rights were recognised in the articles of capitulation, and in the fifth article of the treaty, there is every reason to believe, that there is no ground upon which this principle could be introduced, as that cannot be restored which was never lost by conquest. Further, [ *264] * as the country was ceded to Spain, the enemy, and conqueror, instead of being restored to England, the original owner and nation to whom it belonged, the right of postliminium is taken away, unless the treaty be broken or cancelled. If cancelled or broken, it would be good ground of complaint to be brought by England against Spain; but it is a question in which it is believed the United States could not interfere. They were neither parties nor privies to the war, the capitulation, or treaty, and, as such, can claim no rights, and consequently, have incurred no obligations under them.

From this view of the subject, it is considered that the principle of the jus postliminium could not be made to operate in favour of British subjects; as Florida was ceded away by her, instead of being restored to her, by the treaty of '83. Had it availed any thing, Great Britain would not have provided for those claimants in the treaty, or made them remuneration when they failed to dispose of their lands agreeably to the stipulations of the treaty. Upon examination, it will be found equally evident, that the United States are under no obligations on this occasion. They were not parties or privies to the war. Although Spain was at war with England during the latter part of the American revolution, yet we were not allies, engaged in a common cause, associates in the same contest. There was no treaty of offensive or defensive alliance between them. Conceding this point, however, and it avails nothing; in order that the doctrine of jus postliminium should be introduced with effect, we should have been allies of England, who lost the country by conquest, and to whom it should have been restored either by reconquest or treaty stipulation. American citizens can occupy no better ground than the citizens of Great Britain; and those, we have seen, cannot avail themselves of the right of jus postliminium.

As the right of postliminium no longer exists after the conclusion of a peace, the British claimants are precluded from availing themselves of it by the treaty of '83. This instrument placed these claims entirely upon different grounds; recognised them, and made provision for their disposition, by the subjects of Great Britain, who were inclined to emigrate. The jus postliminium has no bearing upon the subject; but the question is made to turn, exclusively, upon the construction of the treaty.

By the articles of capitulation, signed at Pensacola, in '81, by the commanders of the Spanish and British forces, it was provided, that "the British inhabitants, or those who may have been subjects of the king of Great Britain in the said countries, may retire in full security and liberty, where they shall think proper; and may sell their estates, and remove their effects, as well as their persons; the time limited for their emigration being fixed to the space of

eighteen months." This indulgence was incorporated in the treaty of '83, with the additional provision of extending the time, if necessary. It is contained in the 5th article of the treaty, which was ratified on the third September, 1783, and is as follows: "His catholic majesty agrees, that the British inhabitants, or others who may have been subjects of the king of Great Britain, in the said provinces, may retire in full security and liberty, where they shall think proper, and may sell their estates, and remove their effects, as well as their persons, without being restrained in their emigration, under any pretence whatever, except on account of debts or criminal prosecutions; the term limited for this emigration being fixed to the space of eighteen months, to be computed from the day of the exchange of the ratifications of the present treaty; but if, from the value of the possessions of the English proprietors, they should not be [ *265 ] able to dispose of them within the said term, then his catholic majesty shall grant them a prolongation proportioned to that end." In the year 1785, it is said, a prolongation of four additional months was given by the king of Spain.

Upon the subject of capitulations, Vattel says, "The governor of a town, and the general who besieges it, have a power to settle the terms of capitulation: and whatever agreement they thus form within the terms of their commission, is obligatory on the state or sovereign who has invested them with the power by which they conclude it." B. 2, c. 14, sec. 207. It is no doubt upon this principle that the provision of the article of capitulation, in favour of British claimants, was incorporated in the 5th article of the treaty of '83 and also for the purpose of consummating the arrangements. This was necessary, as Vattel declares that "immoveable possessions, lands, towns, provinces, &c. become the property of the enemy who makes himself master of them; but it is only by the treaty of peace, or the entire submisssion and extinction of the state to which these towns and provinces belong, that the acquisition is completed, and the property becomes stable and perfect." B. 3, c. 19, sec. 197.

In examining the phraseology of the 5th article of the treaty, it appears, that all British claimants were entitled to the indulgence; not only "British Inhabitants," but those "who may have been subjects of the king of Great Britain in the said provinces." Those who were citizens of the United States at the date of the treaty, if they had been subjects of the king of Great Britain in said provinces, were entitled to every indulgence in the disposition of their property. If they failed to avail themselves of those provisions, it is their own neglect, and they cannot but charge themselves with the consequen

ces.

The treaty is to be construed like any other contract; and if the parties have not complied with the conditions, they are compelled to abide the result, or submit to the penalty. Their claims occupy precisely the same ground, however different may be the the character of the claimants. Agreeably to the spirit, at least, of national law, Spain was authorized in requiring such a provision

as that contained in the 5th article of the treaty. "Every state," says Vattel, "has the liberty of granting or refusing to foreigners the power of possessing lands or immoveable property, within her territory. If the sovereign does not permit aliens to possess immoveable property, nobody has a right to complain of such a prohibition; for he may have good reason for acting in this manner: and, as foreigners cannot claim any right in his territories, they ought not to take amiss that he makes use of his power and of his right, in the manner which he thinks most for the advantage of the state." B. 2, c. 8, s. 114. The sovereign may also forbid the entrance of his territories either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. B. 2, c. 7, s. 94. The king of England had likewise the power and right to accede to the stipulations of the 5th article of the treaty of '83. "The necessity of making peace authorizes the sovereign to dispose of the property of individuals; and the eminent domain gives him a right to do it." Vattel, b. 4, c. 2, s. 12. In the treaty of '83, the property of individuals was not ceded away absolutely but only conditionally, where the claimants failed to dispose of it within the limitation.

[ *266] * If Spain refused to extend the time, as contemplated in the 5th article of the treaty, it was a subject of complaint by England against that government. The United States could not interfere in deciding such a question, as it would be an infringement of the independence of the original parties concerned. Vattel, b. 2, c. 4, s. 54; b. 4, c. 4, s. 40; Preliminaries, s. 9. But it was not the fact, that England complained or remonstrated on the occasion. Upon the expiration of the term within which the British claimants were to return and dispose of their property, that government made compensation to her citizens, which was an acknowledgment that she had no complaints or demands against the king of Spain. With this fact before them, it would not become the American government to interpose in the contracts of other sovereign powers, and declare that either had failed in compliance.

Most sovereign states have adopted, in some shape or other, the principle contained in the 5th article of the treaty, in order to prevent foreigners from owning real property within their limits, and thereby obtaining an influence which might be wielded to the injury of the country. It was no doubt principally from this consideration that the 5th article of the treaty was framed and incorporated in that instrument. In effect it required "the British inhabitants, or the others who may have been subjects of the king of Great Britain in the said provinces," either to remain in Florida, as citizens of Spain, or to dispose of their property within the limitation. From the language of the articles, they appear to have had their election; and it is believed that, where they failed to avail themselves of the indulgence secured by this provision of the treaty, or to obtain the confirmation of the Spanish authorities, which was equivalent to a release, the lands were considered vacant, and subject to forfeiture.

Similar provisions are contained in the treaty of 1763, which are found in the proclamation of General Gage, bearing date 30th December, 1764, addressed to the inhabitants of Illinois and Vincennes, respecting their lands, upon taking possession of their country by the troops of his Britannic majesty. In Siera's case, Governor O'Neal declares, that the time had expired within which British claimants were to return and dispose of their property, and it was understood that it was regranted whenever applications were made to that effect. The 8th section of the act of Congress, passed the 30th of March, 1803, making provisions for the disposal of lands of the United States south of the state of Tennessee, and the 1st section of the act passed 5th July, 1812, upon the same subject, expressly recognise the fact of Spain having regranted lands originally granted by the British authorities in West Florida. The board of royal treasury, by a decree, dated 24th of September, 1801, at New Orleans, which was founded upon official proceedings instituted to ascertain the buildings and lots in Pensacola to which the king of Spain was entitled by conquest, and from absolute relinquishment of the same by proprietary owners, exposed those houses and lots to sale at public auction. Whenever they were presented, after a limited period, they were either confirmed or declared to be forfeited by the Spanish authorities. It was the policy of the Spanish government to have their land settled and cultivated: foreigners were, as far as possible, excluded, unless they were catholics. In their concessions, the petitioner was requested to take an oath, that no foreigner was interested in the land solicited, and that he or she should not convey to such at a subsequent period. * A difference of religion [ *267] was not to be tolerated. Such was the effect of these regulations, that most of the English removed from Florida, particularly from East Florida, after the treaty of '83.

These facts combined, are conclusive as to the opinion entertained by the Spanish authorities, in relation to the validity of such claims. Had those now under consideration been brought into controversy before the Spanish tribunals, anterior to the cession of the country to the United States, there can be no hesitation in believing that they would have been declared null and void. The British claimants have not attempted to make out a valid title under the Spanish government, or to show that the Spanish tribunals would have considered their claims valid and correct. They are, no doubt, satisfied of their weakness upon this ground, and it accounts for those claims being permitted to lie dormant, in the hands of the proprietors, for upwards of forty years. During this period, no notice was given of their existence; many were unlocated, and none in actual occupation of the proprietors. The king of England's proclamation, bearing date 7th of October, 1763, by which the governments of East and West Florida are created, vests the governors with the power to grant and dispose of lands "to any such person or persons, upon such terms, and under moderate quit rents, services and acknowledgments, as have been appointed and

settled in other colonies, and under such conditions as shall appear to us to be necessary and expedient, for the advantage of the grantees, and the improvement and settlement of our said colonies." The governors were authorized to grant lands to new settlers, and to reduced officers of the army and navy, in the following proportions: To any person having the rank of a field officer, 5,000 acres; to any captain, 3,000 acres; to any subaltern, or staff officer, 2,000 acres; to any non-commissioned officer, 200 acres; to any private man, 60 acres. No limits, except that of the advantage of the person, and the improvement and settlement of the colonies, are imposed upon grants to new settlers; but the proclamation expressly declares, that all these grants are subject to the same conditions of cultivation and improvement. Further, no plat is filed, in some cases, to show that they ever were surveyed; and the warrants, which require upon the face of them that they should be located in six months from the time at which they were issued, are entirely floating claims. No evidence either has been presented to show that the condition subsequent upon which the perfect grants were made, have ever been fulfilled. This alone, agreeably to Blackstone, renders the claims at least voidable, and may be declared void by the commissioners. Under such circumstances, we do not believe they would be recognised as possessing any validity under the laws of England-the government from whence they emanated.

*

Whether the British claims are, ipso facto, void or only voidable, the United States are entitled to the right and immunities of Spain, by a transfer of the sovereignty and domain of Florida, under the treaty of 22d of February, 1819. Admitting that they are only voidable, the United States, and their tribunals can declare them void, as did the Spanish authorities. If Spain could regrant them, and sell them at public auction, the United States, as the successor of Spain, are entitled to all the advantages resulting from a similar disposition of the property. As Spain, in her practical construction of the treaty, has viewed those claims as subject to forfeiture, whenever they have not been regranted, or confirmed by her legal authorities, they must be vacant, and consequently, belong to the [ *268] public domain. The doctrine of prescription, as a bar to such claims, as well as the plea attributing their want of location, and compliance with conditions to the peculiar situation of the country, are also superfluous, as it is admitting claims to exist which have been forfeited. The partidas, as cited upon the subject of appeals from the judgments of Spanish tribunals, is equally far from being in point, as it could only apply between parties and privies within their legal jurisdiction. Under no circumstances would this law, and the doctrine of prescription, avail the claimants any thing against the government, however effectual they might be in a private controversy. Neither can they derive any advantage from a non-compliance with the 5th article of the treaty, unless they can also show that they have received a confirmation or con