the law, decide !l in conformity with the principles of justice.” We know of no, surer guides to the principles of justice, than the rules of the common law, administered under a special law, which directs, (section second) u that every petition which shall be presented under the provisions of this act, shall be conducted according to the rules of a court of equity,” and it does not become this tribunal to acknowledge,that the decisions of any other are to be deemed better evidence of those rules or the principles of justice.

In Conard versus Nicoll, a great and lamented judge thus defined fraud: “ The first inquiry is, what is fraud? From a view of all that has been said by learned judges and jurists upon this subject, it may be safely laid down, that to constitute actual fraud between two-or more persons to the prejudice of a third, contrivance and design to injure such third person by depriving him of some right, or otherwise impairing it, must be shown.”

He laid down three rules, which were incontrovertible:—

“ 1. That actual fraud is not to be presumed, but ought to be proved by the party who alleges it.

“2. If the motive and design of án act may be traced to an honest and legitimate source equally as to a corrupt one, the former ought to be preferred. This is but a corollary to the preceding principle.

“ 3. If the person against whom fraud is alleged, should be proved to have been guilty of it in any number of instances^ still if the particular act sought to be avoided be not shown to be tainted with fraud, it cannot be affected by these other frauds, unless in some way or other it be connected with or form a part of them.”

This court unanimously adopted these principles as the maxims of the common law; 4 Peters, 295, 296, 297, 310; and will be governed by them in this case ita. their opinion on the question of fraud.

The next subject for our consideration is, the evidence on which we are to decide. The third section of the act is as follows: “That the evidence which has been received by the different tribunals which have been constituted and appointed by law to receive such .evidence, and to report the same to the secretary of the treasury, or to the commissioners of the general land office, upon all claims presented to them, respectively, shall be received and admitted in evidence for or against the United States, in all trials under this act, when the p'erson testifying is dead or beyond the reach of the court’s process, together with such other testimony as it may be in the power of the petitioner, the person or persons interested in the defence made against establishing any claim, or the United States’ attorney to produce; and ivhich shall be admissible according to the rules of evidence and the principles of law.”

These provisions of the act of 1824 are applicable to this ease; they have not been altered by the act of 1828, and by the eighth section are expressly extended to the Florida claims. They are liberal — worthy of the government which has adopted and made them the rules by which to testtherights of private claimants to portions of the land embraced in the ceded territory. From a careful examination of the whole legislation of congress on the subject of the Louisiana and Florida treaties, we cannot entertain a doubt that it has from their beginning beén intended that the titles to the lands claimed should be settled by the same rules of construction, law and evidence, in all their newly acquired territory. That they have adopted as the basis of all their acts, the principle that the law of the province in which the land is situated.is the law which gives efficacy to the grant, and by which it is to be tested, whether it was property at the time the treaties took effect.

The United States seem never 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. In giving jurisdiction to the district court of Missouri to decideon these claims, the only case.expressly excepted is that of Jacques Glamorgan (in section 12, 3 Story L. U. S. 1964); and in the corresponding law, as to Florida; those annulled by the treaty, and those not presented in time, according to the acts of congress (section 6, pamphlet 62).

The United States have by three cessions acquired territory, within which there have been many private-claims to land under Spanish titles. The first in point of time was by the compact with Georgia, in 1802, by the terms of which it was stipulated —“ That all persons who, on the 27th October 1795, were actual settlers within the territory thus ceded, shall be confirmed in all their grants, legally and fully executed prior to that day, by the former British government of West Florida, or by the government of Spain.” (1 Laws, 489.)

The stipulátions of the treaties by which they acquired Louisiana and Florida, contained provisions of a similar nature as to claims to land under Spain before the cession.

The whole legislation of Congress, from 1803 to 1828, in relation to the three classes of cases, so far as respected Spanish titles, is of an uniform character on cases of a corresponding description. The rules vary according to the kind of title set up; distinctions have been made in all the laws between perfect or complete grants,' fully executed, or inchoate incomplete ones, vell as in English — the king had a direct interest, so far as affected his own dominions adjoining the United States, and a laudable desire to protect the inhabitants of the ceded provinces in all their rights and property. His honour was concerned most deeply in not do ing an act which should deprive his subjects of what he had granted to them; by making a cession of the territory to a powerful nation — not content with ceding and renouncing only what belonged'to himself, he was desirous of expressing his intention of preserving his faith, by an article which should show it to be not to 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 intention on the part of the king of Spain, that the grants referred to operated ie in presente’ 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 by both governments in the very act of cession, subject to no future contingency. This furnishes a powerful and obvious reason for inserting this article in Spanish, so that the intention would be clearly understood by words denoting it in a manner not to be mistaken whenever any doubt should arise; and whenever the treaty should be produced as evidence of the cession, or for any other purpose, there shoúld always appear in the native language of his' then or former subjects, full evidence of his declared intention to protect their rights acquired by his giants, pledging his honour and faith for their security.

His minister was not willing to trust so important a matter, to a treaty only in the English language. The present situation of the holders of the grants, the state of the country, the opinion of this court in Foster v. Nelson, and the argument in this cause, show the wisdom and justice which prompted him to express the intention of the king in his own language and that of his subjects. Similar or equally good reasons may have induced the ministers of this government to have the treaty drawn in its language, and thus considering the treaty in both languages, and each as is declared at its head, “ original,” the one version neither controls nor is to be preferred to the other: each expresses the meaning of the contracting parties, respectiyely, in their own language, as in-the opinion of each, expressing and declaring the intention of. both. If they are mistaken, and the words used do not and.are not understood afterwards by the parties to convey the same meaning in both languages; then, both being originals and of equal authority, we must resort to some other mode than the inspection of the treaty to give it a proper construction, under the special acts of congress, which require us to decide on the validity of the grants referred to in the eighth article, by the principles and rules of justice and equity, the law of nations: the stipulations of the treaty, the acts of congress, and the laws of Spain, and on such testimony as may be admissible by the rules of evidence and principles of law. Applying, then, these tests to the eighth article, and to ascertain its legal meaning when the contracting parties understand it differently, we consider it as in its effect and legal operation, an exception and reservation of the lands so granted, from the territory ceded to the United States. 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 theirs was necessary to their ratification and confirmation, the legal estate, much less the beneficial interest, never passed to them. A treaty of cession is a deed of the ceded territory, the sovereign is the grantor, the act is his, so far as it relates to the cession, the treaty is his act and deed, and all courts must so consider it, and deeds are construed in equity by the rules of law.

A government is never presumed to grant the same land twice, 7 J. R.

8.

Thus a grant, even by act of parliament, which conveys a title good against the king, takes away no right of property from any other; though it contains no saving clause, it passes no other fight than that of the public, although the grant is general of the land; 8 Co. 274, b.; 1 Vent. 176; 2 J. R.

263. If land is granted by a. state, its legislative power is incompetent to annul the grant and grant the land to another; such law is void, Fletcher v. Peck, 6 Cr. 87, &c. A state cannot impose a tax on land, granted with an exemption from taxation, New Jersey v. Wilson, 7 Cr. 164; nor take away a corporate franchise, Dartmouth College v. Woodward, 4 Wheat.

518. Public grants convey nothing by implication; they are construed strictly in favour of the king; Dy. 362, a; Cro. Car.

169. Though such construction must be reasonable, such as will make the true intention of the king as expressed in his charter take effect, is for the king’s honour, and stands with the rules of law; 4 Com. Dig. 428, 554; G. 12; 10 Co.

65. Grants of the strongest kind, “ex speciali gratia, certa scientia, et mero motu,” do not extend beyond the meaning and intent expressed in them, nor, by any strained construction, make any thing pass against the apt and proper, the common and usual signification and intendment of the words of the grant, and passes nothing but what the king owned;. 10 Co. 112, b.; 4 Co. 35; Dy. 350, 1, pl.

21. If it grant a thing in the occupation of B. it only passes what B. occupied; this in the case of a common person, a fortiori in the queen’s case, 4 Co. 35 b.; Hob. 171; Hard.

225. Though the grant and reference is general, yet it ought to be applied to a certain particular, as in that case to the charter to Queen Caroline — id certum est quod cerium reddipotest, 9 Co. 30, a. 46 a. 47, b.

S. P. When the king’s grant refers in general terms to a certainty, it contains as express mention of it as if the certainty had been expressed in the same charter; 10 Co. 64 a. A grant by the king does not pass any thing not described or referred to, unless the grant is as fully and entirely as they came to the king, and that ex cerid scientia, &c. Dy. 350, b.; 10 Co. 65, a.; 2 Mod. 2; 4 Com. Dig. 546, 548. Where the thing granted is described, nothing else passes, as “ those lands;” Hard.

225. The grantee is restrained to the place, and shall have no lands out of it by the generality of the grant referring to it; as of land in A. in the tenure of B, the grant is void if it be not both in the place and tenure referred to. The pronoun “ilia” refers to bofh necessarily, it is not satisfied till the sentence is ended, and governs it till the full stop. 2 Co. 33; S. P. 7 Mass. 8, 9; 15 J. R. 447; 6 Cr. 237; 7 Cr. 47, 48. The application of this last rule to the words “ de illas,” in the eighth article, will settle the question whether its legal reference is to lands alone, or to “ grants” of land. The general words of a king’s grant shall never be so construed as to deprive him of a greater amount of revenue than he intended to grant, or to be deemed to be to his or the prejudice of the commonwealth; 1 Co. 112, 13 b. “ Judges will invent reasons and means to make acts according to the just intent of the parties, and to avoid wrong and injury which, by rigid rules might be wrought out of the act.’.’ Hob, 277. The words of a grant are always construed according to the intention of the parties, as manifested in the grant by its terms or by the reasonable and necessary implication, to be deduced from the situation of the parties and of the thing granted, its nature and use; 6 Mass. 334, 5; S. & R. 110; 1 Taunton, 495, 500, 502; 7 Mass. 6; 1 B. & P. 375; 2 J. R. 321, 2; 6 J. R. 5, 10; 11 J.R. 498, 9; 3 E. 15; Cro. Car. 17, 18, 57, 58, 168, 169; Plo. 170, b. 7; E. 621; Cowper, 360, 363; 4 Yeates, 153. These are the fixed rules governing private grants, which are construed strongly against the grantor and liberally for the grantee. Yet he shall never take by general words or by construction what the grantor had before granted to another. The controlling effect which the situation of the grantor and the property alleged to be conveyed as evidence of the intention of the grantor, is in law such, that in the case of Moore v. Magrath, in 1774, Lord Mansfield declared, “ I am very clear it might be plainer with the deed, but without seeing the deed it is plain enough.” The words of the deed were sweeping ones: “ Together with all his, the said Michael Moore’s lands, tenements and hereditaments in Ireland.” Yet it did not pass his paternal estate; the court was unanimous, Cowper, 9, 11; the authority of this case is unquestionable. In Shirras v. Craig, this court decided, that when there was a piece of property answering to the description in the deed, other property included in the deed, but not intended to be conveyed, did not pass, 7 Cr. 47, 48. It is useless to pursue the inquiry, whether by the common law the grant of a king can be adjudged to pass what he had conveyed to another, and whose title he intended to ratify and confirm by the very act of a grant to another, by excepting it from the generality or the thing granted, and reserving it from the operation of the new grant for the use of a prior grantee. But it is not deemed useless to show the doctrine of this court as to exceptions and reservations in public and private grants. “ The insertion of this reservation in this act (a law of North Carolina), leads almost necessarily to the opinion that the lands granted to Martin and Wilson, were a part of those to which the act related, and the words of the section show that their title was acquired by this act: “By no course of just reasoning can it be inferred, from these permissions to make appropriations within bounds, not open to entry generally, that a vested right to-lands not lying-within the limits to which the act relates is annulled,” Rutherford v. Green, 2 Wheat.

205. In order, therefore, to ascertain what is granted, we must first ascertain whát is included in the exception; for whatever is included-in the exception, is excluded from the grant, according to,the' maxim laid down in Co. Lit. 47 a. (4 Com. Dig. 289, Fait. E. 6.) Si quis rem dat, et partem retinet, ilia pars quarn retinet semper cum eo est et semper fuit; Greenleaf v. Birth, January 1832, opinion of this court by Story,-Justice, the other judges concurring unanimously on this point.

It became, then, all important to ascertain what -was granted by what Was excepted. The king of Spain was the. grantor, the treatywas his deed, the exception was made by him, and its nature and effect depended on his intention, expressed by his words, in reference to the thing granted and the thing reserved and excepted in and by the grant. The Spanish version was in his words and expressed his intention,' and though the American version showed the intention of this government .to be different, we cannot adopt it as the rule by which to decide what was granted, what excepted, and what reserved; the rules of law are too clear to be mistaken and too imperative to be disregarded by this court. We must be governed by the cléarly expressed and manifest intention of the grantor, and not the grantee in private a fortiori in public grants. That we might not be mistaken in the intention or in the true meaning of Spanish words, two dictionaries were consulted, one of them printed in Madrid, and two translations were made of the eighth article, each by competent judges of Spanish, and both agreeing with each other, and the translation of each agreeing with the definition of the dictionaries. “Quedan5*in Spanish, correctly translated, means “ shall remain” — the verb “ quedan” is in French “ reste-,” Latin, “ manere” “ remunere,” and English, “ remain” in the present tense. In the English original, the words are “ shall be55 — words in the future. The difference is all important as to all Spanish grants, if the words of the treaty were that all the grants of land “ shall remain confirmed,” then the United States by accepting the cession, could assert no claim to these lands'thus expressly excepted. The proprietors could bring suits to recover them without any action of congress,.and any question arising would be purely a judicial one. “Shall be ratified,” makes it necessary that there should be a law ratifying them or authorizing a suit to he brought, otherwise the question would be a political one, not cognizable by this court, as was decided in Foster and Elam v. Nelson.

But aside from this consideration, we find the words used in the Spanish sense as to the grants made after the 24th of January 1818, which are, by the same article in English, “ hereby declared and agreed to be null and void. ” The ratification is in Spanish and English. The Spanish words in the Spanish version are “ quedado” and “ quedan” in reference to the annulled grants; the English are “ have remained,” “do remain.” The principles of justice and the rules of both Jaw and equity are too obvious not to require that in deciding on the effect and legal operation of this article of the treaty by the declared and manifested intention of the king, the meaning of Spanish words sh mid be the same in confirming as in annulling grants a regard to the honour and justice of a great republic, alike forbid the imputation of a desire that its legislation should be so construed and its law so administered, that the same word should refer to the future as to confirming and to the present in annulling grants in the same article of the same treaty.

For these reasons and in this conviction, we consider that the grants were confirmed and annulled respectively — simultaneously with the ratification and confirmation of the treaty, and that when the territory was ceded, the United States had no right in any of the lands embraced in the confirmed grants.

As this point was urged at length by counsel on both sides, it was due to them that the court should consider it fully and express their opinion upon it clearly; argued as this case has been, upon grounds deemed by both Aides vital to its merits-.we could not exclude them upon our consideration. But there are other grounds, which, though no] adverted to by counsel, .would, in our view, have led to the same result. It is wholly immaterial to the decision of this case, whether the eighth article of the treaty is construed to be an actual present confirmation and ratification of the grants by both governments, or a stipulation of it for the future; for the laws of 1824 and 1828, require .us .to decide on the validity of the title of the claimants under those grants according to the stipulation of any treaty. Our decree is final, and, if in favour of the claimants, is conclusive against the title of the United States. Under these laws the effect of the stipulation to ratify and confirm the grants is a judicial .question, referred to us as such by congress; in deciding upon it by the rules prescribed, we assume no authority, we but obey the laws, as in duty bound, by decreeing according to our most deliberate and settled judgment. Should we be called on to decide on the validity of a title acquired by any Spanish grant not embraced by these laws, we should feel bound to follow the course pursued in Foster against Nelson, in relation to the stipulation in the eighth article of the Florida treaty, “ that the legislature must execute the contract before it can become a rule for this court,” 2 Peters, 314. We are thus explicit to avoid possible misapprehension.

We are also of opinion that the legal construction of the eighth article in English, would lead to the same conclusion at which we have arrived, according to the view heretofore taken of the Spanish. The law deems every man to be in the legal seisin and possession of land to which, he has a perfect and complete title; this seisin and possession is co-extensive with his right and continues till he is. ousted thereof by an actual adverse possession. This is a settled principle of the common law, recognized and adopted by this court in Green v. Litter, 8 Cranch, 229, 230; Barr v. Gratz, 4 Wheat. 213, 233; Propagation Society v. Pawlett, 4 Peters, 480, 504, 506; Clarke v. Courtney, 5 Peters, 354, 355. And is not now to be questioned.

This gives to the words “ in possession of the lands” their well settled and fixed meaning; possession does not imply occupation or residence; had it been so intended, we must presume they would have been used. By adopting words of a known legal import, the grantors must be presumed to have used them in that sense, and to have so intended them; to depart from this rule would be to overturn established principles.

To adopt the literal English version and reject its meaning as settled at common law and by this court would make this article confine the confirmation of grants of land to cases of actual occupation and residence. This would be to give to-the treaty a construction more limited than the acts of congress have done to place Spanish grants on a worse footing under the Florida, than they were under the Louisiana treaty, or the compact with Georgia, and to exclude from our consideration many of the same classes of cases on which special tribunals in their proceedings under the stipulations of the treaty had decided and confirmed similar grants. We are satisfied that by adopting and acting on this version, so taken literally, we should violate the intention and spirit of the laws which give us jurisdiction, and are the guides to its exercise; we cannot decide according to the principles of justice in any other way than by considering the words according to their legal acceptation too often given by this court not to be respécted by' it. By grants of land we do not mean the mere grant itself, but the right, title, legal possession and estate, property and ownership; legally resulting upon a grant of land to the owner. There is one other expression in the second clause of the eighth article which we deem it oúr duty to notice. In the English version it is “but the owners in possession of such land,” &c.; there is no sentence in the Spanish version which can correspond with this, the word “ proprietaries” means owners, but not “ owners in possession of such ¡and.” The intention of the Spanish grantor is too apparent to be mistaken by any tribunal authorized to decide judicially on the true construction of a contract according to the meaning and intention of the contracting-parties. This furnishes another powerful reason in favour of the construction we have given to .the English' phrase, by which their legal intendment and effect are' the same.

This part of the eighth article was for the benefit Of those persons who were purchasers under the faith of a public grant, evidently intended to be protected and secured in their rights by the stipulation of a treaty which ought to be construed liberally by a tribunal authorized and required to decide on the validity of these grants by the principles of justice and according to the rules of equity having a due regard to this article of the treaty. We cannot better regard it than by carrying into effect these principles-and rules, by such an exposition of it as we are convinced meets the intention of the par-ties and effectuates the object intended to be accomplished. We now consider the conditions on which the grants were made. According to the rules and the law by which wi are directed to decide this case, there can be no doubt that they are subsequent, the grant is in full property in fee, an interest vested on its execution which could only be divested by the breach or non-performance of the conditions, which were, that the grantees should establish on the lands two hundred Spanish families together with the requisites pointed out, and which shall be pointed out by the superindendency: and begin the establishment within three years , from the date of the grant. No time was fixed for the completion of the establishment, and no new requisites or conditions appear to hare been imposed. From the evidence returned with the rec ord we are abundantly satisfied that the establishment was commenced within the .time required, (which appears to have been extended for one year beyond that limited by the grant), ,and in a manner which, considering the situation of that country as appears by the evidence, we must consider as a performance with that part of the condition. Great allowance must be made not only from the distracted state and prevalent confusion in the province at the time of the grant, but until the time of its occupation by the United States. Though a court of law must decide according to the legal construction of the condition and call on the party for a strict performance, ye t a court of equitylaeting on more liberal principles will soften the rigour of law, and though the party cannot show; a legal compliance with the condition, if he can do it ey pres they will protect and save him from a forfeiture; 4 Dall. 203; 2 Fonb. 217, 218, 220; 1 Vern. 224, 225; 2 Vern. 267, and note.

The condition of settling-two hundred families on the land has not been complied with in fact; the question is, ha.‘¡ it been complied with in law, or has such matter been presented to the court as dispenses with the-performance and divests the grant of that condition.

It is an acknowledged rule of law that if a grant is made on a condition subsequent, and its pérformance becomes impossible by the act of the grantor, the grant becomes single. We are not prepared to say that the condition of settling two hundred Spanish families in' an American territory has been, or is possible; the condition was not unreasonable or unjust at the time it was imposed, its performance would probably have been deemed a very fair and adequate consideration for the grant, had Florida remained a Spanish province. Hut to exact its performance after its cession to the United States would be demanding the “summum jus” indeed, and enforcing a forfeiture on principles which if not forbidden by the common law, would be utterly inconsistent with its spirit. If the case required it, we might feel ourselves at all events, justified, if not 'compelled to declare, that the performance of •this condition • had become impossible by the act of the grantors; the transfer of the territory, the change of government, manners, habits, customs, laws, religion, and all the social and political relations of society and of life. The United States have not submitted this case to her highest court of equity on such grounds as these, we are not either authorised or required by the lasv which, has devolved upon us the final consideration of this case to be guided by such rules or governed by such principles in deciding on the validity of the claimants’ title. Though we should even doubt, if sitting as a court of common law and bound to adjudicate this claim, by its rigid rules, the case has not been so submitted. The proceeding is in equity according to its established rules our decree must be in conformity with the principles of justice, which would in such a case as this not only forbid a decree of forfeiture but impel us to give a final, decree in favour of the title conferred by the graqt.

It has been objected to the validity of the grant that it exceeds the quantity authorized by the laws of the province. The view we have taken of the royal order dated in September 1817, preceding the grant, and by the* authority of which it purports to have been made, renders it unnecessary to say more in relation to this objection than that, the disposition of the royal domain in Florida was within the jurisdiction of the intendant Ramirez. That he had power to make the grant, the. terms and extent of which were within his discretion, of the proper exercise of which this court has neither the power or right to judge. We will, however, observe that we are well satisfied that the local authority was competent to make grants of lands of a greater .quantity, than that to which the counsel of the United States have contended that they were limited; the United States have never insisted on limiting grants to such a pittance. .Their uniform legislation and the proceedings of all the tribunals wjbo have acted under their authority during all the time which has elapsed since their acquisition of any territory within which Spanish grants have been issued show that they have never been disposed to confine them so narrowly,' but the contrary. .This case does not require us to define their extent.

The question of fraud has been pressed in the argument, but we perceive nothing in the evidence which shows its existence so as to bring it home to the claimants or that it exists at all according to the definition and rules heretofore settled.

It is objected that the lands in question are within the Indian boundary, and not subject to be granted. Of the fact of such location there seems lobe no doubt, as the centre of the grant is the Indian town of Alachua. The title of the Indians to these lands is not a matter.before us.; the grant is made subject to their rights if they return to resume them, and their abandonment has been ascertained by a proceeding which the intendant in the grant calls a sentence pronounced by him in his official character, on the report of the attorney and surveyor general. This seems to be a mode of proceeding known to the Spanish law in force in the province, in the nature of an inquest of office, as a judicial act, which vitally affecting the royal domain, come within its general superintendency, under the royal order of September. It ivas conducted, so far as we can perceive, by the proper officers; the law officer of the crown to report on. the laws affecting the subject, and the surveyor general as to the fact'; so that on their joint report, the superior officer could decree officially, whether, from the nature of the Indian right of occupancy, it had in law and by the actual condition of the land, in fact, reverted to and beeome re-annexed to the royal domain by the abandonment of the occupancy. The intendant pronounced his sentence on the report of these officers, and declared the granted lands to be a part of the royal domain, and open to a grant, reserving the Indian right of occupancy whenever it should be resumed. The fact of abandonment was the important one .to be ascertained, if voluntary, the dominion of the crown over it was unimpaired in its plenitude; if by'force the Indians had the right whenever they had the power or inclination to return.

This is a matter which we feel bound to consider a judicial one, and that we cannot look behind the final sentence of an authorised tribunal to examine into the evidence on which it was founded; but must take it as a “res adjudícala” by a foreign tribunal, judicially known and to be respected as such. Similar proceedings are directed by the various acts of congress; the land commissioners, or officers of the land offices, as the case may be, confirm or reject claims, and the land embraced in the rejected claims, reverts to the public fund. So it is provided by the seventh section of the act of 1824, as to claims barred by not being duly presented or prosecuted, or which shall be decreed against finally by this court. There is another answer to this objection, which deserves notice: grants of land within the Indian boundary, are not excepted in the laws referring them to judicial decision; congress made what exceptions they thought proper; as the law has not done it, we do not feel authorised.to make an exception of this.

It is lastly objected, that the extension of time by the intendant in December 1820, was without authority, being subsequent to the ratification of the'treaty by the king of Spain. But the ratification by the United States was in February following, and the treaty did not take effect till its ratification by both parties operated like the delivery of a deed to make it the binding act of both. That it may and does relate to its date as between the two governments, so far as respects the rights of either under it, may be undoubted; but as respects individual rights, in any way affeeted by it, a very different rule ought to prevail. To exact the performance of the condition of-settlement of two hundred Spanish families, or any great progress in its commencement, after the date of the treaty and during the confused and uncertain state of things preceding its ratification; would be both unreasonable and unjust; and if the question was new in this court, we should have no hesitation in saying, that as to the grants of land subject to the condition of settlements, the ratification of the treaty must be taken at its date. But the question is not a new one. In .1792 the. state of Pennsylvania passed a law for the sale of her va cant lands; the warrants issued under it contained a condition of improvement and settlement, within two years from their date, unless prevented by force of arms of the enemies of the United States, from making and continuing such settlement. The treaty of Greenville was made in August 1794, but not ratified till December 1795. The uniform decisions of the supreme court of Pennsylvania, and the solemn decision of this court in Huidekoper’s Lessee against Douglass, have settled the date of the treaty to be its ratification, so far as it bears on or in any way affects the rights of parties under the land laws of Pennsylvania. The obligation to settle did not begin till the expiration of two years thereafter, and if commenced in the' course of the following spring, the condition has been considered as complied with. 3 Cranch, 1, 65; 4 Dall. 199.

Being therefore of opinion that the title of the claimants is valid, according to the stipulations of the treaty of 1819, the laws of nations, of the United States, and of Spain, the judgment of the court below is affirmed, (a) (a)

By a reference to the thirteenth and fourteenth lines in the sixth section of'this law, as.printed in the pamphlet edition, in page 62, it reads, “ according to the forms, rules, &c. prescribed by the distiict judge and claimants in the state of Missouri, &c. by act of congress,” &c. To-have taken this expression literally, would have confined the superior court of Florida to the rules prescribed by the judge of the district court of Missouri, and claimants; by acts of congress of 1824. That act authorised the judge to prescribe no rules, and it was absurd to suppose it meant that the claimants themselves should prescribe them. The court, therefore, could not. but consider the evident meaning of the law to be “ rules,” &c. prescribed by the law itself, and wa3 so stated in tire opinion, which was delivered one day sooner than had been expected, and there was no time for revision'. Satisfied that there was an error in the printing, I examined the" original roll in the department of state, yesterday, and found the mistake; the word by had been inserted in the printed law, instead of to, as it was in the original roll: so that the law reads, “ the rules, &c. prescribed to the district judge and claimants by the act of congress.” The important bearing of this word on the power of the court and the rules of its decision, has made the insertion of this note necessary, and as it may be useful in courts at a distance from the seat of. government to have a correct copy of this section of the law, the following paper is directed'to be appended; 20th March 1832. Per Mr Justice Baldwin.

I certify that the following is a true copy of the sixth section of an act of congress, approved the 23d of May 1828, entitled “ an act supplementary to the several acts providing for the settlement and confirmation of private land -claims in Florida;” viz.

“ Sec.

6. And be it further enacted, that all claims to land within the territory of Florida, embraced by the treaty between Spain and the United States, of the 22d of February 1819, which shall not be decided and finally settled under the foregoing provisions of this act, containing a greater quantity ot land than the commissioners were authorised to decide, and-above the amount confirmed by this act, and which have not been reported as antedated or forged, by said com. missioners, or register aqd receiver acting as such, shall be received ami adjudicated by the judge of the superior court of the district within which the land lies, upon the petition of the claimant, according to the forms, rules, regulations, conditions, restrictions, and limitations prescribed to the district judge and claimants in the state of Missouri, by act of congress, .approved May'2.0th, 1824, entitled ‘ an act enabling the claimants to land within the limits of the state of Missouri and territory of Arkansas, to institute proceedings to try the validity of their claims:’ Provided, that nothing in this section shall be construed to authorise said judges to take cognizance of any claim, annulled by the said treaty or the decree ratifying the' same by the king of Spain; nor any claim not presented to the commissioners or register and receiver, fn conformity to the several atts of congress providing for the settlement of private land claims in Florida.”

Faithfully compared with the roil’in this office.

Witness my hand, at the department of state, in the city of Washington, this 20th day of March 1832.

(Signed) Daniel Brent, C. C.

(a)

An Impressions/ this opinion was submit(Vd/to,_anii correcte'dTby, Mr Justice Baldwin by the printer, before it was put.to press.

'Mr Justice Thompson,

dissenting.

Not concurring in the conclusion to which the court has come in this case, and considering the. magnitude of the property involved, not only in this case but in the application of the principles which govern the decision, to other cases, and. that th,e construction now given to the treaty is confessedly at variance with that which has been heretofore adopted, I shall briefly assign my reasons for dissenting from the opinion of the court. It is not my purpose to enter into an examination of all the questions which have been discussed at the bar. The view which I have taken of the case, does n;ot make it necessary for me to do so.

The grant under which the petitioners in the court below set up their claim, bears date on the 22d of December IS 17, and is for a tract of land in East Florida, a little short of three hundred thousand acres. It was made by Don Alexander Ramirez, intendant o£- the island of Cuba, and superintendent of -the two Floridas. It recites that the-memorial for the same was presented to the intendancy on the 15th of November, then last past, praying a gratuitous concession Of the land, and offering to make an establishment in the territory, known by the name of Alachua, composed of two hundred families. The grant is thereupon gratuitously made, as therein expressed, in full propertyand with the precise obligation, to establish there two hundred families, which must be Spanish, the establishment beginning within the term of three years, at most; without which the grant shall be considered null and void.

The validity of this claim, depends on the construction of the eighth article of the treaty between the United States and the king of Spain, bearing date the 22d of February 1819. It is contended on the part of the appellees, that under .the true construction of this treaty the only questions open for inquiry are, 1st, whether the grant is genuine, and, 2dly, whether made by lawful authority. That upon the' establishment of these points, the treaty, ipso facto, confirms the grant, and closes the door to alb further inquiry — the date of the grant being antecedent to that of the,treaty. It is admitted that, this is a different interpretation of the treaty, from that which has heretofore prevailed in our own government; and the change of construction iá rested upon an interpretation of the Spanish language, as used in the treaty,.rejecting the English side of that instrumént. The treaty when signed was in both languages; and each must be considered as the original language, and neither-as a translation. It cannot be said that the English is an erroneous translation, of the Spanish, any more than that the Spanish is an erroneous translation.of the English. The English sidétjf the eighth article of the' treaty reads thus: "all the grants of land' made before the 24th of January 1818, by his catholic majesty,- or by his lawful authorities, in the said territories ceded by his majesty to the. United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent, that the same grants would be valid if the territories had remained under the dominion of his catholic majesty. But the owners in possession of such lands, who by reason of the recent circumstances of-the Spánish nation, and the revolutions in Europe, have been prevented from fulfilling all the conditions of their grants, shall cotaplete them within the terms limited'in the same, respectively, from the date of the treaty; in default of which the said grants shall be null and void. All grants made since the 24th of January 1818, when the first proposal on the part of His catholió majesty for the cession of the Floridas was made, are hereby declared to be null and void.”

The material, parts in which the English and Spanish are said not to agree are, 1st, where the English declares that the grants “shall be ratified and confirmed,” the Spanish is “ shall remain ratified and confirmed;” and, 2dly, where the English is, “shall be ratified and confirmed to the persons in possess on of the land,” the Spanish construction is, “to the persons in possession of the grants;” and, 3dlyj in that part of the article which extends the time for fulfilling thp conditions, which according to the English, is, to the owners in possession of the “land,” the Spanish construction is, “the owners in possession of the grants.” It will readily be pereeiyed that the different readings lead to very different results, and which materially affect the grant in question. If titles are confirmed only to persons in possession#! the land at thé date of the treaty, the grant in question does not come within the saving; for there is no pretence that Arredondo, or any person claiming under him, was at the date of the treaty in-possession of the land, or had done any thing towards fulfilling the conditions upon which the grant was made to depend, and without which it is declared to be null and void. If the construction of the Spanish side of the treaty, as now contended, is to be adopted, and all grants before the 24th of January 1818, are confirmed by the treaty, proprio vigore, — the declaration that they shall be confirmed to the same extent that the same grants-would be valid, if the territories had remained under the dominion of his catholic majesty, are entirely nugatory, and must be rejected: for we have no right to enter into the inquiry how far they would be valid under the Spanish government. Such was most manifestly not the intention of the contracting parties; but that the United States should be substituted in the place of Spain, and should carry into execution in good faith the contracts made under the Spanish government for the disposition of the lands, and which the Spanish government was bound ex debito justitiee to carry into execution. The treaty must be considered as made in reference to an established system relative .to the disposition of the land in the territories ceded — and that' all grants would be open to examination, whether valid or not, according to the rules and regulations established by such systemi It seems to be admitted, that if the English side of the treaty is to govern, the grant in question would not come within the saving of the eighth article, unless the date of the treaty is to be considered as of the time it was finally ratified on the 19th of February 1821. Before which time it is contended, the establishment was commenced according to the conditions of the grant. This question will be noticed hereafter. I do not profess to understand the Spanish language, and shall therefore not undertake to say whether the criticisms are well founded or not. But it must strike any one as a little extraordinary, not only that the negotiators of the treaty should have sanctioned such a material discrepancy; but that congress should have been legislating for ten years past upon the English side of the treaty, different boards of commissioners sitting and trying the titles under such constructions, and that this court should have fallen' into the same error, and the mistake not discovered till now.

But admitting this discrepancy, as now contended for, exists between the English and Spanish side of the treaty, the question arises, which must we adopt? I know of no rule that requires a court of justice to reject the English, and adopt the Spanish. If congress in their liberality should think proper to do this, the power could not be disputed, and so far as it extended to the protection of actual,bona fide settlers upon the land, the power, in my judgment, would be wisely and discreetly' exercised. But it does not seem to me that a court of justice can be called upon, as a matter of courtesy, to yield this to a foreign power,, in the construction of a treaty; and no rules of law applicable to the construction of contracts, will, in my judgment, justify it. It certainly will not be pretended that the royal rule of construction applies to this case. That where a grant is made by the. king, it is to be taken most beneficially for the king and against-the grantee. It is, I think, not claiming too much to consider it a contract between equals; and the rule would be more applicable which requires in such case, that, the grant should be construed most strongly against the grantor. It is certainly true, as a general rule, that all written instruments are to be construed by themselves, without resorting to evidence dehors the instrument, to ascertain the intention of the parties, except where there is a latent ambiguity, which is not the case here. But that principle cannot rwith propriety be applied to the present case; the difficulty does notarise from any obscurity either in the English or in the Spanish side of the treaty, if considered separately; but from a discrepancy, when -compared together; and, in my judgment, presents a proper case for an inquiry into the intention and„u’nderstanding of the parties who negotiated the treaties.

“ Every treaty,” says Vattel, “ must be interpreted as the parties understood it when the act was proposed and accepted.” The lawful interpretation of the contract ought to tend only to the discovery of the thoughts of .the author or authors of --the contract; as soon as we meet with any obscurity, we should seek for what was probably in the thoughts of those who drew it up, and interpret it accordingly. This is the general rule of all interpretation. That'all miserable subtleties and quibbles about words are overthrown by this unerring rule. (Vattel, see 262, p. 228, 230.)

Such understanding, in the present case, is to be collected from written evidence which will speak for itself, and not from cparole declarations, which might be misunderstood or misrecollected; and if we resort to such written evidence, no doubt, it appears to me, can remain on the construction of the treaty, that it was not the understanding, either of Mr Adams or Don Onis, that all grants of land made before the 24th of January 1818, by his catholic majesty or his lawful authorities, should' be confirmed by the mere force and operation of the treaty.

It is said the treaty does not purport, to transfer private property; that all such property is excepted under the second article. This proposition cannot be true in the broad extent to which it has been laid down. It may not transfer private property, but it annuls private property, if every grant, of whatever description, is to be considered private property. For upon this construction, there would be a direct repugnancy between the second and the eighth articles; the latter declares that all grants made since the 24th of January 1818, shall be null and void. But the king of Spain did not consider a mere gratuitous grant, upon conditions whjch had in no manner whatever been fulfilled, as private property. This indst have been the, ground upon which he annulled the grants to Alagon, Punon Rostro, and Vargas. So it was understood by Don Onis, as will be shown hereafter by his correspondence. And the same.power was assumed over like grants in other eases, where no private right became vested by taking possession, or doing some act towards fulfilling the condition of the grants; and where that has been done, the right is secured to the person in possession, according to the provisions of the eighth article. But let us look at the correspondence between Mr Adams and Don Onis which lead to this eighth article.

The material point of difference between the negotiators in framing this article was, whether it should absolutely confirm all grants made prior to the 24th of January ISIS, or only sub modo, so as to enure to the benefit of actual bona fide settlers on the land at the time the treaty wa made; and the article resulted in the form in which it now stands.

The article states that the proposition to cede the territory originated on the part of Spain on the 24th of January 1818; or that is assumed as the date, though doubtless there must have been some previous communications on the subject, either here or by our minister in Spain; for Mr Erving, by his letter of the 10th of February 1818, wrote to Mr Adams, that the king of Spain had lately made large grants of land in East Florida to several of his favourites; and that he had been credibly informed, that by a sweeping grant to the duke of Alagon, he had within a few days past given away the remainder. 1st vol. State Papers, 18.

Our government was therefore apprised of what was probably going on with respect to grants in Florida, and must be presumed to have intended to guard against them. On the-24th of October 1818, Don Onis sent to Mr Adarps a proposition to cede the Floridas, with the following clause: “ The donations or sales of lands made by the government of his majesty, or by legal authorities, until this time, are nevertheless to be recognized as valid.” On the 31st of October Mr Adams answered, declining his proposal, and requiring all the grants lately alleged to have been made by Spain should be cancelled, and proposed to carry back the time to all grants made after the year 1802. This Don Onis declined, but offered to annul all grants made after the 24th January 1818; saying, that the grants had been made with a view to promote population, cultivation and industry, and not with that of alienating them; and that they should be declared null and void in consideration of the grantees not having complied with the essential conditions of the cession. 1st vol. State Papers, 25, 26.

Again, on the 9th February 1819, Don Onis, in his project of a treaty sent to Mr Adams, reiterates the same, provision, that all grants shall be confirmed and acknowledged as valid except those which had been issued after the 24th of January 1818,-which should be null in consideration that the grantees had not complied with the conditions of the cessions. 1 S. P. 87.

In all this correspondence we find Don Onis persisting in his claim, that all grants prior to the 24th of January 1818, should be absolutely confirmed; and assigning as the reason why those issued subsequent to that date should be annulled, because the grantees had not complied with the conditions; and we find Mr Adams continually rejecting the proposition to consider the grants before that period absolutely confirmed: and yet it. is now insisted that all such are confirmed by the treaty. The subsequent negotiation shows that the article, as it now stands, was put into that shape expressly for the purpose of guarding against such construction, and with the understanding, both of Don Onis and Mr Neuville, who acted in his behalf during a part of the negotiation, that the grants'of land dated before as well as after the 24th of January 1818, were annulled, except those upon which settlements had been commenced, the completion of which had-beefi prevented by the circumstances pf Spain and the recent revolutions in Europe. It is unnecessary for me to state more particularly this correspondence; the result, as above stated, will be found fully supported by a reference to the correspondence in the first volume of State Papers, pp. 13, 25, 26, 34, 46, 68, 74, 75. There can be no doubt that such was the understanding of Don O’ Is and Mr De Neuville; and Mr Adams, in a letter to our minister in Spain, whilst the treaty was pending before the king for ratification, states that the reasons why the grants to the duke of Alagon and others were not excluded by name, were: 1, conformably to the desire of Mr Onis to save the honour of the king; and, 2, because from the despatches of Mr Erving it was supposed there were other grants of the same kind, and made under similar circumstances. To have named them might have left room for a presumptive inference in favour of others: the determination was to exclude them all.

That the grant to Arredondo was made under similar circumstances, and liable to the same objections with those to Alagon, Punon Rostro and Vargas, is most manifest. Applications for them all were made within a few months of each other, in the latter part of the year 1817 and beginning of 1818, and no settlements made on either at the date of the treaty: and to consider the treaty as precluding all inquiry into the validity of this grant, appears to me directly in the lace of the very words of the treaty, and most manifestly against the clear understanding of those by whom it was made: and such is the construction given to this article by this court in the case of Foster and Elam v. Neilson, 2 Peters, 314.

The court say the words of the article are, .“ that all the grants of land made before the 24th of January 1818, by his catholic majesty, &c. shall be ratified and confirmed to the persons in possession of 'the lands, to the same extent that the same grants would be valid if the territories had remained upder the dominion of his catholic majesty.” Do these words act directly on the grants so as to give validity to those not otherwise valid, or do they pledge the faith of the United States to pass acts which shall ratify and confirm them? That article does not declare that all the grants made by his catholic majesty before the 24th of January 1818, shall be valid.to the same extent as if the ceded territories had remained under his dominion; and yet this is the very construction sought to be given to it in the present case. It does not say that those grants are hereby confirmed. Had such been its language, it would have acted .directly on the subject, and would have repealed those acts of congress which were repugnan to it.' But its language is, that those grants shall be ratified and confirmed to’ the persons in possession, &c. By whom shall they be ratified and confirmed? This seems to be the language of contract; and if it is, the ratification and confirmation which are promised, must be the act of the legislature.

Until suen act shall oe passed, the court is not at liberty to disregard the existing laws on the subject. . Congress appears to have understood this article as it is understood, by the court. Boards of commissioners have been appointed for East and West Fionda, to receive claims for lands, and on their reports titles to lands, not exceeding acres, have been confirmed to a very large amount.

By the act of the 8th of May 1822, 7th vol. Laws U. S. 104, sec. 4 and 5, concerning claims and titles to land within the territory of Florida, persons claiming title under any patent, gram, concession, or order of survey, dated previous to the 24th day of January 1818, whieh were valid under the Spanish government, or by the law of nations, and which are not-rejected by the treaty ceding the territory, are required to file such claim with the commissioners; and power is given to the commissioners to inquire into the justice and validity of such claims. No patent or grant is exempt from such inquiry: and if they are absolutely confirmed by the treaty, how could the justice and validity of them be subject to the examination of the commissioners?' And the same principle runs through all the laws in relation to these claims. See acts of 1828, p. 60. 7th vol. Laws U. S. 300.

It appears to me,.therefore, that the plain letter of the eighth article of the treaty, the clear and manifest intention of the negotiation, the uniform understanding of congress, and the opinion .f this court, all concur in the construction, that grants, made prior to the 24th of January 1818 are required to be ratified and confirmed to persons in the actual possession of the lands at the date of the treaty, and to be held valid to the same extent only that they would have been binding on the king of Spain; giving to bona fide grantees in such actual possession, and having commenced settlements, but who had been prevented by the late circumstances of the Spanish nation and the revolutions in Europe from fulfilling all the conditions of their grants^ time to complete them.

If, by the true construction of the treaty, the party claiming the benefit of this article must show an actual possession of. the land at the date of the treaty, it becomes necessary -to inquire what that date is. It was co ícluded and signed on the 22d of February 1819, ratified by the king of Spain on the 24th of October 1820, and by the United States on the 19th of February 1821; and the question is, which of these periods is to be taken as the date of the treaty? I think the time the treaty was concluded and signed, must be taken as the date. The contracting parties had in view the state and condition of things at that time, and neither could in good faith change such condition so as to affect any stipulations in the treaty. Any other construction would open the door to fraud and imposition. Suppose the eighth article, instead'of the 24th of January 1818, had said, all grants of land made before the date of the treaty shall be valid; would that have made valid grants issued after the treaty was signed, and before ratified by the United States? No one, it is believed, would contend for this; and if for any purpose the date as fixed by the instrument would govern, it ought in all cases. The rule should be uniform, and not open to be changed for the purpose of meeting particular cases. The date as fixed in the instrument is the only certain period: the time of ratification is altogether uncertain. Changes may take place between the two periods; materially affecting the negotiation, and the ratification may be delayed for the express purpose of acco nplishing some such object.

The true rule on this subject is laid down by Mr Justice Washington, in the case of Hylton v. Brown, 1 Wash. C. C. R. 312; that the treaty, when ratified, relates back to the time of signing. The ratification is nothing more than evidence of the authority under which the minister acted. A government is bound to perform and observe a treaty made by its minister, unless it can be made to appear that he has exceeded his authority. • But a ratification is an acknowledgement that he was authorised to make the treaty; and if so, the nation is bound from the time the treaty is made and signed: and it is worthy of notice, that in all the acts of congress in relation to this treaty it is referred to as of the date of 22d February 1819, the time it was signed; thereby showing the understanding of our own government on .the subject. If this then is to be taken as the date of the treaty, there is no pretence that at that time, or even when ratified by. the king of Spain, any settlement had been made or possession taken of any part of this tract. It is, therefore, in my opinion, a case not coming within the saying provision in the eighth article of the treaty.

But if the time of ratification is assumed as the date of the treaty, no possession of the land had then been taken, within any reasonable construction of the treaty. William H. Hall testifies that he, with two men, by the name of Smith and Lanman, went to Alachua, on the 7th of November 1820, and began to clear some land and erect some buildings. That hd soon after went to St Augustine, where he was taken sick and remained some time. That on returning to Alachua, he found some persons there, employed by Mitchell and Arredondo, who were personally disagreeable to him,- and he abandoned the project and settlement (record 189); and what became of the others does not appear — they must have abandoned also: for, William H. Simmons testifies (record 174, 176), that he was at Alachua in February 1822; saw five or six houses; Wanton was there, and he understood had been upwards of a year. That on his first visit, there was no other person established there but Mr Wanton, and some negroes. So that in February 1822, one year after the ratification of the treaty by the United States, one white man and a few negroes, who, the witness understood, had been there upwards of a year, were the only persons on the land: arid this is claimed to be a possession of nearly three hundred thousand acres of land, within the meaning of a solemn treaty. This view of the case renders it unnecessary for me to enter upon the inquiry respecting the authority of the intendant Ramirez to make the grant in question, or whether the conditions contained in. it have been performed, or in any way dispensed with or discharged.

Upon the whole, I am of opinion that the judgment of the court ought to be reversed.

This cause came on to be heard on the transcript of the record from the superior court for the eastern district of Florida, and was argued by counsel. On consideration whereof, this Court is of opinion that there is no error in so much of the said decree as determines that the claim is ~ralid and ought to be confirmed; and this Court doth affirm so much thereof, and doth decree that the title of the claimants is valid according to the stipulations of the treaty between the United States and, Spain, dated the 22d day of February, Anno Domini 1819, the laws of the United States in relation thereto, the laws of nations, and of Spain. Arid this Court proceeding to render such decree as the said superior court ought to have done, doth finally order, determine and decree, that so much of said decree as directs the land embraced in the grant of.Don Alexandro Ramirez, the intendant of Cuba, to Don Fernando de la Maza Arredondo y Hijo, dated the 22d day of December, Anno Domini 1817, to be laid off “in a square, tract, containing two hundred and eighty-nine thousand six hundred and forty-five and five-sevenths acres of English measurement, the centre thereof being the known spot, monument or marked tree, at or near the house at present the dwelling of Edward M Wanton; said spot, monument or marked tree, to be ascertained by the surveyor, who under the law shall survey the said tract,” be and the same is hereby reversed and annulled. And this Court doth further and finally order,-adjudge and decree, that the said land be laid off in a square form, containing two hundred and eighty-nine thousand six hundred and forty-five and five-sevenths acres, English measure, the centre whereof to be a place known as Alachua, inhabited in other dimes by a tribe of Seminole Indians. And the centre of said place, known as-Alachua, to be considered as the centre of the grant.