Mitchel and Others v. United StatesMitchel and Others v. United States
the opinion of the Court;
The land in controversy is claimed by the United States, in virtue of the treaty of cession by Spain, by which .the territory and sovereignty of the two Floridas were acquired,' in consideration of 5,000,000 dollars, paid in extinguishment . of certain claims of- the citizens'of the United' States' on the-government of. Spain. Colin Mitchel claims, by-deeds from" various tribes of Indians belonging to- the great Creek confederacy, to Panton, Leslie & Co;,'to.John Forbes & Co., and to John Forbes, confirmed by the- local authorities of Spain, whose right has' become vested in him by sundry mesne conveyances, 'to which it is unnecessary ■ to refer, as the regular deraignment of Whatever title was vested in the original grantees to the present claimants is not'questioned. (Recofd .362.) The lands are in four .separate tracts, extending from the-mouth of the river St Mark’s, outside of. the isjands along the sea. coast, to the west end of St Vincent’s island, west of the mouth.of the rivér Appalachicóla; thence to that river about five miles from its mouth, up the same for many miles ; thence by a back line-.to a point on the western bank of the St Mark’s above the old fort of that name, and down the said river to the sea. It iá unnecessary to refer to the boundaries of the separate tracts, or the particular designation of the lines and points of the whole body of lands, as they are not a subject of controversy in this case; the quantity, as estimated by the claimant, is one million two hundred and fifty thousand acres (Record 5.);' and by the Spanish officers, one million three hundred' and ninety-one thousand arpents. (Record 224.) The history of the claim is this.
This house conducted-its affairs to the entire satisfaction of the successive govcrnors-general of Louisiana (Record 120— 129) and the local authorities of the Floridas, rendered important services to the crown, met with many and great losses, amounting, by the estimate of the marquis óf Casa Calvo, then , governor-general of Louisiana, in 1800, to 400,000 dollars. (Record 125,136, 147, 148.) Five of- his predecessors had recommended the. awarding some indemnity to the house; they had .made repeated claims upon the. crown, the justice of which had been acknowledged by all the local authorities during all the changes of administration (Record 121, 122, 132, 133, 134), in their numerous despatches .to the ministry, which had been submitted to the king. (Record 130, 374.) They concurred'in representing to the king the great-importance and services of the house as a political instrument of the government-; that-they had a right to-indemnity from the king; that the'situation of the house was-such, that they must sink under their losses if it was not afforded ; and that it must be sustained and preserved as indispensable to- retain any control'over the Indians, and’.sécufe lhe possession of the provinces entrusted to their care. (Record-130, 139, 143 — 152, 151, 252 — 257, 302, ASO.)
. In consequence of .the repeated solicitations of the house to the king for compensation, a royal order was .directed to. the captain-generаl of-Cuba on. the subject of the indemnities proper lo be given them; in reply to which, among other propon sitions made by-the governór-general of Louisiana, was a grant
Amongi the losses sústained by. the house, was: a large amount due by the Seminole Indians prior to 1800 ; and for robberies of their stores in 1792 and Í800, by members of that tribe, headed by the celebrated adventurer Bowles, exceeding in all 60,000 dollars (Record 22 — 28); of which they were unable, to procure any payment from the Indians, but who-had expressed a willingness.to make compensation by agrant of their lands.
Early in 1799 the house made an application-to the governor-general, of Louisiana for leave to purchase from the Indians as much land as would satisfy the above claims, which 'was favourably received by both him and his successor. (Record 54, 56.) Negotiation with the Indians was followed by a deed of cession from them, in 1804, of. the large tract containing' one million two hundred thousand arpents, (Record 554.)
This deed was confirmed at a general council of the nation and its chiefs held at Pensacola in 1806, in the presence of Folch, governor of West Florida'(Record 568, 584, 590, 614), in all the. form and solemnity which Indians could give it.. This governor had previously given leave to make'the purchase on a petition presented to him by the house in January 180.4, setting forth the circumstances of the case; which was granted on only one condition, that they should not dispose of the lands without notice to and knowledge of the government; and in December 1806, gave his full confirmation to the grant.óf the Indians made to Panton, Leslie & Co. (Record 58, 84.) Another application was made to the same governor in 1807, for his permission to make ah additional purchase, from the same Indians, which was' granted in December 1810, on condition that the house should cede the whole or part of the lands to the king, if he should want them, at'the price at which they acquired them, and not dispose of them without notice to the government.. (Record 273, 274, -275.) In the following
Those of the Indians recite the considerations which led to the grants, convey the lands with a warranty of their title by ascertained boundaries (Record 39, 40, 49, 91, 95, 86, 93, 69, 82 — 84, 29 — 36, 59, 63, 95 — 108, 562); those of the governor ratify and confirm the grants in full and direct dominion (Record 37, 49, 91, 95, 111) and in full property, put the grantees in possession, and promise to defend and maintain it, (Record 106, 137, 145) all of which he declares is done by using the powers vested in him. (Record 75 — 91,30—37, 99,233,234.) They are drawn up in great form; contain a perfect recognition of the Indian-grants, and’ give to them all the validity which he could impart to them. (Record 106, 131, 175, 191, 193.) They are made in the name’of the king, executed and attested in all due formality; and their authenticity proved, as public documents, and by the testimony of witnesses to the ofBcial signatures. (Record 562,579, 615, 620, 623, 646, 611, 612, 613 — 626). The claims of the house upon the Indians
Iii-opposition'to this mass of documentary and parol testimony, in support of the allegations of the petitioners, that the grants were in fact made and confirmed, in the manner, and for the reasons and considerations set forth, no direct evidence appears in the record. Some of the witnesses.were examined as to the supposed influence of the house with governor Folch, but the imputation was negatived, and the proceedings through-' Out declared to have been in good faith. (Record 554 — 583.)
So far then as the merits of the case depend on the genuineness of "the- deeds and docunients, the facts of the grants and confirmatiоns by the Indians and governor, , the marking the lines and possession of the land, the good faith of the whole
There is, however, one subject which was considered by him, into which we do not feel at liberty to inquire, which is the-.water-mark in the paper on which the governor’s permission of the 7th of January 1804, was written, noticed and commented on, at large by the judge. (Record 706.) This objection was not made in the court, below, at the hearing, or in the argument, so that no opportunity was afforded to the petitioner tp produce any evidence on the subject, or to his counsel to answer the objection. This court also refused to grant him a commission to take testimony to explain and-account for the water-mark, or permit him to read the ex parte evidence offered to explain it; because in an appellate court no new evi7 dence could be taken or received without violating the best established rules of evidenсe and law. Under such circumstances, it would be dealirg to the petitioner a measure- of justice incompatible wi.th every principle of equity, to visit upon his title an objection which he was not bound to anticipate in the court below7, which he-could not meet there, and which this court were.- compelled to refuse him the means of removing by "evidence. We will not say what course would have been taken if* his title had depended on the date of the paper alluded to; as the case is, it is only one of numerous undisputed documents tending to establish the grant, the validity of which is but little, if it could be in any degree affected by the date of the permission.
It is objected by the counsel of the United States, that the
It is,objected, tjiat the’deeds of 1804 and Í806, to Panton,• Leslie & Co. were inoperative to pass the lands, they haying died previously.
It is in proof as a fact that Forbes & Co. were the successors in business ancf interest to Panton &_Co. This change of the name and partners of the house after the death of Mr Pan-ton was known to the officers of the local government and the king; who b’y a roy.al order in 180.5, (Record 262). and another in 1807, (Record 270) directed that it. should have no effect on their privileges. To the king it'mattered not whether the lands were conveyed to the house-as a firm, or to tlie partners nomination they, it seems, preferred considering the lands as a part of the general-effects-of the partnership, and received ■the deeds accordingly ; as it concétned only (hem,¿ind as there • has been produced no law of Spain invalidating such a grant, the objection cannot be sustained.
Another objection^ on account of ah oath of allegiance not.
It is objected that the grant of 1811 is invalid, because.it comprehends the fort of St Mark’s, then actually occupied by the troops of the king. It is in full proof that.the site of St Marks and the adjacent country was within the territory claimed by the Seminole Indians (Record 12, 131, 603 — 607, 618.). It is not certain, from the evidence, whether it was pur-, chased from the Indians, or merely occupied by their permission : there seems to be no written evidence of the purchase,, but no witness asserts that possession was taken adversely to the Indian claim, and it is clearly proved to have been amica‘bly done. (Record 232, 306, 581.) Whether the Indians hаd a right to grant this particular spot then or not, cannot affect the validity of the deeds to the residue of the lands conveyed in 1811. The grant is good, so far as it interfered with no prior right of the crown, according to the principles settled by this court in numerous cases arising on grants by North Carolina and Georgia, extending partly over the Indian boundary, which have uniformly been held good, as to whatever land was within the line established between the state and the Indian territory. Wear v. Danforth,
Another objection is of a more general nature, that the grantees did not acquire a legal title to the lands in question. But it must be remembered, that the acts of congress submit these claims to our adjudication as a court of equity ; and, as often and uniformly construed in its repeated, decisions, confer the same jurisdiction over imperfect, inchoate and inceptive titles as legal and perfect ones, and require us to decide by the same rules on all claims submitted to us, whether legal or equit- ’ able.
Whether, therefore, the title in the present case partakes of the one character or • the other, it remains only for us to inquire whether that of the petitioner is such in our opinion that
In doing so, we shall not take a detailed review of the leading cases on Spanish grants already decided by this court, in relation to those lands which formed a part of the royal domain, in contradistinction to those which may be considered as Indian lands claimed by Indians, by their title, whatever it may be. Those comprehended within the claim of the petitioners being. of the latter description, as they contend and thereupon rest their title, if will suffice to state some general results of former adjudications which are applicable to this case, are definitively settled, so far as the power of this court can do it, and must be taken to be the rules of its judgment. They are these :
That by the law of nations, the inhabitants, citizens, or subjects of a conquered or ceded country, territory, or province, retain all the rights of property which have not been taken from them by the orders of the conqueror,, or the laws of the sovereign who acquires it by cession, and remain under their former laws until theyshall be changed.
That a treaty of cession was a deed or grant by one sovereign to another,-which transferred nothing to which he had no right of' property, and only such right as he owned and could convey to the grantee. That by the treaty with Spain the United States acquired no lands in Florida to which any person had lawfully obtained such a right by a perfect or inchoate title, that’ this court could consider
it' as properly
under the second article, or which had, according to the stipulations of the eighth, been granted by the lawful authorities of the king; which words
grants
or
concessions
were to be construed in their broadest sense, so as to comprehend all lawful acts which operated to transfer a right of property, perfect or imperfect.
That the effect of the clauses of confirmation of grants made was that .they confirm them presently-on the ratification of the treaty, to those in
possession
of the lands, which was declared
That the United States by accepting' terms of the eighth article, and the ratification by the king, with an exception of the three annulled grants to Allegon, Punon Rostro, and Bargas, can make no other exceptions of grants, made by the lawful-authorities of the king.
That the meaning of the words •
lawful authorities
in the' eighth atticle, or
competent authorities
in the. ratification, must, be taken to be
“ by
those persons who exercised the granting power by the authority of the crown.” That the eighth
o'
tide expressly recognizes the existence of these lawful autl «litres in the ceded territories, designating, the governor or iniendant, as the case might be, as invested with such authority, which is to bé deemed competent till- the contrary is made to appear..
That “by the laws of Spain” is to be understood the will of the king expressed in his orders, or by his authority, evidenced by the acts themselves, or by such usages and customs in the' province as may be presumed, to have emanated from the king, or to have been sanctioned by.him, as existing authorized local. laws.
In addition to the established principles heretofore laid down by this court as to the legal effect of an usage or custom, there is one which is peculiarly appropriate to this case. The act of congress giving jurisdiction to this court to adjudicate on these causes, contains this clause in reference to giants, &c., “which was protected and secured by the treaty, and which might have been perfected into a complete title, under and in conformity tо the laws,
usages
and
customs
of the government under which the seme originated.”
This is an express recognition of any known and established usage or custom in the Spanish provinces, in relation to the grants of land and the title thereto, which brings them within a well established rule of law. That a custom or usage saved
In taking possession of Florida pursuant to'the treaty, and in establishing a government in and over it, congress have acted on. the same principles as those which were adopted by this' court in the former cases. In the act of 1821, for carrying the treaty into-execution, congress authorizes the vesting the whole power of government in such person as the president may direct for the maintaining the inhabitants in the free enjoyment of their property. Pamphlet Laws.47.
The governor thus appointed, by his proclamation in' the same year,- announces to the inhabitants that he has beett invested with all the powers, and charged with' all the duties heretofore held and exercised by the captain-general and of the jntendant of the island of Cuba over the Floridas; and the governor thereof.; recites the foregoing act of congress, declares that they shall be maintained and protected in the free enjoy-merit of their property, &c., and that all laws and municipal regulations, which were in existence at the cessation of the late government remain in full force. Pamphlet of 1822,113.
■ The tenth section of the act of 1822 contains the same pledge for' the prоtection of property, and the thirteenth continued in force the existing laws, till altered by the local legislature then organized. Pamphlet 15.
The'formal act of the surrender of the Floridas by Spain to the United States was made by the commandants of both of the provinces, by the authority, of the captain-general of Cuba under a royal order. Pamphlet 110.
These are most solemn acts of both governments, which, as the. proceedings under the treaty of cession, are made a rule for our guide in deciding on the validity of the title to lands in the provinces; they have all been ratified and approved by the king and congress, affording the highest possible evidence of the True meaning of both the high contracting parties to the treaty. They point directly to the kind of government
Colin Mitchel claims the land in controversy as a purchaser •fiom Panton, Leslie . & Co., .John Forbes & Co., and John Forbes, who were purchasers from the Seminole or Tallapoosa Indians, bona fide, for a valuable consideration paid by one party, and received by the other by force or contract, accompanied with the legal seisin and .possession of the whole, and actual
pedispossessio
of a part, under a claim of right and title to the whole by grant. The equity of the parties from whom Mitchel purchased commenced in 1789. 1790, 1795, when the depredations were first committed and the debts contracted which formed the consideration of the Indian deeds, the debts increasing till 1800, and the depredations then renewed. A claim early made on the Indians for compensation and on the ' government of Spain lor indemnity, continued, till an agreement for the '-.ssion of lands by the former was made in 1800, andxavned into effect in 1804 and 1808; when it was carried into grant, ratified and confirmed by ihe Indians, the governor of West Florida, and captain-general of Cuba, without an interfering claim till the cession to the United States in 1820, 1821. On the other hand, the United States claim the land
Thus viewing the contending parties, we proceed as a court of equity to inquire, whether at the time the cession by the treaty took effect in favour of the United States there was a right of property in Colin Mitchel to the lands included in his grants, or whether they had been previously granted- by the lawful authorities of the king. That they were granted in fact is incontestable; and they were private property, if there, was a grant competent by law to vest a title.
It is contended by the United States that theacts of governor ' Folch, in the permissions to purchase from the Indians, and the ratifying and confirming their deeds, are void, as the lands were not in West Florida, over which province alone he had any jurisdiction.
There seems no doubt that under the British government the river Appalachicola remained the boundary between East and West Florida, as it was so established by the,proclamation of the king in 1763. (I Laws U. S. 444), but it does not appear that Spain had adopted it in administering the government of •those provinces by any royal order, or that such was a common opinion of the inhabitants ("Record 602 to-.604): 'on the contrary, it appears that so early as 1785, Don Galvez, then governor-general of Louisiana, .considered tire- district of St Mark’s' de Appalachy as a dependency of his government, and in 1686 placed it tinder care of the government of West. Florida, and ordevéd the establishment of a post there by a de-" Uichmcnt' from the garrison of Pensacola, which acts were approved by a royal order in March 1787 (Record 306, 197). Thésc orders were acquiesced in by the governor of East Florida,.who appears to have exercised no jurisdiction within that
. But evidence of the fact still more conclusive, and its most, solemn recognition, by both governments, is to be found in the formal act of surrendering the. sovereignty and possession of the province by Spain to the United Sítales. The governor of West Florida “ placed the commissioner of the United States in possession of the country; territories and dependencies of West Florida,' including the fortress tíf St Mark’s, with the adjacent islands, dependent on said province.” (White 198; Pamphlet Laws 112.) So it was accepted and is yet held by the United States, and so we. must consider it as understood by congress in the various laws passed since- the cession, and the proceedings therein authorized-under the treaty in reference to East and West Florida. . The boundary between them must b¿ taken to be that which existed under Spain from 1785 till' 1821, as incontestably proved, and most solemnly admitted by the United States, up to which the powers of the governor of West Florida, whatever they might be, could be exercised in their plenitude, both as a government de facto and a government de jure.
. It becomes needless to inquire whether; after these solemn acts, it is competent for the United Stаtes to now contest the existence of such boundary ; it suffices for this case, that it is. abundantly established by all the evidence, which is uncontra-dicted, and that the lands in controversy are situated within West Florida, according to the boundaries recognised by both
But the reverse is, we think, equally apparent as to Indian1 lands, until their right had been abandoned, and the land be- , come annexed to the royal domain by a process in the nature of an office at common law. (White 25, 40, 42, 79, 43, 47, 2- 5.) The relations between the Indians and the government of Spain, were considered as matters of the deepest political concern, in nowise connected with its fiscal operations; the commerce with. the Indians was, as a political instrument, entrusted exclusively to the governors, as clearly appears by their correspondence with each. other, the. captain-general of Cuba, and the ministry in the mother country, and regulated by royal orders. (Record 113 — 153)' with which the intendancy had nothing to do. (Record 151, 571, 579, 536,587,590 ; White 32.) •
It was a part of the governor’s oath, as prescribed by. the laws of thelndies, “ that you shall take care of the Welfare, increase and protection of the Indians.” (Record 237.) -He was their protector, whose duty it was to-examine whether claims upon them were weil founded, and ifso, contribute by all possible means to their being paid, (Record 587) but not to lend his sanction, or allow thе smallest injury to be done to them, (Record 571, 232.) The fact of the supervision of Indian sales of their land by the governors-of provinces and commandants of posts, in acts of confirmation and putting the pur- . chasers in possession, is very clearly-established by- the report of the land commissioners of the United Slates in Louisiana. (Record 325 — 333.) It was exercised by.Don Galvez, governor general of Louisiana, as early at least as 1.777, in confirming an Indian sale of the great Houma tract on the Mississippi-(1 Laws U. S. 551, 552, 554).; and there is no evidence that this power was ever entrusted to or conferred on any other officer, nor that it was ever exercised by any other..
It was an authority expressly delegated to them by the laws, (White 232 — 234) and so reported'by the commissioners (Re
Thе confirmation of similar grants made by acts of congress, or by boards of commissioners acting under their authority, are also powerful evidence of the lawful exercise of the authority of these officers; and being proceedings under the treaty and laws, they are made a rule .by which among others we may adjudicate on the claims of the present parlies, in doing which we cannot sustain this objection without overlooking such a concurrence of evidence of various descriptions, as leaves no reasonable cause of a doubt of the authority of governor Folch; especially when we connect with his first permission to make the purchase of 1804, the condition attached to it, that the lands should not be disposed of without the giving notice to and knowledge of the government; and to that of 1811, that it should be conveyed to the king, if required, at the price at which it was purchased, and the mode in which tliat-condition was performed and released.
Pursuant to these conditions, John Fotbes- applied to the captain-general of Cuba, in 1817, for permission to sell the land to the petitioner, which being referred to the assessor-general for his advice, he reported that the landsjiad been transmitted actually and lawfully in full property-to Mr Forbes, with a conditional title, or “ titulo oneroso,” for which acquisition competent permission was given by governor Folch, who
The report of the assessor-general s’eems to have been acted. on as an inquisition at .common law, finding that there was no obstacle to the making use of the powers entrusted to the captain-generál. We should feel it to be an assumption of much responsibility to declare thaton the evidence in this record, and the law- arising upon it, that either of the officers referred to usurped powers not yested in them, or exercised them against or without the authority ofi.the king.
The counsel of the United States pressed in argument the decision of this court in the case of Arredondo, as an affirmance of the right of the ■ intendant of the province, or of Cuba, to grant Indian lands. In that case the lands granted had been in the possession and occupation of thé Allachua Indians, and the centre of the tract was an Indian town of that name. But the land had been abandoned, and before any grant was made by the intendant a report was made by the attorney and surveyor-general on a referеnce to them, finding the fact of abandonment., on which it was decreed that the land had reverted to and become annexed to the royal domain.
The UnitedjStates have acted on the same principle in the various laws which congress have passed in relation to private claims to lands -in the Floridas ; they have, not undertaken to decide for themselves on the validity of such claims without the previous action of some tribunal, special or judicial. They . have not authorized an entry to be made on the possession of
Another objection is made to the title of the petitioner, on the allegation that by the treaty of Picolata between Great Britani'and the Creeks in 1765, the Indians had ceded all the lands in controversy between the sea and flow of the.tide, in virtue of which they became the property of the crown and passéd to Spain by the treaty of 1783.
The fifth article of the treaty of Picolata, made to prevent encroachments on the lands or hunting grounds of the Creeks, stipulates that the boundary of the province'of East Florida “ shall be all the sea coast as far as the tide flows, in the mаnner settled with the great Tomachiches-by the English,” with all the country particularly described therein, which they grant and confirm to the king.
As this refers to a treaty of compact made with this chief, its meaning must be sought in it, and unless something can be found there which will make the expression more definite than the general terms “ all the sea coast as far as the tide flows,” it will require great latitude of construction, as to an Indian cession, to extend it from the St Mary’s, around the peninsula of Florida to the mouth of the Appalachicola. The tract of country ceded' lies on the sea coast, east of a point formed by a line run from the source of the St John’s, which is its southern boundary; the western boundary is a line run from the junction of the Ocklawaugh with the St John’s northwardly to the St Mary’s, nearly parallel to the sea coast, at an average distance of about thirty miles west. It would be stretching the meaning of this treaty very far, to embrace within it an extent of, sea coast and contiguous land within the flow of the tide to it3 "whole extent, when the extent of the lands ceded west of a line from the mouth of the Ocklawaugh to
As this is the act referred to, it must be taken in connexion with-the subsequent treaty to make it certain by the reference, ~ (
Th.e'report of the surveyor-general in 1817, is very full on the subject of the boundaries between the British government and. the Indiana in East and West Florida. (Record .184— 194.) . He says, “ with regard. to East Florida, I have never been able to discover that there has. ever bee'n any treaty or agreement with the natives of that province concerning the limits of their possession, nor in that of the Spanish authority.” As the surveyor-general had referred to the treaty of Picolata in his report, it is clear that it was construéd by the Spanish government as it now is by this court.
We now.cpme to consider the.nature and extent of the Indian (itle to’ these lands.
As Florida was for twenty years under the dominion of Great Britain, the laws of that country were in force as the rule by which lands wé.re held and sold; it will be necessary to examine what they.were as applicable to the British pro-winces before the acquisition of the Floridas by the. treaty'of peace in 1763. One uniforní rule seems to have prevailed from their first settlement, as appears by their laws; that friendly Indians were protected in the possession of the lands " they occupied, and were'considered as owning them by a perpetual. right of' possession in the tribe or nation inhabiting them, as their common property, from generation to generation, not as the right of the individuals located on particular spots; -
Subject to this right of possession, the ultimate fee was in . the crown and its grantees, which could be granted by the
. Individuals could not purchase Indian lands without permission or license from the-crown, colonial governors, or according to the rules prescribed by colonial laws; but such purchases were valid with such license, or in conformity with the local laws; and by this union of the perpetual right, of occupancy with the ultimate fee, which passed from the crown by the license, the title of the purchaser became complete.
Indian possession or occupation was considered with reference to their habit's and modes of life ; their hunting grounds were' as much in their actual possession as the cleared fields' of the whites; and their rights to its exclusive enjoyment in their own way and for their own purposes were as much respected, until they abandoned them, made a cession to the government, or an authorized sale to individuals. - In either ca^é their right became extinct, the lands could be granted disincumbered of the right of occupancy, or enjoyed in full dominion by the purchasers from the Indians. Such was the tenure of Indian lands by the laws of Massachusetts (Indian Laws 9, 19, 15, 16, 17, 18, 19, 21) ; in Connecticut (40, 41,
42);
Rhode Island
(52,
55) ; New Hampshire (60) ; New York (62, 64, 71, 85, 102); New Jersey (133); Pennsylvania (138) ; Maryland (141, 143, 144, 145); Virginia (147, 148, 150, 153, 154); North Carolina(163, 4, 58); South Carolina (178, 179); Georgia(186 187); by congress, (Appendix 16); by their respective laws, and .the decisions of courts in their.construction. (See cases collected in 2 Johnson’s Dig. 15, tit. Indians; and Wharton’s Dig. tit. Land, &c. 488.) .Such, too, was the view taken by this court of Indian rights in the case of Johnson v. M’Intosh (
The merits of this case do not make it necessary to inquire whether the Indians within the United States had any other rights of soil-or jurisdiction ; it is enough to-consider it as a ■settled principle, that their right of occupancy is considered as sacred as the fee simple .of the whites. (
The Indian deeds made at the treaty of Fort Stanwick’s were to the king in trust, for the grantees. '(Colony Titles 82 — 98.)
It. was an universal rule that purchases made at Indian treaties,in the presence and with the approbation of the officer, under whose .direction they were held by the authority of the crown, gave a valid title to the lands ; it prevailed under the laws of the statés áfter the're volution, and yet continues in those where the right to the ultimate fee is owned by the states or their . grantees. It has been adopted by the United States, and purchases made at treaties held by their authority have been always held good by the ratification of the treaty, without any patent to the purchasers from the United States. This rule in the colonies was founded on'a settled rule of the law of1 England, that by his prerogative the king was the universal occupant of all vaca it land in his dominions, and had the right to grant it at his pleasure, or by his authorised’officers. (Hob. 322; Co. Litt. 1, 41, b ; 4 Bac. Abr., Prerog. 153 ; 7 Day’s Com. Dig. 76.)
The authority of the proclamation is in the right of the king" to législate over a conquered'country, which, as lord Mansfield says, was never.denied in Westminster Hall, or questioned in parliament. If a king* comes to a'country by conquest, he may alter.its laws; but if he comes to it by title and descent, it must be with consent .of parliament. He is entrusted' with making the treaty of peace; he may yield up the conquest or retain it on what, terms he pleases. These powers no man ever disputed; neither has it hitherto been controverted that the king might change part orthe whole of the law or political form of government of a conquered dominion. He comes ire
place of the king of Spain,
the former sovereign. (Cowper 204, 213), in a case arising under .this proclamation.) The proclamation of October 1763, then, must be. taken to be the law of. the Floridas till their cession by Great Britain to Spain in 1783, superseding during that period the laws of»Spain which . had been before in force inthose provinces, so far as they were repugnant; and according to the established principles of the
By. the treaty of Mobile in 1765 the boundary of the lands or hunting grounds reserved and claimed by the Chickasaw and Choctaw Indians was settled, a cession was made to the king, reservihg to themselves, full right and property in all the . lands northward of such boundary. (Record 309.)
The treaty of Pensacola in the same year- established the boundary with the upper and lower Creeks, who made a cession of lands, which they grantеd and confirmed to the king, (Record 310, 3Í1) and a-similar treaty was made with the Creeks at Plcolata, in east Florida, in the same' year. (Record 312.)
By thus holding treaties with thése Indians, • accepting of cessions from them with reservations, and establishing boundaries with'them, the king waived all rights accruing by conquest or cession, and thus most solemnly acknowledged that the Indians had rights of property which they could cede or reserve, and that the boundaries of his territorial and proprietary rights should be such, and such only as were stipulated by these treaties.
This brings into practical operation another principle qf law settled and declared in the case of Cámpbell v. Hall, that the proclamation of 1763, which was the law of the provinces cejled by the treaty of 1763, was binding on the king himself, and that a right or exemption once granted by one proclamation could nqt be annulled by a subsequent. (Cowp. 213.) It cannot be necessary to inquire whether rights secured by a treaty approved by the king are less than sacred under his voluntary proclamation.
A treaty was accordingly held in Pensacola in 1784 with the Tallapoosas or Seminoles/ the object of which was declared to be to make the subjects of the king enjoy the fruits of .peace, by which the Indians acknowledge themselves his subjects, promising to obey the laws in those points which were compatible . with their character ■ and circumstances, conforming themselves to the usages and municipal customs which are established (Record 320), observing their contracts with the . traders in good faith (Record 323), and promising, to observe “ those orders exacted by reason; equity and justice, the principal basis of this congress.”. By the thirteenth article, the' officers of the crown promised in the royal name, the security and guarantee of the lands which the Indians hold, according to the right of property with which' they possessed them, on the sole condition that they are comprehended within the limits of the king as the sovereign. (Record 324, 404, 405, 364.)
In 1793 another treaty was held at the Walnut Hills with the same Indians (among others); it' was declared to be a treaty of friendship and warranty between them and the king, who was declared their immediatе protector and mediator between them and the American states, in order to regulate their boundaries with them, and preserve the Indians in the possession of. their lands. They were referred to the governor of West Florida, “ as
But Spain did not consider the' Indian right to be that of mere occupancy and perpetual possession, but a right of. property in the lands they held under the guarantee of treaties, which were so highly respected, that in the establishment of a military post by a royal order, the site thereof was either purchased from the Indians or occupied with their permission, as that of St Mark’s. The evidence
of
governor.Folch, given in 1827, on the nature of the Indian title, is very strong and full (Record 231 — 235), and the high respect paid to it by all the local authorities so late-as 1816, is strikingly illustrated in a report of the surveyor-general of West Florida, It seems that in that year an application was inade for permission to buy lands on the other side of the Bay of Pensacola, to which the reply of the governor and sub-intendant was, if the lands are situated on the side from Yellow Water hitherward, “ I ani persuaded they belong - to the Indians,
even our omi careening
When their right is thus regarded as to their lands in the immediate vicinity of the seat of • government of the province at so late a period, jt cannot be doubted, that it was considered by the officers tíf the king as at least equally valid in a far distant part, remote from any habitation of the-whites, save those connected with the house óf Panton or Forbes. Although it may be conceded as a principle of national law, that when Spain topic possession of these provinces, the king could establish whatever form of government- or system of laws he pleased ; consider by the law of power, though not of right, the Indians as his subjects or as mere savages, with whom there should be no relations but those of peace and trade, and who held no rights otherwise'than at the pleasure of the go-vémment, or accоrding to the laws in force in other provinces; yet, it was' his orders to his officers to continue and confirm those relations which had previously existed, to consider, treat and protect the Indians as his subjects, and to give them, new and most solemn pledges of his protection in all their rights, as individuals; and as nations or tribes, competent parties to treaties of mutual guarantee, for. his, as well-as their protection in those provinces, which had not before b.een done in any of his dominions.
This was not done for slight reasons, but for such as would seem in the opinion of all the great officers of the provinces to have led to these treaties, and strong stipulations, as indispensable to secure their possession.. But their obligation on the king did not depend on the motives which led. to their adoption; they bound his faith, and when’approved by him became the law of the provinces, by the authority of royal orders, which were supreme, and bound both king and Indians as contracting parties, in this respect as nations on a footing of equality of right and power. The consequence was, that when once received into his protection as individuals, they
When they acquired and took possession of the Floridas,. these treaties remained in force over all the ceded territory by the orders of the king, as the law which regulated the relations between him and all the. Indians, who were parties to them, and were binding on the United States, by the obligation they had assumed by the Louisiana treaty, as a supreme law of the land which was inviolable by the power of congress. They were also binding as the fundamental law of Indian rights, acknowledged by royal orders and municipal regulations of the province, as the laws and ordinances of Spain in the ceded provinces, which were declared to continue in force by the proclamation of the governor in taking' possession of the provinces, and by the acts of congress, which assured all the inhabitants of protection in their property. It would be an unwarranted construction of these treaties, laws, ordinances and municipal regulations, were we to decide that the Indians were not to be maintained in-the enjoyment of all the rights which they could hаve enjoyed under eitliér, had the provinces remained under the dominion of Spain. It would be rather a perversion of their spirit, meaning and terms, contrary to the injunction of the law under which we act, which makes the stipulations of any treaty, the laws and ordinances of Spain.
On these considerations, we are clearly of opinión that the Indians who claimed the lands in question had, under the government of Great Britain and Spain, a right' of property in them which could not be impaired without a violation of the laws of both, and the sanctity of repeated treaties; that these rights continued till the time of the cession, are guarantied by the treaty and acts of. congress in relation to the.floridas, in perfect conformity with its stipulations and faith, unless the Indians had previously made a binding transfer to the parties under whom the petitioner claims them.
The remaining question is, whether he has become invested with the right of the Indians, either in virtue of their deeds, or by the grant of the lawful authorities of the king, pursuant to the laws, usages and customs of- the Spanish government of the province. The proclamation of 1763 was .undoubtedly the law of the province till 1783 ; it gave direct authority to the governors of Florida to grant crown lands subject only to such conditions and restrictions as they or the king might prescribe. These lands were of two descriptions: such as had been ceded to the king by" the Indians, in which he had full property and dominion, and passed, in full property to the grantee; and those reserved and secured tp the Indians, in which their right was perpetual possession,_ and his the ultimate reversion in fee, which passed by the grant subject to the possessory right. The proclamation also authorized the uniоn of these rights by a purchase -from the Indian's,- and taking -possession with the leave and license of the crown in favour of an individual, or by the governor at an Indian council, for and in the.name. of the king. This proclamation was also the law of all the North American colonies in relation to crown lands. The grants of the governors were universallyconsidered as made by the king through his authorized representatives, and when his authority to grant thbse lands of .the crown,-the right-to which was perfect by the union of the rights of possession with the reversion, it is scarcely possible that their authority would be more limited as to those in which t-he king^bad only a-uemote ultimate fee. ■_ Ás a rnatt.er of policy, it was for the benefit of the king and colony to substitute the' possession, settlement and culti
- Independently of these considerations ‘there is another, founded on the treaty at the Walnut Hills, with the Creek and Tallapoosa Indians, held by the then governor of West Florida, under the authority of the governor-general of Louisiana. ■ Tlie governor of that province, is in the fifth article declared to be
“
as representing the king in it.” ■ Such a stipulationin a.treafy óf friendship and warranty would, bind the king in good faith not to disavow his acts declared to be done, in the royal name and authority. It would be an imputation on his faith to his acknowledged subjects, plighted by repeated- guarantees, to suppose that. he. intended by the treaty of'cession to exclude from confirmation, those lands which his white subjects had purchased from the Indians under the sanction of treaties, with the approbation and formal confirmation of his highest officers ; and to confirm only those grants of the royal domain, which had been made at the mere will of his governors, for such consideration only as they might prescribe.. If there could be any
There, is nothing in the treaty which authorizes a distinction between such grants, .which operate by their own force as a transfer of the full property in royal lands, held by the crown under cessions from the Indians; or deeds of confirmation, which give validity to grants conveying the Indian right, in . confirming the transfer by the license of the king in the person of his representative.
The governor was equally the lawful authority of the king for the one purpose as the otherthough he had, by his royal order, transferred the power to grant royal lands, from the governor to tiie attendant; he' had not affected the authority of the former, to confirm grants made by the Indians in such form as to validate the title conveyed. Whether this act of the governor operated by way of confirmation or grant is immaterial;, it gave such effect to the purchase, that the lands became the property of the purchaser, so that they could not revert to the crown by the .abandonment of the Indians,-or any judicial process known to the'law of England or Spain, which in substance and effect were the same. When we look, too, to the very remote contingent interest which the king could have to .these lands, consistently with his guarantee to the Indians, there can be no reason perceived why deeds or grants, operating to confirm in full property to the purchasers from the Indians, lands thus guarantied to them, should not be held in a court of equity as valid as original grants of the royal domain.
The Indian right to the lands as. property, was not merely of possession, that of alienation was concоmitant; both were equally secured, protected, and guarantied by Great Britain and Spain, subject only to ratification and confirmation by the •license, charter, or deed from the governor representing the
. In the present case the Indian sale has been c.onfirmed'wilh more than usual solemnity and publicity ; it has been done at .a public council and convention of the Indians conformably to -treaties, to which the king was a party, and which the United States adopted, and the grant was known to both parties' to the treaty of cession. The' United States were not deceived. by the purchase, which they knew was subject to the, claim of the petitioner, or those from whom he purchased, and made no stipulation which should put it to a severer test than
As heretofore decided by this court, the law presumes the existence in the provinces of . an officer authorized to make valid grants (
For these reasons we think the title of the petitioner is valid by all the rules prescribed by the acts of congress, which give us jurisdiction of the case.
This cause came on to be heard on the transсript of the record from the superior court for thé middle district of Florida,
' and was argued by counsel: on full consideration whereof, this court is unanimously of opinion, that the title óf thé 'petitioner to so much of the lands in controversy as is embraced within the lines and boundaries of the- tract, granted by the deeds, grants and acts of confirmation to Panton, Leslie- & Co. in Í804 and 1806; also to the .island in the river Appalr-chicola, ceded, granted and confirmed to John Forbes in' 1811; also to .the lands and islands at and west of the mouth of said river, which were ceded, granted and confirmed to John Forbes & Co. in 1811, is valid by the law of nations; the treaty between the-United States and Spain', by which the territory of the Floridas was ceded to the former; the laws and ordinances of Spain, under whose government' the' title originated ; the ■proceedings under said treaty, and the acts of congress relating thereto: and do finally order, decree, determine and adjudge accordingly. And this court doth in. like manner order, adjudge, determine and decree, that the title of the petitioner to so much, of the tract of land which lies east of the "first mentioned tract, between the rivers Wakulla and St ' Mark’s, which was conveyed to John Forbes & Co. in 1811, as shall not be'included in the exception hereinafter made, is valid by the laws, treaty, and .proceedings as aforesaid; with the exception of so much of the last mentioned tract as includes the fortress of St Marks and the territory directly and imme-. diately adjacent and appurtenant thereto, which are hereby - reserved for the use of the United States. And it is further-ordered and decreed, that the territory thus described shall be
The decree of the court below is, therefore, reverged and annulled in all matters and things therein contained, with the exception aforesaid; and this court, proceeding to render such decreе as the said court ought to have rendered, do order, adjudge and decree, that the claim of the petitioner is valid and ought to be confirmed, and is and .remains confirmed by the treaty, laws and proceedings aforesaid, to all the lands embraced therein, except such part as is herein above excepted. And this court does further ordet, adjudge and decree, that the clerk of this court certify the sarifo to the surveyor-general of Florida, pursuant1 to layi, with directions to survey arid lay off the lands described in the petitiqri of the claimant, according
And this court doth further order, adjudge and direct, that the extent and boundaries of the land thus excepted and reserved shall be ascertained and. determined by the superior court of the middle district of .Florida in such manner and by such process as is prescribed by the acts of congress .relating to the claims of lands in Florida, and to render thereupon such judgment.or decree, as to law shall appertain.