Title: Exposition, historical and legal of the title of Colin Mitchell and others to lands in Florida
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 Material Information
Title: Exposition, historical and legal of the title of Colin Mitchell and others to lands in Florida
Series Title: Exposition, historical and legal of the title of Colin Mitchell and others to lands in Florida
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Creator: White, Joseph M.
 Record Information
Bibliographic ID: FS00000079
Volume ID: VID00001
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Holding Location: Florida State University
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B I W E-

S..-. .. .






COLIN MITCHELL and others, appellants, )
vs. January term, 1835.

This was a petition in equity, brought by the petitioners, Colin Mitchell
and others, under a special act of Congress, approved 23d May, 1828,
{acts of 20th Congress, page 60,) in pursuance of the sixth section of said act,
and-o a law of 1824, therein referred to, authorizing claimants in Missouri
to institute proceedings to try the validity of their land titles (Clarke's Land
Laws, page 871.) The petitioners claim under regular deeds from John
Forbes and others, the original grantees, passed in due form of law, by per-
mission of the Spanish authorities.
The petition contained all the allegations required in said laws to give the
court jurisdiction, and was filed in the superior court of the middle district
of Florida, at October term of 1828. The land claimed in said petition is
situated between the rivers St. Marks and Appalachicola in said district, and
is supposed to contain twelve hundred thousand acres.
The decree of the court below was against the petitioners.
The following points are submitted by the counsel for the appellants:
1st. That the Indian sales of 1804 and 1811, and the several acts in con-
firmation thereof by the Governor of West Florida, vest in the grantees a
full and complete title to the land in controversy.
2d. That the King of Spain was bound in good faith to indemnify the
house of Forbes & Co. for the losses sustained by them in their traffic with
this Indian tribe; that the satisfaction of the claims of that house, which was
affected by these sales, and the consequent release of the obligation of the
King of Spain to indemnify them, constituted a sufficient consideration to
the Spanish crown for any right of pre-emption or otherwise which it might
have had in these lands.
3d. That these sales, having been made with the knowledge, assent, and
previous approbation of the authorities of Louisiana and West Florida, hav-
ing been subsequently ratified and confirmed by the civil and military Gov-
ernor of the latter province, having been notified to the Captain General of
Cuba, and by him to the King, and not having been disapproved by either;
that these several acts and omissions amount to an acquiescence on the part of
the King of Spain and his legitimate authorities, which, according to the laws
and usages of that kingdom, would vest a valid title in the grantees.
4th. That the decision of the Captain General of Cuba, on the petition of
John Forbes setting forth his title to these lands, and praying leave to sel the
same, is a judicial decision upon the validity of that title by the highest legiti-
mate authority of that captain generally, to which West Florida was an ap-
pendage, and cannot be drawn into question in any other tribunal.
5th. That the grantees, and those claiming under them, have had legal pos-
session in good faith by just title since the date of the respective grants,
which constitutes a title by prescription under the laws of Spain.

6th. That the title thus subsisting in the grantees, by the aforesaid sales
and acts of confirmation, by the acquiescence, after notice, of the King of Spain
and his legitimate authorities, by the judicial decision of the Captain General
of Cuba, and by the right of prescription, at the date of the delivery of the
Floridas to the United States, was a valid and legal title, which was recognized
and confirmed by the treaty of cession.
The title of the petitioners is derived from two sources, to wit:
1st. The native or aboriginal Indians.
2d. The Spanish Government.
The act of Congress conferring jurisdiction upon the courts of Florida to
hear and determine this case, has been examined, discussed, and its construc-
tion settled by this court in the cases of Arredondo, Percheman, and Clarke.
The eighth article of the treaty between Spain and the United States has
also been argued and re-argued in the cases referred to, and its true meaning
and interpretation, with the various principles of international law applicable
to it, finally settled by the solemn adjudications of this court in the cases be-
fore mentioned.
It will not be necessary, in any. subsequent argument, to refer to the ques-
tions so elaborately argued, so profoundly considered, and so fully and ably
There are only one or two remarks in regard to this case, and its connex-
ion with the treaty, which are deemed proper to be made as preliminary to the
examination of the title itself.
This is one of the largest and the oldest titles in either of the Floridas.
It was calculated, from its magnitude, to attract the attention not only of every
individual in the province, but in the United States. The mercantile firm
of Panton, Leslie, and Co., which, in 1804, was changed into the name and
style of John Forbes and Co., from its peculiar position and relations, was
more extensively known than any in the United States or in North America.
It has been associated in history, and in the correspondence of our Gov-
ernment, with all our intercourse and negotiations with the Southern Indians
from 1784 down to 1812. There are more than five hundred references to
this mercantile establishment in the folio volume of public documents on In-
dian affairs, recently published under the authority of the Congress of the
United States.
There are also to be found in this book numerous references in the cor-
respondence of the various departments of the Government to the title of
the appellants in this case, which prove conclusively that the existence of
this title was known to the American authorities from its inception up to the
negotiation and conclusion of the treaty. It was not only known historically,
but had been the subject of negotiation and correspondence between the parties
and the Secretary of War as early as the year 1805.
In the negotiations which led to the treaty of 1819, Mr. Adams, in a letter
of the 16th January, 1818, proposed to the Chevalier de Onis his project of
a treaty, in which it is stipulated to annul all grants of land made subsequent
to 1802. The words were: no grants of land subsequent to.the 11th of
August, 1802, to be valid."--Vol. 12, State Papers.
The Chevalier de Onis thus replies in a letter of the 24th January:
Nor can I omit to declare to you, sir, that the pretension of annulling
the grants of land in Florida since August, 1802, would be in opposition to
all the principles of justice. These grants are made in a lawful manner, and
by a lawful authority." ,

This proposition was made to avoid, by the terms of the treaty, the con- ,
firmation of a title known and admitted to be valid at the time, by carrying
back the confirmation to the year anterior to its date. The proposal was re-
jected, and no other proposition made to exclude this title from the ratifica-
tion of the treaty. The period agreed upon between the two Governments
was the 24th January, 1818; and that date was introduced and fixed, as
declared by the President of the United States in his message to Congress, to
exclude the three grants of Allagon, Punon Restro, and de Varges, and
for no other purpose whatever."
At the time of the negotiation of this treaty, it was understood that about
one-fourth of the territories had been granted. This one grant contains
nearly as much land as all the others put together; and all, if every one
which has been, or can be presented under the laws of the United States, in-
cluding this, are confirmed, the whole quantity will not exceed three millions
ofxacres out of thirty-two millions, leaving twenty-nine millions to pay five
millions of dollars.
The United States had full knowledge of the existence of this title, and
did not propose to reject or annul it in any other manner than by carrying
back the provision for confirmation to 1802; which was abandoned.
The great object of solicitude on the part of the United States, was the
jurisdiction and sovereignty of the country, an acquisition to them of infinite-
ly greater importance than the claims on Spain. It was certainly desirable
to make out of the lands of the ceded territories five millions of dollars, for
which object they have an undisputed title to twenty-nine millions of acres.
This statement will at least show that a generous Government has no very
powerful motives for adopting a rigorous construction of a treaty, intended to
secure titles under a Government, of all others in the world least careful of
The title of the petitioners in this case requires no such indulgent consid-
erations, nor is there any necessity to invoke any thing but justice and law
for its decision.
The agents of the Government of the United States have been' so sensi-
ble that every question upon which this title rests, as presented by the .re-
cord, have been decided by this court, that they have continued the case for
four years, to see if something could not be found out of the record, upon
which it might be impeached.
If, then, no new law, or royal order, duly authenticated, has been found, the
attempt to defeat this title must be abandoned, unless it be admitted that the
motions for a continuance were made for the purpose of delay.
The title, in this case, is derived from
1st. The aboriginal Indians.
2d. From the authorities of the Crown of Spain.
The first question presented is, what was the nature of the Indian title
within the Spanish dominions?
The title of the Lower Creek or Seminole Indians, called by the Spaniards
Talapuches, to the lands within the boundaries of this grant, was never de-
stroyed by conquest, nor extinguished by treaty. This is a historical fact,
unquestioned and unquestionable. It is proved by the history and official
correspondence of the Spanish authorities, and it is admitted by all the pub-
lic functionaries of the United States, from the date of General Washington's
treaty, in 1790, down to that of Camp Moultrie, near St. Augustine, in 1823.


As this fact may be deemed of some importance in the consideration of this
cause, I propose to show, in the first place, how this title was considered-
1st. By Spain;
- 2d. By the United States.
By the definitive treaty of 1763, the Floridas were ceded by Spain to
Great Britain, and were held by the latter power until 1783, when West
Florida having been conquered by the Spanish arms, in 1781, the two Flo-
ridas were ceded to Spain by treaty in 1783.
During the period of the occupation by Great Britain, the Indian title with-
in the Floridas was respected in the same manner that it was in all the other
British provinces in North America. The Indian right to that portion of the
territory in which these lands are situated never was extinguished. In 1783
Spain was restored to the possession of East and West Florida, and one of
the first acts of the Spanish authorities was to enter into a treaty with these
Indians. Before referring to the terms of that treaty it may be necessary to
inquire into the Spanish laws in relation to the Indian right independent of
this treaty.
It is a well known historical fact that the Spaniards, in the early settle-
ments in North and South America, by their system of encomiendas and
repartimientos, granted 'the land, with the Indians upon it; and the grant
was only considered valuable in proportion to the number of the Indians.
This policy was entirely changed by a bull of the Pope; and during the
period of the last century the Indians were treated with more clemency by
the Spaniards than by any other of the European Powers that established
colonies on this continent.
The Spanish policy and law may be collected from the following autho-
In the Recopilacion de las Leyes de las Indias," it is declared that the
King wills and orders whatever may appear necessary for the protection
and Christian police of the Indians, without prejudice to established usages
among them, or to their good and wholesome customs."-Lib. 2, law .4,
vol. 1, p. 218.
"It being our wish that the Indians be protected, and that they be not
injured or molested in the person or property, we command," &c.-Idem,
lib. ii, tit. 18, law 36, vol. 1, p. 412.
Whereas some grazing farms have been productive of injury to the In-
dians by being located on their lands, or very near their fields and settle-
ments, we command that the judges remove them," &c.-Idem, lib. 2, tit. 31,
law 13, vol. 1, p. 484.
We command that the farms and lands which may be granted to Span-
iards, be so granted without prejudice to Indians, and that such as have been
granted be restored."-Lib. 4, tit. 12, law 9.
We command that the sale, grant, and composition of lands be executed
with such attention that the Indians shall be left in possession of the full
amount of lands belonging to them, either singly or in communities."-Lib.
4, tit. 12, law 17. Nue. Rec.
In the oath directed to be administered to the Governors, in book 5, chap.
2, they were required to swear that they would look to the welfare, augmen-
tation, and preservation of the Indians."
In a more recent work, entitled "Solorzano's Politica Indiana," published
under the authority of a royal ordinance, and received as a work of approved
authority in all the Spanish courts and dominions, the following provisions

will be found in confirmation of the principles established in the Recopilacion
de las Leyes de las Indias," to wit: Indians, although of age, continue to en-
joy the rights of minors, to avoid contracts or other disposition of their pro-
perty, particularly real, made without the authority of the judiciary, or the
intervention of their legal protectors."-1. page 209, paragraphs 24 and 42.
Indians are considered as- persons under legal disability,.(Ibid. 46;) and
their legal protectors stand in the light of guardians, (tutores) 51.
The Fiscal, in the audiencias, was their protector; but in some cases they
had special protectors.-Ibid. 53.
In making wills and testaments, Indians, on account of their natural sim-
plicity, are not bound to observe the same legal forms which are required of
other persons.-Ibid. 55.
Book 2, chap. 1, paragraphs 6 and 7. The Indians are to have full liberty
and free administration of their effects, like other subjects in other parts.
(Par. 11.) Nor are they to be deprived of the free and lawful use of their
estates and effects. (Par. 13.) The same principle, more expressive, and
referring to the Recopilacion, chap. 5, p. 7 and 8.
Chapter 29, p. 42. When Indians dispose of landed property, or other
thing of value, the sale is void, unless by the intervention of the authorities,
or of the Protector General, or person designated for the purpose.
Book 5. chap. 16, is on the subject of [laws, and goes to show the impos-
sibility of dictating rules to suit every people of the monarchy, and how
much must be left to the Governors.
Book 2, chap. 24, paragraph 39. In case of the Indians retiring from
their lands by flight, death, plague, &c., without any prospect of their return,
they lose the lands, and can never afterwards retain them. (Paragraph 42.)
They return to the Crown by the law of reversion.
The usages and practice of all the tribunals of Spain, in Louisiana, East
and West Florida, will be found in conformity with these humane provisions.
Vide all the regulations of police of Governors in East Florida, and the 35th
article of Morales's Regulations for Louisiana and West Florida.
Although the whole of that portion of East Florida occupied by that part
of the Seminoles called Alachua, or "Lochaway Indians," in which the
grant of Arredondo is situated, had been depopulated by the insurgents of
East Florida, and the invasion of the United States, in 1812, 1813, and
1814, and came within the provision of the Spanish laws above quoted, to
wit: that, where the Indians retire from them by flight, death, or plague,
without any prospect of return, they lose the lands;" yet so regardful was
the Intendant of their rights, that he inserted a provision in the grant of Arre-
dondo, that it should not be prejudicial to the rights of the native Indians.
These laws show how far the King of Spain respected the title of those
Indians as "individuals, and in communities."
These royal cedulas, promulgated by the council of the Indians, were fol-
lowed by the treaty of 1784. This treaty will be found in the 10th volume
of American State Papers, page 223, and in the Record, and is entitled
" Articles of convention, treaty, and pacification, agreed upon by the Span-
ish nation with the Tallapuche Indians, at a congress held for that purpose
in the fort of Pensacola, on the 31st of May, and 1st of June, 1784." The
object of this convention, as recited in the preamble, was to obliterate the
remembrance of the evils caused by the last war;" to conclude and cement,
on the most solid foundations, the friendship and good union which the Span-
ish nation proffers to the Tallapuche tribes." The first article contains a

promise, on the part of the Indians, "to keep and maintain an inviolable
peace and fidelity with His Catholic Majesty, his provinces, subjects, and
vassals, procuring to ourselves reciprocally whatever advantages may contri-
bute to the glory of the contracting parties." We undertake to expose, for
the royal service of His Catholic Majesty, our lives and our fortunes, to obey
his sovereign orders in case of necessity," &c. in those points that are
compatible with our character and circumstances." In the second article, the
Spanish commissioners stipulate, in the name of the King, to proportion
among the contracting nations a commerce permanent," &c.
3d Article. The Tallapuche nation shall establish a general peace."
4th Article. "We, the chiefs of the Tallapuche nation, as often as any
stranger shall introduce himself into our towns with the insidious idea of in-
ducing us to take up arms against our sovereign the great King of Spain,
oblige ourselves to arrest him," &c.
5th Article. We will not admit into our towns any white person, of what
nation soever he be, unless he bear the passport of these provinces."
9th Article. "We will prevent our people, by all means possible, from
committing theft," &c.
12th Article. To maintain the order exacted by reason, equity, and jus-
tice, the basis of this congress, and on which depend our lives and proper-
ties, as well as the tranquillity of our towns, whenever any individual of our
nation shall commit the horrible and detestable crime of murder on any sub-
ject of His Catholic Majesty, we oblige ourselves to deliver the head of the
aggressor." In consideration of which, the Governor agrees to punish a
Spaniard according to the laws of the kingdom, in the presence of the chief
and the sufferers.
13th Article. "As the generous mind of His Catholic Majesty does not ex-
act from the nations of Indians any lands to form establishments to the pre-
judice of the right of those who enjoy them; in consequence, and with a
knowledge of his paternal love towards his beloved nations, we promise, in
his royal name, the security and guaranty of those which they actually hold,
according to the right of property with which they possess them, on condition
that they are comprehended within the lines and limits of His Catholic Ma-
Although this treaty would, in some respects, be considered as an incor-
poration of the Indians with the Spanish dominions, it is evidently, taking
it all together, a treaty of alliance, securing to the Indians separate comr
merce, government, laws, and property. Spain so construed it, and the In-
dians so interpreted it. In confirmation of the contemporaneous and subse-
quent interpretation of the two contracting parties, the United States prac-
tically placed the same construction upon it when they appointed commis-
sioners to negotiate for the Indian title after the conclusion of the Florida
treaty. If Spain had extinguished the right of the Indians, and ceded to the
United States the territories in full property and absolute dominion by the
treaty of 22d February, 1819, it never could have been necessary to have
had a second treaty to acquire their lands.
These Indians possess the power of war and peace, hold national domain,
contract alliances, regulate commerce, and establish laws for their tribe as a
separate nation.
The letter of Governor Miro, one of the negotiators of the treaty to the
Count de Galvez, Captain General, will be found at page 263 of the Record.
This letter explains the object of the treaty and the Spanish construction of

it. At pages 265 and '6, Governor Mire distinctly states his view of their
title under the British Government, and gives a pledge, in the royal name of
His Majesty, to cede them the lands found vacant in his dominions."
In another treaty made at the Walnut Hills, (Nogalez,) in 1793, with the
same Indians, that of 1784 is recognized, reaffirmed. See Record, page 241.
The 4th article stipulates for an alliance offensive and defensive. They
mutually agree to succor each other, and not to determine any essential
point, which may have an influence upon the security or conservation of any of
them, without consulting the others."
Article 5. The nations mentioned in the last preceding article, being un-
der the protection of His Catholic Majesty, engage themselves not to deter-
mine on any affair of the nature expressed in the said article, without con-
sulting the Governor of this province, as representing the King in it."
During the war between Spain and England, which resulted in the conquest
of West Florida by the former in 1781, the Spaniards extended their mili-
tary posts upon the Mississippi, to the place where this treaty was made,
which they never relinquished until after the treaty of San Lorenzo el Real
of 1795. This treaty, in fact, led to that of 1795, as is indicated by the pledge
then given by Spain to settle the question of boundary with the United States,
as the mediator of the Indians.
This treaty also fixes upon Pensacola as the point for their negotiations, so
far as the Creek, Tallapoosa, and Cherokee nations are concerned.
They bind themselves to receive all talks sent them from the Governors,
and to send their talks to the Governors.
In another treaty of 1792, to be found at page 247 of Record, further to
illustrate the Spanish policy in regard to the Indians, it will be perceived that
a line was agreed upon, and beyond a certain line all the lands were declared
lawfully and indisputably to belong to the Chickasaw and Choctaw nations"
of Indians.
When Ellicott, the American commissioner under the treaty of 1795, de-
scended the Mississippi, he found the Spaniards in possession of the whole
country south of Walnut Hills, including that post.
We have seen that, by the laws of Spain, Indians were permitted to hold
lands as individuals and in communities."
We have seen that by treaties solemnly entered into, these rights were
acknowledged, secured, and ratified, in the provinces of Louisiana and the
Floridas, and that by those treaties of alliance, friendship, and pacification,
thb Indians were to do no act that would have any influence upon their se-
curity and conservation, without consulting the Governor of the province," or
this province, which was within the then colony of West Florida.
The judge below attempts to draw a distinction between the Governor of
the and this province, and without bearing in mindthe fact that Nogalez is
on the east of the Mississippi, and was, therefore, in West Florida.
The 5th article of the treaty of San Lorenzo el Real of 1795, (White's
Com. p. 178,) recites, that" whereas several treaties exist betweenthe contract-
ing parties and said Indians, it is hereby agreed that in future no treaty of
alliance &c. shall be made."
The treaties of 1784, and 1792--3, are here referred to, as understood by
the United States and Spain, as treaties of alliance, and not of subjugation,
or incorporation' into the Spanish dominions. They could not be designated as
treaties of alliance, or so considered by Spain or the United States, at that


time, if they were a surrender of their lands, and a disfranchisement of all
their national rights.
It was, on the contrary, considered that they were still competent to form
other treaties of alliance, with either of the contracting parties to the treaty of
1795, and it was thought necessary to guard against it, by a provision that
neither should enter into any other than a treaty of peace" with them sub-
sequent to that period.
The existence of those treaties were not only admitted, but considered of
such obligatory force upon Spain, that her ministers required the insertion of
an article in the treaty for' the cession of Louisiana, requiring the United States
to execute them. The 6th article of the treaty between the United States
and the French republic of the 30th of4pril, 1803, (White's Com. p. 169,) is
as follows:, '
Art. 6. The United States promise to execute such treaties and articles,
as may have been agreed between Spain and the tribes and nations of In-
dians, until, by mutual consent of the United States and the said tribes and
nations, other suitable articles shall have been agreed upon."
The treaties of 1784 and 1792--3, are here referred to, because they are
the only treaties of Spain with the Indians.
To this brief historical sketch of the laws and treaties of Spain may
be added the uniform and unanimous concurrence of all the Spanish local
authorities in Louisiana and the Floridas, of the unquestionable right of the
Indians to their lands, with the single qualification that they were not to sell
or dispose of them, or do any act to destroy their security and conservation,"
without the consent of the Spanish Governor of the province. There is one
exception. A man by the name of Juan Miguel de Losada, who came to
Pensacola as the servant of Colonel Rodriguez, and who, from his skill in ac-
counts, was made a contador, to take care of flour, &c. He acted for a short
time as Fiscal, and reported to the Governor that the Indians had no lands
in Florida."
In the opinion of the court below, the report of this Losada is mentioned
as one entitled to great weight, being that of the King's Fiscal Minister,"
who, from his education as a lawyer, was supposed to have accurate informa-
tion. This King's Fiscal Minister, who was much better acquainted with con-
verting flour into bread than with Indian rights, ran away from Pensacola,
and his property was attached and sold, because he had forgotten to settle his
With this single exception, there is a concurrence of all the Spanish au-
thorities in the right of the Indians to their lands in the Flokidas which were
not extinguished by conquest or treaty, subject to that voluntary restraint upon
their right of alienation without the consent of the Governor, as the repre-
sentative of the King.
The laws of Spain referred to will be found in White's Com. p. 25,40, 42,
43,47. The treaty of 1784 received the royal sanction. Rec. p. 117.
See talk of Governor O'Neal, Rec. p. 293. In the appendix to Clarke's pub-
lication against Wilkinson, p. 81, will be foind a letter from the Baron de Ca-
rondelet, Governor General of Louisiana, dated 26 May, 1797, as follows:
General Wilkinson having informed the commandant of New Madrid that
he is getting ready a detachment of the army, which he has at his orders, to
take possession of the forts at Natchez and Walnut Hills, in conformity to
the 2d article of the treaty of friendship, limits, and navigation, concluded with
Spain, hoping that it will be faithfully observed; and it having appeared


proper in him to give this advice, in order to prevent any misapprehension of
the motives which direct this movement of their troops, &c., it is very natural
that I should answer him that, in the first place, some doubts having arisen
respecting the manner in which the posts are to be withdrawn on the part of
Spain, that is to say, if they ought to be delivered with their fortifications
and edifices, as the United States understand it, or simply evacuated, razed,
and abandoned, as I comprehend it, avoiding in this way to compromit us with
the nations who have ceded to us the territories of the Bluffs, Walnut Hills,
and Confederation, under the express condition that we should build forts
there, to prevent their lands being taken from them, I had resolved, in regard
to this point, to await the decision of the court, or of the minister plenipoten-
tiary near the United States."
Seethe 31st article of Morales's Regulations, White's Com. p. 215. The
commandants are charged to protect and defend the Indians in the possession
of their lands.
See Governor Folch's statement, Res. p. 232; Record, 251; Record, 172,
174; White's Com. 232. ., l
These are the laws, treaties, principal regulations, and practices of the Go-
vernment of Spain in reference to the rights of the Indians.
Has this right ever been questioned by the United States?
It will by admitted that the Lower Creek Indians, above and below the line
which divided the dominions of His Catholic Majesty from the territories of
the United States, so far as their rights to land were concerned, as a
nation stood upon the same footing prior to any positive or conventional ar-
rangement on the subject.
It must be admitted that the Spanish laws and treaties are more favorable
to those rights within the Spanish dominions, than those of the United States
within the territories of the Union.
It will not be denied that the Lower Creeks, Seminoles, or Tallapoosas,
extended down the Appalachicola river to the Gulf of Mexico, and down the
Peninsula of East Florida. (See British map"of 1796.)
General Knox, the Secretary of War, in a report to General Washington
in 1789, vol. 3 American State Papers, Indian Affairs, page 15, thus
speaks of this tribe:
This nation is divided into two districts, the Upper and Lower Creeks.
The latter reside on the waters of the Appalachicola; some of the most
southern towns of the lower Creeks or Seminoles are within the territories
of Spain." (See also pages 17, 18, 20, 21, same work.)
We have seen that in the treaty of 1795, between Spain and the
United States, the existence of treaties of alliance between those Indians and
His Catholic Majesty was acknowledged. In the instructions of Colonel
Pickering, Secretary of State of the United States, dated September 14,
1796, to the commissioner and surveyor, Andrew Ellicott and Thomas Free-
man, for running and marking the southern boundary of the United States, in
document 96 of the 20th Congress, 2d session, Executive papers, page 16 of
that document, 'the Secretary of State says:
"In contemplating the mode of carrying into execution the two articles
in reference to the southern boundary, it is to be considered that the country
through which the line is to be run belongs, for the most part, to the native
Indians, and is, of course, a wilderness, &c. If the Indians will allow it to be


done, you are to run and mark, &c. If the Indians are averse, you must
stop," &c.
In the same paper, No. 96, Mr. Ellicott speaks of the resistance and op-
position of the Southern Creeks, commonly called Seminoles."
Mr. Ellicott, In a communication to the Department of State of the 9th of
October, 1799, thus describes a conversation of General Bowles, the leader
of the Lower Creek Indians. He represents Bowles as saying:
"That iffmediktely upon the late treaty between the United States and
His Catholic Majesty beihg made public, he protested against it to the min-
isters of the court of Madrid, as interfering with the dignity of his people and
nation, the Creeks, who were as free and independent as any other nation in
the universe. That the article by which the United States and His Catholic
Majesty aie bound to restrain the hostile attempts of the Indians within their
respective territories, was an atrocious violation of the law of nations, and
should never be submitted to whilst his people had a drop of blood to spill.
Thmt he had arrested that part of the treaty at Madrid; And that it must be
done away by the Executive of the United States. Further, that he had
warned the court of Madrid against running the boundary line, and expected,
from assurances giVeni that it had been suspended some months ago; that he
had demanded, in the name of his nation, an immediate evacuation of the
post of St. Mark's, which, if not done immediately, he would fall upon mea-
sures to compel a complianite; that, had he arrived in time, he would have
arrested the Spanish tomttissibner and his party. He likewise intends to
seize Mr. Parton's property at Appalachy."--Document 96, page 10.
In another letter of Mr. Ellicott to Governor Folch, he announces to him
the determitiation of Bowles to attack the "post of St. Mark's, if not evacu-
ated, and t6 seife Mr. Panton's property at Appalachy." 9th October, 1799.
Mr. Jefferson, in a letter to Messrs. Carmichael and Short, dated 14th Oc-
tober, 1792, 3d volume, ; 190, Jefferson's Works, speaking of a proposed
eonveition with Spafi, sayg :
"You know that the frontiers of her provinces, as well as of our States,
are inhibited by Ihdians holding justly the right of occupation, and leaving to
Spiain and to us only the claim of excluding other nations frdt among thbm,
and of becoming ourselves the purchasers of such portions of land from time
to time, as they may choose to sell,"
In another letter to General Knox, 3d volume, pages 120, 121, Mr. Jeffer-
.son says: "I am of opinion that Government should firmly maintain this
ground, that the Indians have a right to the occupation of their lands, inde-
pendent of the States within whose chartered limits they happen to be,
until they cede them by treaty, or other transaction equivalent to a treaty."
Puwuing this subject histoeally, we find that in 1818 the rights of these
Itdianis We*e again made the subject of discussion. President Monroe, in a
letter to General Jackson; dated July 19, 1818, and published in the appen-
dix to Mr. Calhoun's pamphlet, page 86, says:
"The United States stand justified in ordering their troops into Fldoida
in pursuit df their enemy. They have this right by the law of nations, if the
SertiAoles were inhabitants of another country, and had entered Florida to
elude pursuit. Being inhabitants of Florida, with a species of sovereignty
over that part of the territory, :and a right to the soil, our right to give such
an torer is the more complete and unquestionable. It is not an act of hose
utility to Spaint It is the less so, because her Government is bound by trea-


ty to restrain, by force of arms, if necessary, the Indians there from commit-
ting hostility against the United States."
This position was maintained in the debates on the Seminole war. The
question was again revived in 1821, and continued until 1823, when a treaty
was made at Camp Moultrie, near St. Augustine.-Clarke's Land Laws,
page 312.
In this treaty the Indians surrender all their title to the middle district of
Florida, with the exception of certain reservations on the Appalachicola river,
for a stipulated sum, and retain five millions of acres in the peninsula of East
Florida, which they have recently, by another treaty, transferred to the
United States for lands west of the Mississippi river.
These Indians under the Spanish, British, and American Governments,
have had different names, but were all united as one nation of Lower Creeks
or Seminoles. The Natchez nation, which was nearly extirpated by the
French, with sis or seven other broken and reduced tribes, were incorporated
wilt ftb Creks. (See Adair's History of American Indians, pages 257, 267;
McColloch's Researches, page 171.)
It will be perceived from the treaties and correspondence referred to, as
well as from the various documents in the record, that the great object of
solicitude between the Spanish and American Governments was to monopo-
lize the Indian trade.
For this purpose every expedient was resorted to on both sides; commis-
sions and presents, bribes and promises, were offered to the influential men
by both Governments. It was a subject of perpetual jealousy and collision
prior to the treaty of 1795, and it formed the subject of mutual complaint and
recrimination among the agents of the contiguous State and provincial Govern-
ments, and a protracted diplomatic negotiation.
The firm of Panton, Leslie, & Co. was established in the Floridas during
the period that they were under the dominion of Great Britain.
They were Scotch merchants, of great talent, enterprise, and of extensive
commercial connexions, and commercial establishments in London, the West
Indies, St. Augustine, Appalachy, Pensacola, Mobile, and New Orleans.
The Spaniards could not compete with the Americans in the contest for
this lucrative trade, without the aid of this extensive firm. There is no his-
torical fact better established than that of their being utterly incompetent to
maintain the Spanish authority in the Floridas without the aid of this es-
tablishment. This house became incorporated with the Spanish interest, and
identified with the very existence of the provinces. The resident partner was
required to take the oath of allegiance to the Spanish Crown. They were not
only entitled to demand, under the laws of nations, protection for their per-
sons and property, but they had the royal promise of protection and indem-
nity. They succeeded in conciliating to the interest of Spain, and drawing
the commerce of all the southern nations to Spanish ports until the treaty of
1795. The difficulties which grew out of its execution, succeeded as they
rere by the cession of Louisiana, produced the state of things in which this
title originated.
Independent of any royal promise of protection and indemnity to this firm
by the King and his Governors, the principles of international law are too
well established to be questioned or contested, that Spain became responsible
fet the destruction of private property within her dominions. His Catholic
Majesty was obliged to indemnify this firm for their losses by the laws of na-
tions. He was still more strongly bound by the treaties before referred to,


which were intended to regulate commerce, and to stipulate security to the
persons and property of those engaged in it. The position maintained by
the Government of the United States, and acquiesced in by Spain, will be
found in a letter of the Secretary of State, Mr. Adams, to the Chevalier de
Onis, dated 12th March, 1818. (Wait's State Papers, volume 12, page 98;)
Mr. Adams says:
There is no principle of the law of nations more firmly established than
that which entitles the property of strangers within the jurisdiction of a coun-
try in friendship with their own to the protection of its sovereign."
Upon this principle, Spain was held responsible for the condemnation of
American property, by French tribunals, within her dominions.
These principles will be referred to in another part of this argument.
I come now to the title itself. It has been said that it was derived from
the concurrent act of the Indians, and Spanish authorities.
The Indian title of the petitioners is founded upon two formal and solemn
acts of sale, made after consultation with the' Governor representing the Kiing
in said province, as directed in the treaty of 1793. One of these deeds was
executed in the year 1804. (See the petition of Innerarity, agent of Forbes
& Co. 5th January, 1804, and the assent of the Governor, Rec. p. -.) -
The motives for opening a negotiation for the purchase of these lands from
the Indians, to whom the petitioner states them to belong, is the payment of
a debt, the benefit to the colony, and its settlement and cultivation. The pe-
tition was granted upon condition that they should not be sold without the
consent of the Government of the colony. The object of this condition was
not to allow such a tract of land to be sold to a company of foreigners, who,
owing no allegiance to the Spanish Crown, might disturb the peace or hazard
the integrity of the Spanish dominions. The first deed of cession was made
in consideration of debts contracted, and robberies committed, in a full coun-
cil, in presence of an interpreter. This sale, and the notice which led to
it, was verified in an official decree of the Governor of the province, coun-
tersigned by his Secretary, on the 22d of June, 1804.
This deed was afterwards, to wit, on the 22d of August of the same year,
in a full council of all the chiefs, ratified and confirmed by them, in presence
of two interpreters. (Certificates of the Governor of the acknowledgment of
the chief, 5th December, 1804.)
The next paper was the certificate of the running and marking the line,
and the delivery.of possession, reciting the previous sales and deeds executed
in presence of the commandant of St. Mark's, two interpreters, and five -wit-
This sale was made in consideration of the sum of $66,533 of debts due,
and for damages occasioned by robberies committed, duly proved, certified,
and admitted.
The second sale was made in 1811, and executed with the same formali-
ties, in every respect, as the first, before the commandant of the post of St.
Mark's, the interpreters, and witnesses, for and in consideration of the sum of
$19,887 041.
The copies of these deeds are in the record, and the originals sent up by
the judge below for inspection.
The quantity of land of the two cessions is twelve hundred thousand acres,
of which eleven hundred thousand are pine barrens, such as were recently
sold in Georgia at seven cents per acre.
The consideration at that time was eighty-six thousand dollars. The prin-


cipal, interest, and expenses, connected with the title at'the date of the trial
of this case, amounted to two hundred and seventy-nine thousand and forty-
two dollars.
The Spanish Government was indebted to this firm two hundred thousand
These deeds of cession are signed by every chief then living, who signed
the treaties of 1790, 1802, 1805, and 1814, with the United States, and by a
number who never signed either of those treaties. No question has, or can
be made as to the genuineness of those deeds, or the authority of the chiefs
to execute them.
Any allegation of that kind would serve to impeach every existing treaty
of the United States with the Creek Indians.
The sale of lands which constituted a portion of the hunting grounds of the
Indians was one of those subjects which related to their security and conser-
vation," mentioned in the treaties of alliance before referred to, to the ratifi-
cation of which the assent of the Governor of the province was required.
It is confidently believed that this title could be safely placed upon this sim-
ple statement.
The deed of the Indians would have vested in the grantees a full and abso-
lute title in fee, but for those treaties which required the concurrence of the
Spanish Governor. This point will, I apprehend, be conceded, that an
Indian sale would be valid, if not forbidden by law or treaty. Indian deeds,
made prior to the British proclamation of 1763, were held and adjudged, in
the highest court of Great Britain, to convey a full and complete title to lands.
The proclamation itself proves that, without it, the power existed, and it was
to prevent its exercise that a prohibition became necessary.
There is no law of Spain or proclamation of the Spanish King interdicting
such sales.
This subject has been fully considered in the various cases before the Su-
preme Court. In the great case of the Cherokee nation against the State of
Georgia, there was a minute examination of all the treaties which had been
formed with that nation, and with the Creeks.
The review of all their provisions will show conclusively that the treaty of
1784 between the Spanish Government and these Indians is, in all its parts,
more favorable to the latter than any treaty ever made with the British or
American Governments, with the Creeks or Cherokees. It is more explicit in
its admission of the Indian right, and goes further to favor their claims to in-
dependence and sovereignty than any one of those which has been, or can be,
referred to. The question, then, of their right of property has been settled
by the Supreme Court, and the petitioners have a right to refer to that as a
conclusive adjudication upon this case. The right of property of the Chero-
kee and Creek Indians in the lands, the title to which had never been extin-
guished by treaty, under conventions and treaties much more equivocal in
their terms than this, has been decided by this court. The Lower Creeks or
Seminoles had the same title to their lands as the Upper Creeks or Cherokees,
in every respect. They had, in fact and in law, a much better title in some
1st. The limitations upon the right of disposition of the lands were not
controlled by such a proclamation as that of 1763.
2d. The laws of Spain had guarantied to them their possessions.
3d. The treaties of Spain were more favorable to them than those of Great
Britain and the United States with the Creeks and Cherokees.


4th. Their title was admitted by all the authorities of Spain andthe UUpited
States, from the date of their treaty in 1784 down to the surrender of the
provinces to the United States.
5th. Their title to the country was acknowledged by General Washington
and his cabinet, in the instructions for running the boundary line; by Mr. Jef-
ferson, in his instructions to our ministers in Spain; by Mr. Monroe, in his
correspondence with General Jackson; and, finally, by the President and Se-
nate, in the formation of the treaty of 1823, and by the present Chief Magis-
trate and Senate, by a new treaty, ratified at the last session of Congress.
It has been shown that the individuals who signed these deeds are the iden-
tical chiefs whose names are to all the treaties for a cession of land above the
Spanish line, with the addition of the head men of all the detached settle-
ments in the Floridas. Whatever may be the nature of their title, whether
of full property or occupancy, it was, for a valuable consideration, transferred
to the persons from whom the present petitioners derived title, and was passed
by them, as is proved in the record, from the first sale in 1804 up to this
date, with the assent of all the Spanish provincial officers under the royal and
constitutional government.
I have said that the right of the Indians to sell and convey lands, without
the prohibition of the proclamation of the King of Great Britain, under that
Government, or without law or treaty, under any other Government, is un-
questionable. A large and valuable tract of land, including the island of Fred-
erica, in the State of Georgia, is now held by its present proprietors under
an Indian deed made by the Creeks to Bosomworth and wife, and adjudged
to them by the highest court in Great Britain. A large quantity of lands in
Louisiana is now held under Indian deeds, made and acknowledged before
commandants of posts in Louisiana, whilst that State was a province of Spain,
the titles to which have been decided to be valid by the Supreme Court of
the State.
In an important trial of Campbell vs. Hall, in the court of King's Bench,
England, respecting the duty of four and a half per cent. imposed in the island
of Grenada by royal prerogative, the opinion that Christians have a right to
heathen countries being casually mentioned, was ridiculed by Lord Mansfield
and the other judges, as well as all the counsel present.
The papal grant of all the heathen countries to Ferdinand and Isabella
was accepted by them against the advice of all the Spanish civilians and com-
mon lawyers. De Las Casas, in a treatise, dedicated to Charles V., says:
"The natives of America, having their own lawful kings and princes, and a
right to make laws in their dominions, could not be deprived of what they
possessed, without doing violence to the laws of God as well as the law of
nations." After another papal bull, declaring the Indians rational creatures,
the humane cedulas of the King of Spain before quoted were promulgated.
Judge Blackstone, speaking of the right of migration, or of sending colo-
nists to find out new habitations, when the mother country was overcharged
with inhabitants, says: "So long as it was confined to the flocking and culti-
vation of desert, uninhabited countries, it kept strictly within the limits of
the law of nature. But (continues he) how far the seizing on countries al-
ready peopled, and driving out the innocent and defenceless natives, merely
because they differed from their invaders in language, in religion, in
customs, in government, or in color; how far such conduct was consonant
to nature, to reason, or to Christianity, deserved well to be considered by
those who have rendered their names immortal by thus civilizing mankind."
See Colony Titles, page 12, &c.

At page 24 of the same book it is said, in a note, "L'Abb6 Reynal ob-
" serves, 'that in his computation of French subjects in Canada, he did not
" include the many INDIAN ALLIES. None of these were ever considered as
"subjects, though they lived in the midst of a great European colony; the
" smallest clans still preserved their independence. It is, he says, his own
" species, it is mankind, it is his equal, that the Indian loves and respects;
" but he would hate a master, and destroy him.' "
See also the following note, at page 27 of the same book. "The learned
author of the Vindication of the Settlements of the Colony at Darien, printed
in London, in the year 1699, observes, 'that the native proprietors and pos-
" sessors of a country are vested with a power inherent in themselves, by
" which they may rightfully and authoritatively, without being accountable
"to any other, admit and receive strangers, foreigners, aliens, and others,
" into their territories, and within their own proper and peculiar jurisdictions,
" and allow them the privilege and right of settling, inhabiting, and trading
" among them; for it is one of the first principles, both of the laws of nature
" and nations, that they who are the original and primitive proprietors of a
" country and soil, may admit, welcome, and take in others, into the inhabit-
" ing, planting, cultivating, and improving the same; but no man can give,
" dispose, and alienate to another, that which he neither has in posses-
" sion, nor can pretend any legal claim of title and right unto; which the
" Pope both betrayed his pride and folly in doing, when he took upon him
" the granting of all the West Indies to the King of Spain, being therein ri-
" diculously liberal of that which did no ways appertain to him.' "
We are not left, however, to the speculative opinions of theoretical wri-
ters on the subject, however just their views may be. A case precisely of
the character now before the court actually occurred, and was made the sub-
ject of grave discussion, as early as the year 1768. The six nations of Indi-
ans made a conveyance to Wm. Trent, one of the traders, which is thus de-
scribed at page 98 of Colony Titles," by a counsellor Dagge, who gave his
"A requisition was made to the six united nations in May, 1765, for a
grant of land, by way of compensating, in some measure, for the damages the
traders had sustained by the depredations of their dependent or tributary
Indians; that the six nations, after deliberating from the 2d of May, when
this requisition was made, to the 6th of May, they agreed that the request of
the traders should be complied with, and they would grant them some lands
near Fort Pitt; that at the congress and treaty in November, 1768, held at
Fort Stanwix, the chiefs and sachems of the six united nations again took this
matter under their consideration; and upon the first day of that month ex-
pressly declared, that 'in order to show that they love justice, they expect-
" ed that the traders who suffered by some of their dependants, in the war
" five years since, might have a grant for the lands, they then gave them
" down Ohio, as a satisfaction for their losses.' "
On the 3d day of the same month of November, the six nations, by their
sachems and chiefs, executed the conveyance to Mr. Trent, which proceeds
upon a recital, that he had been empowered by several letters of attorney
from the suffering traders, named in the said deed, to ask, solicit, demand, and
receive from the six nations a grant of a tract of land, as a satisfaction, com-
pensation, and retribution for the goods, merchandise, and effects of the said
William Trent, and of the several traders, which the said Shawanese, Dela-
ware, and Huron tribes, tributaries of the said six nations, (contrary to all


good faith, and in violation of their repeated promises of safety and protec-
tion to the traders, their servants, and effects, while trading in their country,)
did violently seize upon, and unjustly appropriate to their own use.
"The deed then declares, that in consideration of the sum of 85,916 Is.
8d., lawful money of the province of New York, the same being the amount
of the goods and merchandise which were unjustly seized and taken from
the traders as aforesaid, whereof just and fair accounts, on oath and affirma-
tion, had been produced, interpreted, and explained to them, and which, at
their desire, were then lodged and deposited with the said Sir William John-
"The chiefs and sachems of the said six united nations, for the said consider-
ations, and in consideration of five shillings, did give,,grant, bargain, and sell
unto His Majesty, his heirs, and successors, to and for the only use, benefit,
and behoof of the said Wm. Trent, in his own right, and as attorney afore-
said, all that tract of land described in the conveyance; to hold unto His Ma-
jesty, his heirs, and successors, but to and for the only use, benefit, and be-
hoof of the said William Trent, in his own right, and as attorney aforesaid,
his heirs and assigns, forever. This deed of conveyance seems to have been
executed in the most public manner, in the presence of the King's Governor
of New Jersey, and the commissioners from Virginia and Pennsylvania, and
several other persons, who attended the congress, and attested the execution
of this conveyance, which, by that means, received every degree of solem-
nity and sanction.
"' On the 5th day of the same month of November, 1768, the said chiefs
and sachems executed their deed of cession to His Majesty, of a large tract of
country upon the river Ohio. In this deed of cession, the Indians expressly
stipulated that their present grants (which words are explained in the minutes
of Congress of Nov. 5, where the traders' deed is mentioned, with the other
grants then made,) 'should be deemed valid on their parts,' and they con-
vey to the King, not only in consideration of the present then made, and the
money then paid by the King, amounting to 10,467 7s. 3d., but also for the
other considerations in the deed before mentioned; and the habendum is to
the King, his heirs, and successors, under THE RESERVATION MADE IN THE
TREATY; so that the deed of cession to the King virtually confirms the con-
veyance to Mr. Trent.
Upon the whole, I am of opinion that Mr. Trent, in his own right, and
as attorney for the traders, hath a good, lawful, and sufficient title to the land
granted by the said deed and conveyance, subject only to the King's sove-
reignty over the settlements to be established thereon, and over the inhabit-
ants as English subjects. "HENRY DAGGE."
Sergeant Glynri thus concurs with counsellor Dagge: "I entirely concur
with Mr. Dagge, in his opinion on this case. The property of the soil con-
veyed to Mr. Trent, for himself, and as attorney, was certainly in the six na-
tions, and, as incident to that property, they had a power alienating and trans-
ferring, in afiy manner, or to any persons, unless they had been restrained by
their own laws. In this case, the supreme power of the country resided in
the sellers, who had therefore an absolute power of alienating; and the trans-
action being fair and open, and for the express purpose of doing an act of
public justice, must bind the six nations in good faith. If we suppose that
the sovereignty of the land still remains in the six nations, the property of the
soil must be in the grantee, Mr. Trent, and cannot, without violence and in-
justice, be taken from him."


Dr. Franklin was called upon for his opinion, which he gave in 1775, on
this subject, thus: Having long since carefully studied these points, I concur
fully with counsellor Dagge and Sergeant Glynn, in their opinions above de-
And Patrick Henry thus concurred: "From principles which appear to me
very clear, Iconcur in the above opinions."
The conveyance in this grant to the Crown for the use of Trent became
necessary, from the British proclamation before referred to; but without such
a proclamation no one can doubt but that the title would have been valid.
The deed in that case was executed in presence of the Governor of New
Jersey, as that of the claimants in this case was before the Governor of West
Florida. The language of the proclamation of 1763, before referred to, is
as follows:
"We do hereby strictly forbid, upon pain of our displeasure, all our loving
subjects from making purchases or settlements whatsoever, or taking posses-
sion of lands above reserved, [referring to all such as had not been purchased
from'the Indians,] without our special leave or license."
The conveyance of the Indians to the Crown, for the sole use of Trent,
was intended to avoid this provision, and without it the sale would have been
made to him directly.
This is not the only case in which the same thing was done. In a work
entitled Colony Titles," in that portion of it called plain facts, page 64, it is
said: "Here it may not be useless to remark, that the Cherokee and Creek
nations of Indians, being indebted to the English traders in greater sums than
they could pay in peltries, and being desirous to discharge their debts, they,
at a treaty held in May, 1773, at Augusta, in the province of Georgia, with
Mr. Stewart, superintendent of Indian affairs for the Southern Department,
and Sir James Wright, Baronet, then Governor of that province, fixed a boun-
dary line by treaty, and sold to the King of England all the territory com-
prehended within certain limits, described in the deed of cession; and, at the
same time, ceded and granted to the said King a considerable tract of coun-
try upon the frontiers of Georgia, on purpose that the same should be sold,
and the proceeds of such sale be appropriated to the payment of their debts
to these traders; and the Governor and Council of Georgia were appointed,
by His Britannic Majesty, to sell the lands in question; to settle the respect-
ive claims of traders, and discharge the same out of the produce of said sale,
conformable to the design of the Indian grantors."
Five years after the date of this proclamation, in the year 1768, a grant
was made by the six nations to Sir William Johnston for the Crown of Great
Britain, in which it was recited that the chiefs and warriors of our respect-
ive nations, who are the true and absolute proprietors of the land in ques-
tion," &c.
A similar grant to that of Trent was made to George Crongham.
A few years after this, in the year 1773, a grant was made by the Creek
Indians, at Augusta, in the State of Georgia, for the purpose of being sold to
pay the Indian debts to the traders.
Various negotiations, of a similar character, for the cession of lands on the
Escambia river, in Florida, are described at pages 116, 161, 171, and 174
of the first volume of the correspondence between the British ministry and
the Governor of West Florida.
In fact, nearly every treaty made by the British Government before the
revolution, or by the States since, contains stipulations for a cession of lands

to the Government, upon which they agree to pay the debts due to the traders,
or the damages occasioned by the depredations of the Indians.
The United States have, in various treaties with the Northeastern and
Southwestern tribes of Indians, done the same thing.
As early as the year 1778, and in various treaties since that period, the
United States have undertaken to regulate commerce with the Indians; and
in the treaty of that date with the Delawares, they recognized and approved
of Clark's grant." In the year 1788, they again approved of sales of lands
made by the Indians to individuals; and, on the 30th of June, 1802, sales
from the Senecas to Oliver Phelps and others were ratified.-(See book of
Indian treaties, laws, &c., pages 33, 37.)
It may be affirmed, as a fact established by all our treaties with the In-
dians, that the Government of the United States have received their lands,
and assumed the payment of their debts to the merchants and traders, and
have undertaken to make compensation for the injuries occasioned by robbe-
ries. In the 2d article of the treaty of the 16th November, 1805, with the
Choctaws, (p. 165,) the United States agree to pay the sum of forty-eight
thousand dollars, to discharge the debt due by the said Choctaws to traders
and merchants, and to pay for depredations committed by evil disposed per-
sons, &c. A treaty with the Chickasaws, dated 23d July, 1805, begins with
this recitation: Whereas, the Chickasaw nation of Indians have, for some
time, been embarrassed by heavy debts to their merchants and traders," the
United States agree to take their lands and pay their debts. In another
treaty, of 1818, there was the same provision.
The United States have not only indemnified their own citizens in this way,
but, by treaty of the 22d of September, 1817, they stipulate to pay all the
Indian tribes friendly to them for their losses in the late war. (Book Indian
treaties, 92.) The United States (at page 216 of the same book) agree to
pay to the citizens of Georgia, for their losses by the Creeks, prior to 1802,
two hundred and fifty thousand dollars. They again, by treaty with the Sacs
and Foxes in 1804, made indemnity to the American traders out of their an-
nuity; and with the Osages, in 1808 and 1818, take lands, pay debts, and
make indemnities for losses occasioned by Indian depredations. So late as
1814 the United States pay debts and make indemnities to individuals for the
losses occasioned by the Quapaws. In 1825 they agreed to pay the debt of
the Osages to the Delawares, and their debts to white persons.
Having assented to an outline of the treaties entered into between the
Creeks and the United States, from the year 1790 to 1830, in all of which
the Government acknowledged their right of soil, it may not be uninterest-
ing to trace their relations with the Government of Georgia prior to that
time. After the conclusion of the war, the State of Georgia negotiated three
treaties with them: one at Augusta, in November, 1783; one at Galphinton,
12th November, 1785; and the third at Shoulderbone, 1786. In all of these
treaties the State of Georgia acknowledged the right of soil in the Indians.
These treaties were resisted by the Creeks, on the ground of having been
negotiated by incompetent persons, and forced upon them by duress. Neither
persuasion nor threats, on the part of either Government, could induce the
Creeks to agree to them; and the war was continued against Georgia, until,
by the treaty of 1790, they were annulled, and peace restored.
This title, then, it is apparent, is in accordance with the established usages
of the several Governments who have had transactions with the Indians.
There is no difference of principle between a sale in lands to the Government

for the indemnification of traders, and a grant directly to the traders for the
same purpose. Indemnity is the object, whether effected in a direct or indirect
The Spanish Government had more land than it could give away, and pre-
ferred, therefore, not to become responsible for the Indian debts, but to au-
thorize a sale of lands in payment of the debts. The King of Spain was
bound to indemnify these merchants for losses; and as the treasury of Spain
was much embarrassed, the question of whether it was better to do it by a
direct cession to the House, or to the King, was a matter solely and exclu-
sively for the determination of Spain, the Indians, and the parties concerned.
The United States have no right in law, or equity, to question that which
was satisfactory to them.
The practice of the Spanish Government in permitting sales of lands by
the Indians directly to individuals before commandants of posts, in all the
provinces, is as clearly proved by history as their rights were acknowledged
in their laws. Cases are to be found in Missouri, Illinois, and Louisiana. I
annex a list, taken from the General Land Office, of thirty-one sales in two
counties. These sales were made the subject of judicial investigation in
Louisiana, and were decided to be valid by the highest court of the State.
(Martin's Reports, new series.) They have all been confirmed to those who
derived titles from the Indians. I annex the list showing the practice from
the year 1784, down to 1805.

GENERAL LAND OFFICE, February 6, 1833.
SIR: Agreeably to your request, I enclose a copy of the schedule of Indian
sales in Louisiana, [see schedule A. annexed,] which forms part of the report
of the Board of Commissioners at Opelousas upon that subject, with the re-
quired statement at the foot thereof, referring to the printed record, in the
case of Colin Mitchell and others vs. the United States. The schedule, cer-
tified by the register at Opelousas, is herewith returned.
I am, very respectfully, sir, your obedient servant,
The Hon. JOSEPH M. WHITE, Ho. of Reps.

The Indians in Louisiana were the mere fragments of powerful tribes,
which were nearly extirpated by the French. Those east of the Mississippi
were Houmas, and those west were Chitimachas and Bilkies, Alabamas and
Conchates, in the parishes of Attakapas and Opelousas, being only about
one hundred in each parish.
The Indians in Michigan, on the rivers Detroit and Raisin, sold their lands
and passed their deeds before British and French commandants. The British
ordinance of 1763 did not include Canada, and their titles have been recog-
nised as valid.
In Raboul vs. Nero, 5 Martin, 490; and Martin vs. Johnston, ibid. 655, it
was decided, that tribes of Indians, to whom lands were allotted by the Spanish
officers of Louisiana, in pursuance of the laws of the Indies, acquired a legal
title to the soil; that they were in every respect as completely owners of it
as those who held under a complete grant, although, being considered in a state
of pupillage, the authority of the public officers, who were constituted their
guardians, was necessary to a valid alienation of their property. Laws of the
Indies, lib. 4, tit. 12, 1. 13, & lib. 6, tit. 3, law 8.
One who holds land by purchase from the Indians, by a private sale, ap-

_ _____

proved by the Governor of the province, cannot be disturbed, on the ground
that the sale was not by auction, by a person who does not claim under them.
Martin vs. Johnston, 5 Martin, 655.
If a sale by the Indians was followed by a payment of the price and de-
livery of the property, no person can take advantage of an informality in the
mode of making it, but the Indians. The nullity is relative. Spencer's heirs
vs. Grimball, 18 Martin, 355.
I have said that the existence of this firm ofPanton & Co., and John Forbes
& Co. its objects, trade, losses, and relations, were known t the United States.
In a letter of the American agent, James Seagrove, dated 8th of September,
17.92, to the Secretary of War, (American State Papers, vol. 3, p. 811,) the
agent says:
I think if the Spanish court were pushed in the business, they will
readily sacrifice Panton & Co., especially as they owe the concern nearly two
hundred thousand dollars for Indian supplies.
The advice of this honest agent to his Government to push a foreign power
to sacrifice a mercantile firm because they were indebted to it, did not succeed
with Spain.
The King of Spain, though pushed by many agents, never sacrificed this
respectable house; but the question whether those claiming under a valid grant
made to them are to be sacrificed by the Government of the United States
in the same spirit, depends now upon the decisionof this court.
In the same book, p. 36, the Secretary of War, in a letter of the 5th of
September, 1793, says: The connexion of the Spaniards by treaty with the
Creeks is probably known to you. Circumstances arising out of that con-
nexion are now the subject of negotiation at the court of Madrid."
This negotiation ended in the treaty of '95, which admitted the existence
of treaties of alliance of the Indians and Spaniards, which treaties the United
States obliged themselves to execute in the convention of 1803.
Seagrove, in another letter, of April, 1793, at page 380, addressed to
" Mr. Payne, head chief of the Seminole tribe of Creek Indians at Locha-
way," regrets not having met the chiefs, as he thinks it would have been ser-
viceable to our respective countries.
At page 382, same book, will be found a talk delivered to the Indians in
1793 by Barnard. After some complaints against the English, he proceeds:
" Had it not been for our friend, M'Gilvery, and Mr. Panton, who obtained
liberty from the King of Spain, by paying ten thousand dollars per annum,
to bring goods from their land, (English,) you would have been very poor,
and your women and children naked."
At page 668 of the same volume will be found a message of Mr. Jefferson
to the Senate, communicating the treaty of 1802, with the Creek Indians,
in which he says: I lay before you a treaty, which has been agreed to, &c.,
for the extinguishment of the native title to lands, &c., of Creek Indians."
The Secretary of War, in a letter dated Sept. 14, 1802, to Gen. Wilkin-
son, says: The influence, most to be apprehended as unfavorable to our
views, will probably be ,that of the house of Panton and others."
Hawkins, the Creek agent, in a letter to the Secretary at War, dated 3d
of November, 1804, speaks of a contemplated purchase, its price, &c. $500
to each town forever; and the payment of the debts due, after the dis-
charge of such in contemplation at the sale, to Mr. Forbes."
As early as the year 1804, this sale to Forbes was known to the American
agent, and communicated to his Government.

.__ ------ --a---- -L -r~-`r2~-----~--

In the year 1806, a correspondence was opened between John Forbes and
General Dearborn, which correspondence was communicated to Congress,
and is published in the third volume of American State Papers, folio -. The
letter of the 5th of Sept. 1806, page 750, refers to one previously addressed
to the United States' Government, 2d of May, 1804. In the first-named let-
ter, Mr. Forbes informs the Secretary at War: I treated for, and obtained
from the Seminoles, as an indemnification, a tract of land lying within the
Spanish limits, for the cession of which, according to the Indian laws, they
were fully competent; by which means my general claims against the nation
were reduced within $40,000. This bargain, I do assert, was as fair a pur-
chase as ever was made from red men since the treaty of William Penn,
and has been formally ratified in presence of the King of Spain's represen-
The Secretary of War, at that time, did not question the right of the In-
dians to sell, nor of the King's representative to ratify the sale. It was then
Spanish territory. When it came into the possession of the United States
the case was altered.
In this same letter Mr. Forbes informs the Secretary of War that the firm
" will have no objection to give up the land purchased of the Seminoles for
what it cost."
The land, too, has become more valuable; and the title is impeached be-
cause of that value.
Gen. Dearborn did not question the sale, or its consideration, or the right of
the grantors, but expressly conceded the point by his answer. The Government
of the United States had engaged to assist in the collection of the debts of the
firm, upon condition of their exerting their influence to aid in the treaties of the
Creeks with the United States. This influence was used, and the treaty made;
and the United States claimed a release of their promise, by saying, in this
letter of the 12th of Nov. 1806, page 751: The Creeks absolutely refused
to accede to any request to have provision made in the convention for the
payment of the balance due from them to your house; and observed that a
great partof your debt had been paid by lands sold to your house in Florida."
The Secretary of War either thought the sale a good one, or he did not. If
he did not, he had no right to plead it as a release from the obligation to see
Forbes & Co. indemnified. The United States, in 1806, acted upon the
principle that it was a valid sale, made by a competent authority. The sale
was notoriously made in 1804. The Indian confirmation was made in 1805.
When Mr. Adams saw, in the records of his own Government, that the admi-
nistration of 1806 acknowledged the validity of that sale, if he had questioned
it himself, it would have been made the subject of negotiation.
To this title two objections are made by the United States:
1st. That the largest portion of the land is east of the Appalachicola river,
and in the province of East Florida.
2d. That the Governor of West Florida had no right to ratify and confirm
an Indian sale in East Florida.
To these objections the answer is simple and obvious.
By the proclamation of the King of Great Britain in 1764, when he created
the colonies of East and West Florida out of the territories he had acquired
by the treaty of the year preceding, the Appalachicola river was declared to
be the boundary between these two British colonies. This river did consti-
tute the boundary between the two provinces during its occupation by Great
Britain. In 1783, the two Floridas were ceded to Spain. The whole terri-

stories were en masse incorporated into the Spanish dominions. His Catholic
Majesty became the legal sovereign of the Floridas, without any motive or
obligation to respect the geographical or political divisions of the Government
to whose rights he succeeded. There is no principle of the laws of nations,
or of the laws of Spain, which requires one sovereign to- continue the boun-
daries of provinces, or to limit the jurisdiction of officers to those established
by other powers.
There is no treaty, law, proclamation, or local ordinance, declaring the
Appalachicola river the limit of the jurisdiction of the Governor of West
Florida. This fact, of itself, is conclusive; and if the United States wish to
repel the presumption arising from the actual exercise of jurisdiction, it is in-
cumbent upon them to show the limit by Spain, and not by, Great Britain.
In the year 1784, immediately after the cession to Spain, the Lower
Creeks and Seminole Indians, residing east of the Appalachicola river, were
called to Pensacola, to make a treaty with the Spanish authorities.
Pensacola was then established by Spain as the seat of Government for
conducting all the Indian affairs east of the river Appalachicola. In the
treaty of '93, before referred to, it was stipulated that the Lower Creek and
Seminole Indians east of that river (as they all did) should consult the Gov-
ernor of that province, (West Florida;) and it was further agreed that the
Indian presents and annuities should be made there. In the execution of the
treaty of San Lorenzo el Real, in the years 1798-9, when difficulties oc-
curred with these Indians, fifty miles east of the Appalachicola river, all the
parties corresponded with the Governor of West, not East Florida, in relation
to them; and claimed his interposition and authority. These facts prove
that from the acquisition of the Floridas by Spain, the territory east of that
river, and the people who inhabited it, were under the jurisdiction of the
Governor of West Florida.
The king, in a royal despatch, (Rec., p. 197,) as early as the year 1787,
gave an order to the Intendant General of Louisiana for the establishment of
the military post of St. Mark's. West Florida was a dependency of Louisiana,
and East Florida of Cuba.
If His Majesty had intended to place that part of his newly acquired domi-
nions under the jurisdiction of the Governor of East Florida, the order would
have been transmitted, through the Government of Cuba, to the Governor of
East Florida. The order was given to the Intendant General of West Flo-
rida, and the negotiation and extinguishment of the Indian title for the site of
the post of St. Mark's was made under the authority of the Governor of West
At page 202 of Rec. will be found evidence that all orders were given, all
accounts settled, and correspondence carried on between the post of St.
Mark's and the Government of Louisiana and' West Florida; proving [incon-
testably that the post was under the jurisdiction of these Governments, and,
of course, the intervening territory between St. Mark's and Pensacola.
It would have been a great folly and absurdity to make a post dependent
on one Government, and permit another Government to have jurisdiction of
all the contiguous territory. (See also the official statement ofBetancourt, Rec.
p. 203.)
In an official letter of Zespides, Governor of East Florida in the year
1786, it is stated that the district of St. Mark's de Appalachie shall depend"
on the Government of West Florida, by order of the most excellent Count

de Galvez, Captain General, on account of its neighborhood to that juris-
diction, and distance from this place," (St. Augustine.)
The Count de Galvez was Captain General of Louisiana, and conquered
West Florida in 1781. He became Captain General of the two Floridas
after their acquisition in 1783, and continued so until East Florida was an-
nexed to the Captain Generalship of Cuba. 'At page 454 is to be found a
report of the Surveyor of West Florida, in which he states the fact of the
exercise of jurisdiction by the Governors of West Florida over the territory
between the Appalachicola and St. Mark's rivers, "no doubt by superior dis-
In confirmation of the letter of Zespides, Governor of East Florida, before
referred to, at pages 305, 306, of the Rec., will be found a letter of Miro,
Governor of Louisiana and West Florida, reciting a royal order, approving
the order of Galvez, Captain General. The commissions of Galvez and
Miro are to be found in the printed documents sent to the court last year
from the Department of State. In addition to this documentary evidence of
the annexation of that territory to the province and Government of West
Florida, and to the actual jurisdiction over the same, the fact is stated that
all the accounts of the garrison of St. Mark's were settled by the Government
of Louisiana and West Florida, which proves that it was a dependency of
that province. (See also the testimony of La Rua, Cruzat, Alba, and Brack-
enbridge, from page 597 to 614 of the Record.)
If the Appalachicola river became the boundary of the jurisdiction of the
two Spanish provinces of East and West Florida, because it had been so un-
der the dominion of Great Britain, and continued so in the possession of
Spain, there was no reason why they should be changed in the possession of
the United States. General Jackson, the first Governor of Florida, without
an act of Congress, extended this jurisdiction of the Governor and Court of
West Florida to the Suwanee river, east of St. Mark's. If it was competent
for him, acting as Captain General of Florida, to change the jurisdiction of
the provinces after their cession by Spain to the United States, it was equally
competent for his predecessor, the Count de Galvez, Captain General,
to change the jurisdiction after the transfer of the Floridas from Spain to the
United States.
It is alleged by the agents of the United States, that the Governor of the
province had no authority to confirm this Indian sale, because, by a royal
order of the King of Spain, the power to concede royal lands was conferred
upon the Intendant in 1798.
The order referred to will be found in White's Com. p. 218, and is dated
at San Lorenzo, 22d October, 1798. This order speaks of the power of
granting and distributing the King's lands in the district," and declares that
the power of granting all kinds of lands be restored to the Intendancy. The
King himself, as has been shown by the laws and treaties of Spain, could
not himself grant Indian lands, and the authority given to his Intendant was
of course confined to royal lands, to which the Indian title had been extin-
guished. This order was communicated to Don Juan Ventura Morales,
whose regulations refer to and are founded upon it. The Intendant re-
cites this order as the only foundation of his authority. (See White's Com.
page 208.) The proclamation of the Intendant commences thus: "The
King, whom God preserve, having by his decree given, &c. 22d October,
1798;" given the Intendancy the privilege of dividing and granting "all
kind of land belonging to his crown." The royal ordinance speaks of the

"King's lands," and the proclamation of the Intendant of land belonging
to his crown."
The simple answer to this objection, which is deemed so formidable by the
counsel of the United States, is, that the land claimed by the petitioners was
neither the King's lands," nor the land of his crown;" and, therefore,
according to his ordinance, and the construction of his Intendant, no power
or authority was conferred upon the Intendant, either to divide, grant, or
ratify an Indian sale. The Intendant himself, not only se construed it, but,
in the 31st article of his regulations, (White's Com. p. 215,) he declares:
"Art. 31. Indians who possess lands within the limits of the Government
shall not in any manner be disturbed; on the contrary, they shall be pro-
tected and supported; and to this the commandants, syndic, and surveyors
ought to pay the greatest attention," &c.
The Intendant here disclaims all right himself to interfere with Indians who
possess lands within the limits of the Government; and he enjoins it upon
those charged with Indian affairs, under the laws and treaties, to, protect
them. This is in exact conformity with the laws and treaties referred to,
and is another practical illustration of their' views of the relations between
the Indians and Spain.
In all the Spanish law books, official reports, maps, and histories, lands
belonging to the Crown, and those of the Indians, are distinguished as
"tierras realengas," (royal lands,) and "tierras de los Indios," (lands of
the Indians.)
It will be further observed, that of thirty Indian sales made in Louisiana,
and now held by no other title, sustained by the courts, and ratified by the
United States, twenty-nine were made between the royal ordinance of 1798
and 1805, and in every instance ratified and approved by the Governors and
commandants, and not by the Intendant. This high officer was the Intendant
General of the province from 1798 to 1805; having, as it is alleged, power
to grant "all kinds of lands;" and he permitted twenty-nine Indian sales to
take place without his ratification, and no one has ever yet discovered a
defect in the title in the State of Louisiana. These titles were controverted
in the Supreme Court of that State, by the ablest civilians at the bar of New
Orleans, and no one ever suggested such a difficulty. Don Juan Ventura
Morales went to Pensacola in 1806, and was actually exercising the func-
tions of Intendant in that place, when Governor Folch confirmed this Indian
sale. Morales was a man of imperious temper, and great ambition for
power, the enemy of Folch, who, after the cession of Louisiana, haddisput-
ed his right to the Intendancy of West Florida. This man, thus constituted,
must be considered the submissive and acquiescent witness of a series of
systematic usurpations and encroachments upon his authority from the year
1798 to 1806, during which period no less than thirty cases occurred, in
which Indian sales were confirmed without his authority or approbation.
Folch wis continued as Governor to 1812, when the'constitutional Govern-
ment was established, and then promoted to the rank and honor of marshal-
de-camp. Morales was dismissed in disgrace, in 1809 or '10, from the
service of His Catholic Majesty. I have said hp was not a man who would
silently submit to any encroachments upon his official prerogative, but rather
assume the authority of others. He was the Intendant whose decrees at
New Orleans, in relation to the commerce of the United States, occasioned
so much discussion between the' two Governments, and whose conduct was
finally disavowed by His Catholic Majesty. The maxim of the civil law, and

the rule of implication, are as applicable to nations as to individuals. Morales
the Intendant was cognizant of the Indian sale and the Governor's ratifica-
tion. The Intendant neither annulled nor forbade the sale, because he knew
that the Governor of the province was the political, representative of the
King; the person designated by the laws of Spain as the protector of the
Indians, and, in the treaties before referred to, as the person designated to
give his consent to any thing relating td the conservation and security of the
As this, however, is deemed a point of great importance by the counsel of
the Government, it may be proper to go into the subject of the nature of the
offices of Intendant and Governor. The Intendancylis the fiscal department
of the provincial Government; it is the royal treasury of that jurisdiction,
and the Intendant is comptroller of the accounts of the army and finances,
and judge of admiralty, and superintendent of customs.
From the year 1735 to 1754, the civil and military Governors and Vice-
roys had the power to grant lands, subject to the royal approbation. Sub-
sequent to 1754, this power was conferred upon the same officers, to make
grants subject to the confirmation of the Audiencia. But in remote colonies,
such as Caraccas, Havana, and others of like situation, and others where the
sea intervened, Governors were allowed to make grants and issue confirma-
tions. See opinion Supreme Court United States ads. George L. F. Clarke,
8 Peters; see ordinance of 1754, White's Com. p. 53.
A civil and military Governor, it has been said, is the political yepresen-
tative of the King in the province. He is commander of the army and navy,
the supreme civil and criminal judge, keeper of the archives, and superin-
tendent of Indian affairs. He is vested with power to grant lands for culti-
vation, and as rewards for services rendered to the province,
His Catholic Majesty was informed that in the United States the public
lands were sold for two dollars per acre, and this was the motive for confer-
ring upon the Intendant, who was charged with the treasury department, the
power to sell and grant crown lands, with a view to the augmentation of the
royal revenue. The ordinance was confined to this one point. The Intend-
ant was substituted for the Governor for that one object only, and could not
interfere with any other duty confided by law or treaty to the Governor of
the province.
In the year 1803, immediately after the acquisition of Louisiana, Mr. Jef.
ferson caused a report to be made, by the most eminent civilians, of the con-
dition of the province.
The papers thus collected were sent to the State and Treasury Depart-
ments, and from them a compilation made and printed.
In this work it is said:
The Governor's court has civil and military jurisdiction throughout the
The tribunal of the Intendant has cognizance -of admiralty and fiscal
causes, and such suits as are brought for the recovery of money in the King's
At page 39 it is stated: The executive officers appointed by the Gov-
ernor for each district of the province are called commandants.
Where there is a garrison, the commandant is subdelegate of the Inten-
"Page 40: The Governor is president of the cabildo, or provincial council.
He appoints and removes at pleasure the commandants of districts. He ap-
points officers of the militia. He is superintendent of Indian affairs."

Page 41: The Intendant is chief of the Departments of Finance and
The Spanish laws have created the same divisions of power and jurisdic-
tion between the Intendant and Governor, as that which exists in this coun-
try between the Treasury and War Departments. It would be as absurd to
contend that the ordinance of 1798 confers power upon the Intendant
to interfere with the Indian lands, as it would be to say that the act of Con-
gress placing the Land Office under the control of the Secretary of the Trea-
sury took away the previous right conferred by law upon the Secretary of
War to negotiate treaties, protect Indians, and regulate our affairs with
The Governor was superintendent of Indian affairs; and this transaction
grew out of Indian relations, which it was the duty of the Governor to settle.
Besides, the Governor's office was the depository of the deeds of the country,
and the proper place for the Indian conveyances.
The grant of East Florida, so far from being pleaded in derogation of the
right of these petitioners, proves that the practice of the country was in con-
formity with the principles established.
Before the Intendant made the grant to Arredondo & Son, he required
proof that the lands had been abandoned by the Indians; and notwithstand-
ing that proof, he granted it, without prejudice, to the native Indians, who
might desire to return and re-occupy the lands. The Indians had been ex-
pelled and nearly extirpated in the Alachua in the years 1812 and 1814.
In another case mentioned in the Record the Intendant annulled a grant made
in the Indian territory.
It has been shown that the Intendant Morales was at Pensacola, cognizant
of the sale and confirmation. The principles of law on this subject are well
There is also an implied as well as an express assent; as where a man who
" has a title, and knows of it, stands by, and either encourages or does not
" forbid the purchase, he shall be bound, and all claiming under him, by it."
-1st Fonblanque, 163.
There is no principle better established in this court, nor one founded on
more solid considerations of equity and public utility, than that which de-
clares that if one man knowingly, though he does it passively by looking on,
suffers another to purchase and expend money on land, under an erroneous
opinion of title, without making known his claim, he shall not afterwards be
permitted to exercise his legal right against such person. It would be an act
of fraud and injustice, and his conscience is bound by this equitable estop-
pel. Qui tacet consentire videtur: qui protest et debet vetare jubet.-Per
Kent, chancellor, in Wendell vs. Van Rensselaer; 1st John's Chancery
Rep. 354.
It is a rule of equity that where one having title acquiesces, knowing and
freely, in the disposition of his property for a valuable consideration, by a
person pretending to title, and having color of title, he shall be bound by that
disposition of the property; and especially if he encouraged the parties to
deal with each other in such sale and purchase.-Per Kent, Chancellor, in
Storrs vs. Barker, 6 John's Ch. Rep. 168.
If a thing be sold or alienated to a man in possession of it, with the know-
ledge of the owner, who does not oppose the sale, the former will acquire the
lawful possession thereof, in the same manner as if it had been delivered to
him by the owner himself.

If a man who alienated an immoveable thing, knew, or had good reason
to believe, that he had not a right to do so, then the person who received it
cannot acquire it by prescription in less than thirty years, unless the owner
knew of the alienation, and did not demand it within ten years from the day
he knew it, if he were in the country, or within twenty years if he were out
of it; for then the person who received the thing might acquire it by pre-
scription, in one of the aforementioned periods of ten or twenty years.
If one person receive of another an immoveable thing in good faith, either
by purchase or exchange, or as a donation or legacy, or by any other just ti-
tle, and keep possession of it during ten years, while the owner was in the
country, (tierra,) or twenty years while he was out of it, such person will ac-
quire the thing by prescription, notwithstanding he received it from one who
was not the true owner; and he will not be obliged afterwards to answer
therefore to any person who should say he could prove he were the true pro-
prietor of the thing, and that he was ignorant the other had acquired it by
prescription. And what we say in this law applies where he who alienates
and he who receives the thing act in good faith, believing that they had a
right to do so, and the latter retains peaceable possession of it; so that it is
not demanded of him during the whole time necessary to require it by pre-
He who acquires an immoveable in good faith and by a just title, prescribes
for it in ten years, if the real owner resides in the State; and after twenty
years, if the owner resides out of the State.
The petitioners took possession of the land in 1804, and remained in quiet
possession ever since. The depositions in the Record show that there are a
number of individuals upon the land, holding under the grantees, and purcha-
sers from them.
That the King of Spain was notified of all that was done in relation to
this sale and confirmation cannot be questioned. This fact, in the absence
of proof, would be presumed in ordinary cases. But when reference is made
to the laws of Spain, enjoining such information to be given, the comity of
nations requires of us the conclusion that what the laws of a foreign country
prescribed was executed by the tribunals of that country.
In book 3, title 14, ley. 13 of the Las Leyes de las Indias" it is provided:
"We command the Viceroys and Presidents on all occasions to transmit to
us specific and particular information who expect rewards for services ren-
dered, with the qualifications and circumstances of each, and for such per-
sons as they may have rewarded, and the motives for doing fo."-Wh. Com.
page 31; book 4, title 6, ley 7, Laws of Indies.
The Viceroys and Presidents shall keep a secret register of rewards,
"where shall be recorded for reference the names of all persons applying,
with a summary account of their merits and services, together with what they
shall do to reward them, and their motives for the same; all which shall be
signed by them, and certified by the Secretary of Government. Each year
they shall transmit to our council a statement of all that they have done in
the year."
We have seen that a Governor of a province is president of the Cabildo or
Provincial Council, and one of the persons here designated. We have also
seen that in distant provinces, where the sea intervenes, Governors shall
issue confirmations.
The King must have been informed in 1807 and in 1812 of the cessions of
land to the house of Forbes & Co. under this law.

Omnia rite et solemniter esse acta done prohibetur in contrariam, pre-
sumuntur. The courts of Louisiana have never permitted a re-examination
of a case decided under the Spanish Government. This question was raised
and decided by Governor Jackson, exercising the functions of Captain' and
Intendant General in Florida, in the case of Vidal, 3d voL Ex. Doc. 1821-2,
page 50 of Doc. 42. The Governor, in his opinions in answer to suggestions
of the learned counsel that some forms prescribed by Spanish laws had not
been complied with says:
Again, even supposing all these formalities necessary, it is an act of comi-
ty due from one court to another to presume that all necessary preliminary
steps were taken." Again: "The law by which this court is bound will
presume the fact."
The Governor who ratified in the King's name this Indian sale, of which
there can be no doubt but that the King was advised, was also subjected to
that process of the Spanish law called residencia, which was the official in-
quiry into and judgment upon his administration. After this process, the
same Governor was promoted to the rank of marshal-de-camp, and died in
the King's service.
Governor Folch, in his testimony in the Record, proves that he had author-
ity to ratify this sale; that it was made known to his superiors, according to
law, and by them approved.
Don Benigno Calderon, the Secretary of Government, who was so much
complimented for his honesty and high character by the counsel of the Uni-
ted States at the last term of the court, states the same thing; and adds, that
the proceedings of the Governor were approved at the time by the superior
authorities of Spain.
These sales were again ratified and approved by the Captain General of
Cuba, with the advice of the King's Attorney-General, (Asesor,) upon the
petition of Colin Mitchell to be permitted to purchase.
Every sale under the civil law, passed before a governor or judge, is con-
sidered equivalent to a judicial sentence upon the validity of the title of the
It is in proof that, from the year 1804 to the time of the conclusion of the
treaty between Spain and the United States, the houses of Panton, Leslie,
& Co., and John Forbes & Co., by their agents and tenants, were in possession
of the land; and that, from the first sale up to the time the Spaniards and
Indians left the country, they respected the title. About the time the United
States took possession of the Floridas, the agents of the house,. and those
claiming under them, made sales of the land to persons now in possession
holding under them; so that their possession has been uninterrupted for twen-
ty-six years.
This, of itself, constitutes a title by prescription under the laws of Spain.
(See Spanish law of prescription, translated from F6brero, American Jurist,
No. 20, for October, 1833, p. 268.)
See also Johnson's translation of the civil laws of Spain, title prescription;
Partidas, same title. The decisions of all the courts in Louisiana are in ac-
cordance with these authorities.
The maxim of nullum tempus occurrit regi is of feudal origin.
The feudal system was never introduced into Spain.
The discussion of the nullum tempus act, as it was called, will be found in
the 17th vol. Parliamentary History, 1771, p. 9,14, 17, 26, 31, 32.
The doctrine of prescription will be found more at large in the Manual del


Abogado, and the Novisima Recopilacion de las Leyes de Espafia; from
which the following extracts are made.

Manual del Abogado Americano, lib. 2, tit. 2, vol. 2, p. 59.

1. Prescription or usucaption, a civil mode of acquiring dominion, is the
acquisition of the ownership of any thing by having the possession of it
during the whole of the time that the law directs, (prefine.) Its requi-
sites are five: 1st, just title: 2d, good faith: 3d, continued possession:
4th,, the time fixed (tasado) by the law; and 5th, that the thing be not
vicious, that is, that there be no impediment to its being prescribed. I ac-
quire, then, the dominion of a thing, if, having purchased it from a person
whom I supposed to be its owner, though in reality he was net, I possess it
without interruption during the time fixed by the law. (1)
2. Title, is the cause suitable (idonea) to transfer the ownership; as, do-
nation, purchase, S4c.-It ought to be real, for a supposed one is not suffi-
cient, unless it be founded upon the ignorance of a foreign fact, as if my at-
torney delivers to me a thing, for the purchase of which 1 gave him an order,
without his having actually made the purchase.
3. Good faith, is the persuasion in which the possessor of the thing is,
that the seller or giver was the owner of it.-Notwithstanding what is estab-
lished by our laws, the interpreters agree that good faith ought to continue
until the completion of the prescription; but that bad faith is taken away af-
ter thirty years, if it is such only by presumption. (2)
4. The possession ought to be continuous; because, if it be interrupted,
either naturally, by its being actually lost by the person who was prescribing,
or civilly, by a suit being instituted against him, it is cut off in such a man-
ner that it must commence anew. But the continuation of the antecessor
follows in his successor, as well singular as universal; that is to say, as well
in the purchaser of a thing as in the heir.
5. Things moveable are prescribed by three years; real by ten between
present, and twenty between absent persons; and if the owner were part of
the time out of the province, and part within it, the former will be computed
by the rule of absent, and the latter by that of present persons. Things that
are alienated by a person who knows that he has no right so to do, are pre-

(1) Why does the law adjudge to me a thing belonging to another person, in virtue of
prescription? For many reasons: 1st, because it is presumed that its owner has aban-
doned it, inasmuch as he has not claimed it for so long a time: 2d, because it is fit that
properties should not be uncertain and insecure, to the end that their possessors may
improve them, and that the national wealth may not be diminished: 3d, to prevent the
pain that would arise from my being defrauded of an expectation so justly entertained:
4th, in order not to alarm all possessors who have no other title to their possessions
than good faith.
(2) The Roman law, adopted by our laws, only requires good faith at the beginning
of the possession, so that the good faith of the deceased enures to the heir who has
bad; and the bad faith of the former prejudices the latter, who has good. These two
absurdities are founded on the fiction which makes the heir one and the same person
with the deceased, whom he succeeds in his virtues and his vices; it being supposed
that the dead person is not dead, nort the living person alive. It appears more just
that good faith ought to continue until the edd of the prescription; and when there is
bad, even the age of Nestor should not be sufficient to secure to the usurper the fruits
and rewards of his iniquity; and the same thing with respect to his heirs, if they also
S are in bad faith, because impunity ought never to be a privilege of fraud.

scribed by thirty years, unless the owner knew it and was silent; for, in that
case, the ordinary prescription will be sufficient. Things of the patrimony
of cities, and real property of a church or religious place, are prescribed by
forty years, but restitution in integrum may be prayed for; those of the Ro
man church by one hundred; those of a mayorazgo, and the cities, towns,
and places, with the things annexed to the lordship and jurisdiction, and the
right of exacting impositions, by immemorial time.
6. Speaking of actions, prescription becomes the same thing as destruction,
in which sense (sentido) the right to execution upon a personal obligation is
prescribed by ten years; the personal action and the executorial action given
therein by twenty; but when there is an hypothecation in the obligation, or
when that is mixed of personal and real, or merely real, the debt is prescrib-
ed by thirty years; which must be understood in regard to the real and mixed,
if to the possessor of the thing was wanting any requisite in order to acquire
it by prescription. The action of lawyers, attorneys, apothecaries, grocers,
confectioners, shop-keepers, mechanics, servants, &c., to demand their sala-
ries, compensation for their services, or for what they may have respectively
supplied or made, is prescribed by three years.
7. The following cannot be prescribed: 1st, things of divine right, sacred,
religious, and holy; 2d, squares, streets, commons, (dehesas,) and other pro-
perty of towns, which are for the common use of their inhabitants; 3d, things
robbed or stolen; 4th, dotal property unappraised, property of children under
paternal control,, and of-minors under 25 years of age, in respect to which
must be borne in mind what has been said in book 1, tit. 7, no. 1; 5th, the
supreme civil or criminal jurisdiction, and the duties tributess) that are owing
to the treasury.
8. Possession is the legal holding or enjoyment of a thing with the in-
tention of excluding others from using it. It is divided into natural and
civil. Natural is that which one has corporally by himself, as when he is in
his house or inheritance: civil, that which one has by disposition of the law,
when he goes out of his house or inheritance, not with the intention of di-
vesting himself of the possession of it, but because he cannot always be in
it. As incorporeal things cannot properly be possessed, their enjoyment is
called quasi possession.
9. Every man of sound mind may gain possession by himself, by his son,
whom he may have under his control, and by his attorney. On behalf of or-
phans, or madmen, it is acquired by their guardians; and, on behalf of the
community of a city, by the syndic and any officer thereof.
10. In order to acquire possession, two things are requisite: first, the in-
tention of gaining it; and, secondly, the entering into it corporally, by one
of the modes of delivery which we explained in No. 11 of the preceding
title. And it is to be observed, that possession is prescribed by a year and a
day; that is to say, that he who holds a thing for that space of time, with
title and good faith, in: peace, and in the face of him who demands it, may
excuse himself from answering as to his possession.
11. The possession of things real is lost: 1st, if the possessor is despoiled
of them by force; 2dly, if, in his absence, any one enters into them, and af-
terwards he will not receive them; 3dly, when, knowing that some one has
entered into them, he will not go to recover them, from an apprehension that
they will not admit him, or will put him out by force; and, 4thly, if he quits
possession with the intention of not holding them.

Schedule of the sales made by Indians of lands in the counties of Opelousas and Attakapas.

Names of the Indians selling, with the quantity of land sold by each in superficial arpents.
Date ofthe sale. Before what judge or cor- Names of the purchasers. In what county
mandant executed. situated. Ashnoya, At- Tacoble Tor- Tichou, At. Celestine La Mementou, At- Lawisine, At. Louis, Attaka- John, At.
takapasIndian. tue, Attaka- takapaslndian. Tortue, Attaka- takapas chief, takapas Indian. pas Indian. takapas In-
pas. pas chief. dian.

1784, April 16, Mr. A. D. Clouet, Antoine Blanc, Opelousas, 3,333
1803, Nov. 10, Mr. H. La Chaise, M. T. Berthelt, idow, Do. Undefined.
1802, Aug. 19, Mr. L. C. Deblanc, John Coleman, Do. 3360
1803, Nov. 10, Mr. H. La Chaise, Pierre Chretien, Do. Undefined.
1802, July 21, Mr. H. La Chaise, John Comeau, Do. Undefined.
1804, March 17, Mr. H. La Chaise, John Baptiste Castile, Do. -3,360
1799, Julie 1, Private witnesses, Catharine Le Ble, Do. 7,056
1803, Dec. 29, Mr. H. La Chaise, P. A. De La Chaise, Do. 1,000
1803, Dec. 29, Mr. H. La Chaise, D. Guedry & J. Mouton, Do. 4,960
Unknown Henry Hebert, Do.
1804, April 16, Mr. La Chaise, Michel Leger, Do. 400
1803, Dec. 29, Mr. La Chaise, John Mouton, nephew, Do. 1,600
1803, Dec. 29, Mr. La Chaise, Andr6 Martin, Do. 1,523
1801, June 29, Mr. La Chaise, Louis and P. Richard, Do. 3,200
1804, Sept. 28, Mr. La Chaise, Raphael Smith, Do. 7,056 Mahy Polie, At-
1804, Sept. 28, Mr. La Chaise, Benjamin A. Smith, Do. 7,056 takapas Indian.
1804, April 16, Mr. La Chaise, Pierre Styx, Do. 960
Berrrard, At-
takapas chief
1804, April 17, Mr. La Chaise, Nicholas Simon, Do. -1,400
1803, Nov. 5, Mr. Duralde, Pierre Styx, Do. 40
1804, April 17, Mr. H. La Chaise, Charles Simon, Do. 600
1791, April 16, Mr. E. Forstall, William Wickoff, Do. 2,733
Francis Carmouch, Do. Undefined. John Baptiste,
1802, July 29, Mr. H. La Chaise, Frederick Mouton, Do. Undefined. AttakapasIn-
1802, June 28, Mr. H. La Chaise, Francois Stely, Do. *dian.
1800, Sept. 10, Mr. L. C. De Blanc, Francois Broussatd, Attakapas, Undefined.
1805, Nov. 19, Mr.E.C. Nicholls,j'dge, Hyacinth Bernard, Do. -- 1,040
1802, Aug. 19, Mr. L. C. De Blanc, John Lyon, Opelousas, 2,000
1801, Feb. 25. Mr. Duralde, John Lyon, Attakapas, -2,240
1802, Aug. 19, Mr. De Blanc, Marin Mouton, Do. -4,351
1802, Oct. 6, Mr. De Blanc, Thomas Nicholson, Do. 3,360

GENERAL LAND OFFICE, February 6, 1833.
The above schedule of lands sold by the Indians in Louisiana is copied from tie original report of the board of commissioners for the western district of the (now) State of Louisiana, on
file in this office, and in said report is placed at the conclusion of their report upon such sales, which is printed, (with some small discrepancies,) as Exhibit No. 33, H. H." pages 325 to 338 of
tle record in the case of "Colin Mitchell and others vs. the United States," and is the schedule referred to in the fourth line from the bottom of page 336 of said printed record.
ELIJAH HAY WARD, Commissioner.
Undefined, in the deed claimed for 640 acres.

Novisima Recopilacion, lib,.xL tit. 8, p. 195.
Law 1. That possessors of a thing pledged, or deposited, rented, or forced,
cannot allege prescription therein.
Any one holding or possessing an inheritance, or other thing, in pledge, or
in charge, or rented, or hired, or forced, cannot make his defence by time,
(prescribe,) because such as these are not possessors of themselves, but for
those to whom the thing belongs.-(Recop. lib. iv. tit. 15, ley 4.)
Law 2. That the holder of a thing stolen, or of that which he holds in
common with another, cannot prescribe through time.
If heirs, or other individuals, should hold or possess any thing in common
which is not divided among them, although one of them should be the depo-
sitary, they cannot defend themselves in it through time, (prescribe,) because
the right cannot be given to every one of the others whenever he should de-
mand it.
We also order, that if any thing is robbed, or any one should keep it hid,
he cannot defend it through time, because the owner had no opportunity of
replying, even if he should have asked for it.--(Recop. lib. iv. tit. 15, ley 5.)
Law 3. Obligation of the possessor of a thing, a year and a day; to be
answerable for it in the possession when there is no title nor good faith.
In the statutes of some places it is written, that any one holdingor possess-
ing house or vineyard, or inheritance, for a year and a day, in peace, and
before him who claims it, the claimant going and coming to the place is not
bound to answer for it; and it is doubtful whether, in the said prescription of
a year and a day, title and good faith are necessary. We, in order to dissi-
pate that doubt, do order, that he who possesses a thing a year and a day be
not exempted from answering for it in the possession, excepting when he
holds it a year and a day with title and good faith.-(Recop. lib. iv. tit. 15,
ley 3.)
Law 4. 43f the time necessary to prescribe, as respects the lordship of
places, and its civil and criminal jurisdiction, with the exception of the su-
preme, and of the dues and tributes belonging to the King.
Seeing that some persons, in our dominions, hold and possess some cities,
towns, and places, and civil and criminal jurisdictions, without having a title
"for the same from us, nor from the kings, our predecessors; and it has been
doubted whether the above mentioned can be acquired from as and our crown
through time, (can prescribe,) we ordain and ordeal, that possession immemo-
rial, when it is proved hew and wheo, and with the circumstances required
by the law of Toledo, (which is law 1, tit. 17, lib. 10,) is suicient to pre-
scribe against us, and our successors, as regards cities, towns, and places, and
*civil and criminal jurisdictions, and any thing growing out of these, and every
thing belonging to that lordship and jurisdiction annexed: provided always,
that the time of the aforesaid prescription be not interrupted or broken by
us, or by our order, or of others in our name, naturally or civilly. But the
supreme jurisdiction, civil or criminal, which kings possess by greatness and
royal power, which is to act and to enforce where other lords and judges
fall off. We declare that this cannot be obtained, nor prescribe through said
4ime, nor any other; and, in the same way, when the laws say that things of
the kingdom cannot be obtained through time, it is understood the dues and
tirbutes to us belonging.-(R. lib. 5, tit. 15, ley 1.)

Lib. xi. tit. 16, ley 9. Assessor only responsible for acts of judges, not
lawyers, governors, intendants, &c.
Lib. iii. tit. 3. General history qf the laws in use in Spanish dominions,
and the mode of applying them.-(Ley 10.)
Lib. iii. tit. 4, loy 2. To be null, and not to be executed, any royal orders
issued contrary to justice, law, or known privilege.
Law 4. To obey, but not to fulfil royal orders given against justice, or to
the prejudice or injury of any one, although they should contain clauses dero-
gating some part of them.
The judge below, in his decree (p. 647) and opinion, (p. 726,) lays great
stress on tile royal order of 22d October, 1798, (White's Collection, 218.)
By referring to the letter of Soler, of 20th February, 1805, to the Intendant
of Louisiana, (White, 219,) it will be perceived that that royal order was
communicated to Governor Folch, apparently for the first time, by a letter of
Soler to him, dated on the same 20th Febroary, 1805. Before that day the
first cession was completed, so far as the Indians were concerned, as their
act of cession bears date 25th May, 1804, and their act of ratification and
confirmation 22d August, 1804.
It appears by the document, on p. 513 of the Record, that on 22d Novem-
ber, 1806, Morales was in Pensacola, and presided at a junta of the royal
finances, held on that day. The document, on p. 511, shows the hostility
that existed between him and Folch. Eleven days afterwards Folch issues
the title of confirmation of 3d December, 1806. If Morales had considered
Folch as acting illegally on that occasion, is it not extremely probable that
he would have again complained to the King against him? There is not a
particle of testimony to show that Morales considered Folcl as transcending
his powers; but the contrary.-(See Calderon's deposition, p. 571; Arroyo's
deposition, p. 589.)
Calderon says, on p. 571, that Folch's confirming the sale was an act
"partly gubernatorial;" and it appears that Folch's character of sub-delegate
of the royal exchequer and protector of the Indians (which Calderon says he
was) made it judicial.
At page 642 of the Record will be found the dictamen, or legal opinion
officially given, of Leonardo del Monte, the Assessor General of Cuba. The
judge below, at page 699, says that the opinion of the Fiscal of West Flori-
da is, from his education as a lawyer, and the trust reposed in him, enti-
tled to the greatest weight." The reasons given by the judge for respecting
the opinion of the Fiscal, whom he calls "a high and responsible Spanish
officer, acting officially," apply, with greater force, to the opinion of a law-
yer holding the much higher office of Assessor General of Cuba. There is
a very imperfect translation of the latter on page 52. It commences with an
assertion that the ownership of the lands has been legally transferred to
Forbes & Co. "par titulo honoroso." This word, honoroso," is an error
of the press for "J onroso," "just," "equitable," "honest;" and the Asses-
sor General means to say that Forbes & Co. Ihad acquired the lands by a
just title, and not, as in the translation on page 52, a titulo oneroso," a
burthensome or troublesome title, which is nonsense. In the copy, from
which that translation was made, the letter A, in the word honroso, may have
been omitted: for as the A is never sounded in the Spanish language, except
by the common people in Andalusia, it is often omitted in writing, and a
careless transcriber might easily write onroso or oneroso in place of honroso.
We have, then, the opinion of" a high and responsible Spanish officer, act-

ing officially," and before the cession to the United States was contemplated
that the ownership of the lands was legally transferred to Forbes & Co., by
a just title, in pursuance of a competent permission from Governor Folch,
and that the latter had afterwards given deeds of confirmation to the pur-
chasers. Surely this opinion is entitled to the greatest weight," for the
Assessor Genbral of Cuba must be more competent to determine a question
depending exclusively upon Spanish laws and usages, than the Fiscal of
West Florida, or any judge in a foreign country.
There is another consideration which deserves attention. The decree,"
made by the Captain General on that occasion (see page. 53) was not a mi-
nisterial, but a judicial act; the matter is res adjudicata. The functions of
the Captain General are partly judicial. He is President of the Royal Au-
dience, which is the highest court in the island, and Judge of Appeals of the
court of Consulado. In cases where he is attended by the Assessor General
and a notqry, he is considered Ma acting in a judicial capacity. Had he on
this occasion been acting in his political capacity, his permission would have
been countersigned by the Secretary of the Captain Generalcy.
With respect to the opinion of the Fiscal of West Florida (Record, pages
207 and 699) it will be observed that it relates only to vacant land; and he
assigns as one of his reasons that the Indians did not disturb a former settler
named Zamora, which shows that the Indians did not claim the land then in
question, and that, if they had claimed it, his opinion would have been dif-
ferent. He does not assert that all the lands of Florida were realengas
The official acts of Governor Folch, in relation to the sale, were of a judi-
cial nature. By referring to Solorzano's Politica Indiana, lib. 2, chap. 29,
n. 42, 43, 44, it will be found that the intervention of a judge is necessary
in the sale of property by Indians. Solorzano cites for this the cedulas of
the years 1540, 1571, and 1572, tom. 4 of the cedulas, &c. page 354, et seg.,
law 17, tit. 1, lib. 6, Recop. de las Indias; but this last citation is an error
of the press, and should be law 27. See also Alvarez's Inst. b. 1, tit. 23.
The Spanish Government was bound by its knowledge of, and consent to,
the'purchase; and, by the Spanish law of prescription, the purchasers acquir-
ed a valid title by an uninterrupted possession, in good faith, of upwards of
ten years, which period is sufficient when the parties are present, and the
King was always present by his officers. That the purchasers had posses-
sion, is proved on page 623 of the Record.
Admitting that the Indians had no right to sell, Governor Folch's deeds of
confirmation have the same operation that deeds of confirmation have by
the English law. They come precisely within the definition, and contain the
very technical words of the English deed. Confirmation is," (according to
the Termes de la Ley, which definition Powell prefers to the one given by
Lord Coke,) when one who hath a right to any lands or tenements makes
" a deed to another who hath the possession, or some estate, with these
" words, ratijicasse, approbasse, confirmasse, with intent to enlarge his es-
" tate, or make his possession perfect, and not defeasible by him that makes
"the confirmation, or by any other that may have his right." See Wood's
Conveyancing, by Powell, vol. 2, page 245.
If there had been, however, neither the ratification of the Indian sales by
Governor Folch, nor the consent to the alienation to the present petitioners
by the Captain General, the title would have been perfect from the consent
prevlbusly iven by the Governors General Don Manuel Gayoso de Lemos,

-t X'



DOe Moawel de Salcedq aid the Marquis of Caso Calvo, all conatanedimk ''
Record. eThese high oaicers of the Spauish Crown ill concurred i .
mode-of indemioification, and recommended it.
In everypoina of view a which this case can be presented, uAner t .
teety and laws-of Spain, the previous adjudications of the Supeme CVa ".
the pIpciples -of equity, jti&,ic, and good fpith, this .title ought to le efo-
firmed.. It.never wand4antger would have been, questioned if twh Te-
ritories had remained under the dominion of His Catholic Majesty." Thitat
the rule given in the treaty-by which it is to be decided.
The magnitude of the grant, rather then,the principle involved, has obta-
sioned all the resistance and delay in the confirmation of the title.
It has, indeed been suggested that by far thI liger part of these a1 *
ha.pased from the. 8" anish grantees into thil bhad ofr ot ow citwens; al,
fe e- .it w ed ibe ipius ed, neither I e nalt aeefaith or htonof, norj .
S ;pecair condition of the original proprietds, can be invoked in fatp'~bd
these claims. We will not stop to inquire into the fact. It is utterly inim-
portant. The present holders succeed to the rights of their predecess rs.
Humen justice is never perfect. Often it cannot be done to the party; fre-
quendy, not, evn to his heirs. When the public debt was funded, few of.
thosewvho lost.by the depreciation gained by the advance. When a chancery
suit.is ended, it is sometimes the grand-children of the original parties who 1
obtain, to. late, I small portion of their patrimony. ,





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