their grants, by the recent circumstances of the Spanish monarchy, and the revolutions in Europe.

The inhabitants of the ceded territory were protected in all their rights, and became citizens of the United States. (Articles 5th and 6th.)

Congress has, from time to time, adopted various legislative provisions for the purpose of preserving the national faith, separating private property from the public domain, and securing the individual titles intended to be protected by the treaty.

Commissioners were appointed to examine land claims, with authority to confirm grants not exceeding a certain size, and to report those above that limit to congress. When these commissions were dissolved, similar powers were vested in the register and receiver of the land offices. In some instances, an option was given to the holders of certain grants to select a league square within their respective concessions, upon condition of surrendering the residue by deed to the United States. Through these and other means, the titles of the smaller proprietors have, for the most part, been definitively adjusted, and the larger claims alone remain for settlement. These, congress, by act of 23d May, 1828, authorized the courts of the territory to hear and determine, with an appeal to the supreme court of the United States. Several cases have been adjudicated in the courts below. Decisions have been pronounced, not easily reconcileable, if not at total variance with each other: appeals have been taken, and the questions discussed are now before this court, whose judgment is deeply interesting, not merely to the parties on the record, but to the numerous other suitors whose rights, or supposed rights, depend on similar principles.

One or two considerations of a general nature may here, it is presumed, be not inappropriately introduced. Those who represent the interests of the United States in some of the cases before the court have thought proper to assume, as one ground of defence, that the confirmation or rejection of these titles is matter essentially of executive or legislative cognizance, and addresses itself exclusively to their discretion. The question they urge is a political, not a judicial one, and is equally unfit to be submitted to, and incapable of being decided by, a court. Waiving all considerations of the hardship and mockery of referring claimants under a treaty to a tribunal incompetent to afford them redress, forbearing to touch on the indecorum of a construction which attributes to congress an act of futile or deceptive legislation, it will be enough to say that this interpretation, it is believed, has been once considered and rejected. (Soulard's case, 4 Peters.)

The argument, indeed, amounts to little more than this-we have bound ourselves to do what Spain would have done, what that is, we know not; and having referred the question to those who cannot decide it, we will therefore do nothing. Perfidy often wears the mask of subtlety, as well from shame as cowardice; but it is

seldom that the counsellors of bad faith, if they condescend to argue at all, are satisfied with a defence so feeble.

The act of congress requires the court to examine and decide upon these claims in conformity with the law of nations, the treaty and the laws of Spain.

It is proposed to consider the subject in reference to each of these several rules of decision.

First. THE LAW OF NATIONS.

It is conceived that, according to the mitigated rights of war, as now well understood and settled by international law, the lands of individuals are safe even after conquest; (Vattel, b. III. c. 13, sec. 200;) much less can a cession, of itself, destroy private rights. Absolute or perfect grants, it is believed would be protected by the law of nations, independent of the treaty. Some legislative recognition of their validity might indeed be necessary to sustain a suit upon them in our courts, but the national obligation to respect them could hardly be denied. It is in behalf of concessions or inchoate grants that the stipulations of the treaty were most requisite and important. To the acts of the Spanish government in this respect, not merely the authority of res adjudicata, such as belongs to all foreign sentences and decrees, was given by the treaty: its effect was to make binding on us all that would have been valid against Spain, and to oblige us to complete whatever she, in good faith, had begun, but left unfinished.

A detailed statement of the maxims of customary international law, as they would bear upon the rights of proprietors of land in Florida, is not called for in the presence of an express treaty stipu lation; and, in referring to the law of nations as a rule of decision for the courts, congress, perhaps, had more expressly in view such part of it as relates to the interpretation of treaties. This will be more conveniently considered under another head.

Secondly. THE TREATY.

This instrument it is contended, should be most liberally construed. Its interpretation is to be sought in the motives and policy of the parties: in their words and in their acts. The leading objects of the United States were to procure a more convenient and secure frontier; to command the gulf of Mexico, the outlet of a large portion of their commerce; to obtain indemnity for their merchants, and to secure themselves against the annoyance they must naturally expect from Florida, in the hands of an enemy or a false and feeble neutral. It is notorious that, for more than a century, this territory had been a constant source of injury, jealousy, and vexation to the adjoining colonies and states. The colony of Georgia was founded as a barrier against the encroachments of the Spaniards; and the refuge and encouragement afforded by the latter to absconding slaves, hostile Indians, and other incendiaries, was a continued cause of complaint, from the settlement of Carolina to the Seminole campaign. In examining the interests and duties of the United States in connexion with this subject, it is not as landed proprietors alone

that we must regard them. The rage for new settlements, indeed, makes this the chief point among the people, and greatly increases the prejudices against the large grants; but the court is far above the contagion of their example.

To consider the cession of Florida merely as a land-jobbing transaction, would be doing great injustice to the liberal and enlightened policy which sought this valuable acquisition, with steady calmness, through so long a course of evasion and delay. Yet its value, even in that point of view, is not unworthy of notice. Thirty five millions and a half of acres, of which, up to the 30th of June, 1828, but little more than a million and a half had been granted or sold, (Reports of Committees, H. R. No. 95, 2d session 20th Congress,) will surely, after making a most liberal allowance for the satisfaction of unsettled land claims, more than refund to us the five millions paid to our own merchants. Computing but thirty millions at the minimum price to which it is proposed to reduce the refuse lands, the United States will receive back their principal from the soil, and obtain the sovereignty for nothing.

It is admitted that, in the cession of a province, the disposition of the inhabitants and their effects is a question of policy between the parties. To divest them of their rights of property is, however, in modern times, an unheard of cruelty. Usually the option is allowed them of becoming subjects of the new government, or of selling their estates, and removing within a specified period. Such were the terms of cession of this very province from Spain to Britain in 1763, and from Britain to Spain twenty years afterwards. It will be borne in mind by the court that population rather than soil is the want of the United States; that their policy as to naturalization is as liberal as that which the wisest modern philosopher has praised in the greatest of the ancient republics; and that sovereignty not soil, was the great motive for the acquisition.

Our government it may safely be affirmed, neither contemplated the expulsion of the ancient inhabitants, or any injury to their property. The terms held out in the treaty ceding Louisiana, as well as that by which Florida was acquired, show that the United States never intended to grasp a barren sceptre, and wave it over a dispeopled territory. The inhabitants were made citizens. The province was to become a state. Can it be imagined that any rational government would act so unwisely as to receive into their society a large body of foreigners, endow them with civil rights and political power, and, after rendering them disaffected, by stripping them of their property, leave to these malcontents the protection of an extensive, important and exposed frontier?

Many of the motives which must have operated on Spain are equally obvious. She naturally wished to extinguish demands, the justice of which had been admitted, while their satisfaction had been evaded until all the arts of procrastination were exhausted. She might desire to get rid of a useless and expensive appendage; and she must have foreseen that it would probably be wrested from

her as an indemnity, if she trifled much longer with our patience. But, in yielding up the inhabitants with the territory, she would naturally stipulate most favourably for the people she was about to surrender. She did not intend to sacrifice them. Their fidelity to her in every vicissitude, the temptations by which they had been assailed, the invasions to which they had been exposed, their sufferings, their constancy, their very helplessness, all pleaded powerfully in their favour.

In the 8th article, two parties were stipulating for the security and advantage of a third, whom both had the strongest reasons to cherish and protect. It is submitted, therefore, with some degree of confidence, that, so far as the motives and policy of the parties afford a key to the meaning of their words, the construction most favourable to the claimants is permitted to, nay, is enjoined upon the court.

Before proceeding to examine the language of the treaty, a few observations on the rules of interpretation may, perhaps, be pardoned. Jurists generally admit that all grants, contracts, and stipulations, are to be taken most strongly against the grantor. (Cooper's Justinian, in note 601.) The words of the party promising are to be regarded rather than those of the party to whom the promise is made. (Vattel, b. II. c. 17, sec. 267.) Other general rules are to be found in the works of the most esteemed publicists, and must be familiar to the court. (Grotius, b. II. ch. 16, p. 136. Vattel, b. II. c. 17, sec. 270.) Among the rest, that interpretation which is drawn from the reason of the act is strongly and safely recommended. (Vattel, b. II. c. 17, sec. 287.) A special rule of construction has, moreover, been duduced from the character of the stipulation itself. Hence the distinction between things favourable and things odious—a distinction recognised by Grotius and Vattel. (Grotius, b. II. c. 16, sec. 10, p. 148. Vattel, b. II. c. 17, sec. 300, 301, 303.) The difference between the former and mere acts of liberality prejudicial to the sovereign, is illustrated by the last named author (Vattel, b. II. c. 17, sec. 310,) in such a manner as leaves no doubt to which class the provisions of the eighth article belong.

What, indeed, can be more clearly entitled to rank among things favourable, than engagements between nations securing the private property of faithful subjects, honestly acquired under a government which is on the eve of relinquishing their allegiance, and confided to the pledged protection of that country which is about to receive them as citizens?

This brings us to the words of the treaty. There is a difference between the English and the Spanish versions of the eighth article. Both are equally originals, but surely the justice and liberality of the United States will extend to the claimants the full benefit of either. The first difference is in rendering "concesiones de terrenos" as "grants of land." Concesiones, it is apprehended, is a term much broader than grants, and comprehends all which we, in the technical language of our land laws, might call entries or warrants

of survey or location. The substitution of lawful, in the English, for legitimos, in the Spanish, will be commented on in another place. The residue of the clause, that those grants shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid, &c., is by no means equivalent to the Spanish phraseology. The latter, fairly rendered, is to this effect: "All concessions of lands made by his catholic majesty, or by his legitimate authorities, before the 24th January, 1818, in the aforesaid territories, which his majesty cedes to the United States, shall remain confirmed and acknowledged to the persons in possession of them, (i. e. the concessions,) in the same manner that they would have been if the dominion of his catholic majesty over these territories had continued."

The difference between declaring that these grants shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would have been valid, &c., and saying that all concessions of land shall remain confirmed and acknowledged to the persons in possession of them (i. e. the title papers) in the same manner that they would have been, &c., is sufficiently obvious and important. The sense is materially different. The English side of the treaty leaves the ratification of the grants executory-they shall be ratified; the Spanish, executed-they shall continue acknowledged and confirmed, quedaran ratificados. Quedan signifies remain or continue, and in this sense is used in the last clause of the same article; quedan anuladas y de ningun valor, remain null and of no effect. In the English, possession refers to the lands; in the Spanish, to the grants. The relative ellas agrees with the antecedent concesiones; if it referred to terrenos, the relative would have been ellos. No word equivalent to recent is to be found in the Spanish.

It has been supposed, with little reason, that the eighth article might be interpreted to confer a discretion, rather than impose an obligation, on the American government. It is one of the admitted rules of construction, that interpretations which lead to an absurdity, or render an act null, are to be avoided. Vattel, b. II. c. 17, sec. 282, 304.

The king of Spain can annul a grant made by himself without any allegation of surprise or fraud, simply in virtue of his absolute will and sovereign power. It is too late for us to deny that position; we have recognised it by the treaty. The grants to Alagon, Vargas, and Puñon Rostro were annulled. By the treaty we succeeded to all the rights of Spain; the concessions made by Spain are to continue valid to the same extent, &c. ; but will it be asserted that, in succeeding to the rights of Spain, we succeed to the right of his catholic majesty to annul the grants of his subjects? Can it be pretended that the provisions of the eighth article were designed only to leave all grants, perfect and inchoate, as completely at the mercy of the American government as they had been at that of the Spanish monarch?

In attempting to ascertain the true meaning of the parties, it is VOL. II.

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