CHAP. CXXIX.-An Act for ascertaining claims and titles to land within the territory of Florida. (a)

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That, for the purpose of

STATUTE I.

May 8, 1822.

The Presi

dent, &c. to appoint three com

(a) The decisions of the courts of the United States upon claims and titles to land in the territory of Florida, have been :

After the acquisition of Florida by the United States, in virtue of the treaty with Spain, of 22d of February, 1819, various acts of Congress were passed for the adjustment of private land claims, within the ceded territory. The tribunals authorized to decide on them, were not authorized to settle any which exceeded a league square; on those exceeding that quantity, they were directed to report, especially, their opinion, for the future action of Congress. The lands embraced in the larger claims were defined by surveys, and plats retained; these were reserved from sale, and remained unsettled until some resolution should be adopted for a final adjudication of them, which was done by the passage of the law of the 22d of May, 1828. By the sixth section it was provided, "that all claims to land within the territory of Florida, embraced by the treaty, which shall not be finally decided and settled under the provisions of the same law, containing a greater quantity of land than the commissioners were authorized to decide, and above the amount confirmed by the act, and which have not been reported as antedated, or forged, shall be received and adjudicated by the judges of the superior court of the district in which the land lies, upon the petition of the claimant, according to the forms, rules and regulations, conditions, restrictions and regulations prescribed to the district judge, and to the claimants, by the act of 26th May, 1824. By a proviso, all claims annulled by the treaty, and all claims not presented to the commissioners, &c., according to the acts of Congress were excluded. United States v. Arredondo et al. 6 Peters, 706. The grant of the king of Spain to F. M. Arredondo and Son, for land at Alachua, in Florida, gave a valid title to these claimants under the grant, according to the stipulations under the treaty between the United States and Spain, of 1819. By the laws of nations, of the United States, and of Spain, a concession or condition becomes absolute, where the condition is performed. Ibid. 691.

The original concession by governor Coppinger, on the petition of George J. F. Clarke, was made on the 17th of December, 1817, of twenty-six thousand acres of land, in the places he solicited in his petition, and a complete title was made of twenty-two thousand acres, part of the same, in December, 1817. Twenty thousand acres, part of the whole concession, were sold by the appellee. The other four thousand were surveyed in conformity with the decree of 17th December, 1817, and a complete title to the same was made by governor Coppinger, on the 4th of May, 1818. By the court-The claimant cannot avail himself of the grant of the 4th of May, 1818, made after the 24th of January, 1818, the time limited by the Florida treaty. He must rest his claim on the concession made on the 17th of December, 1817, United States v. Clarke, 8 Peters, 436.

The validity of concessions of land, by the authorities of Spain, in East Florida, is expressly recognised in the Florida treaty, and in the several acts of Congress. Ibid.

The eighth article allows the owners of land the same time for fulfilling the conditions of their grants from the date of the treaty, as is allowed in the grant from the date of the instrument. And the act of the 8th of May, 1822, requires every person claiming title to lands under any patent, grant, concession, or order of survey dated previous to the 24th of January, 1818, to file his claim before the commissioners, appointed in pursuance of that act. All the subsequent acts on the subject, observe the same language; and the titles under these concessions have been uniformly confirmed, when the tract did not exceed a league square. Ibid.

A claim to lands in East Florida, the title to which was derived from grants by the Creek and Seminole Indians, ratified by the local authorities of Spain, before the cession of Florida by Spain to the United States, confirmed. Mitchel et al. v. The United States, 9 Peters, 711.

It was objected to the title claimed in this case, which had been presented to the superior court of Middle Florida, under the provisions of the acts of Congress for the settlement of land claims in Florida, that the grantees did not acquire, under the Indian grants, a legal title to the land. Held: that the acts of Congress submit these claims to the adjudication of this court as a court of equity; and those acts, as often and uniformly construed in its repeated decisions, confer the same jurisdiction over imperfect, inchoate and inceptive titles, as legal and perfect ones; and require the court to decide by the same rules on all claims submitted to it, whether legal or equitable. Ibid.

In the case of the United States v. Arredondo, 6 Peters, 691, the lands granted had been in the possession and occupation of the Alachua Indians, and the centre of the tract was an Indian town of that name. But the land had been abandoned, and before any grant was made by the intendant, a report was made by the attorney and surveyor general on a reference to them, finding the fact of abandonment; on which it was decreed that the lands had reverted to, and become annexed to the royal domain. Ibid. By the common law, the king has no right of entry on lands which is not common to his subjects; the king is put to his inquest of office, or information of intrusion, in all cases where a subject is put to his action; their right is the same, though the king has more convenient remedies in enforcing his. If the king has no original right of possession to lands, he cannot acquire it without office found, so as to annex it to his domain. Ibid.

The United States have acted on the same principle in the various laws which Congress have passed in relation to private claims to lands in the Floridas; they have not undertaken to decide for themselves, on the validity of such claims, without the previous action of some tribunal, special or judicial. They have not authorized an entry to be made on the possession of any person in possession, by colour of a Spanish grant or title; nor the sale of any lands as part of the national domain; with any intention to impair private rights. The laws which give jurisdiction to the district courts of the territories to decide in the first instance, and to this court on appeal, prescribe the mode by which lands which have been possessed or claimed to have been granted pursuant to the laws of Spain, shall become a part of the national domain; which, as declared in the seventh section of the act of 1824, is a "final decision against any claimant pursuant to any of the provisions of the law." Ibid.

missioners for ascertaining

claims and titles to lands in Florida.

ascertaining the claims and titles to lands within the territory of Florida, as acquired by the treaty of the twenty-second of February, one thousand eight hundred and nineteen, there shall be appointed, by the President of the United States, by and with the advice and consent of the Senate, One uniform rule seems to have prevailed in the British provinces in America, by which Indian lands were held and sold, from their first settlement, as appears by their laws; that friendly Indians were protected in the possession of the lands they occupied, and were considered as owning them by a perpetual right of possession in the tribe or nation inhabiting them as their common property, from generation to generation, not as the right of the individuals located on particular spots. Subject to this right of possession, the ultimate fee was in the crown and its grantees; which could be granted by the crown or colonial legislatures while the lands remained in possession of the Indians; though possession could not be taken without their consent. lbid.

Individuals could not purchase Indian lands without permission or license from the crown, colonial governors, or according to the rules prescribed by colonial laws; but such purchases were valid with such license, or in conformity with the local laws; and by this union of the perpetual right of occupancy with the ultimate fee, which passed from the crown by the license, the title of the purchaser became complete. Ibid.

Indian possession or occupation was considered with reference to their habits and modes of life; their hunting grounds were as much in their actual possession as the cleared fields of the whites; and their rights to its exclusive enjoyment in their own way, and for their own purposes, were as much respected until they abandoned them, made a cession to the government, or an authorized sale to individuals. In either case their rights became extinct, the lands could be granted disencumbered of the right of occupancy, or enjoyed in full dominion by the purchases from the Indians. Such was the tenure of Indian lands by the laws of Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, and Georgia. Ibid.

Grants made by the Indians at public councils, since the treaty at Fort Stanwick's, have been made directly to the purchasers, or to the state in which the land lies, in trust for them, or with directions to convey to them; of which there are many instances of large tracts so sold and held; especially in New York. Ibid.

It was the universal rule that purchases made at Indian treaties, in the presence, and with the approbation of the officer under whose direction they were held by the authority of the crown, gave a valid title to the lands; it prevailed under the laws of the states after the revolution; and yet continues in those where the right to the ultimate fee is owned by the states, or their grantees. It has been adopted by the United States: and purchases made at treaties held by their authority, have been always held good by the ratification of the treaty, without any patent to the purchasers from the United States. This rule in the colonies was founded on a settled rule of the law of England, that by his prerogative the king was the universal occupant of all vacant lands in his dominions, and had the right to grant them at his pleasure, or by his authorized officers. Ibid.

When the United States acquired and took possession of the Floridas, the treaties which had been made with the Indian tribes before the acquisition of the territory by Spain and Great Britain, remained in force over all the ceded territory as the laws which regulated the relations with all the Indians who were parties to them; and were binding on the United States, by the obligation they had assumed by the Louisiana treaty, as a supreme law of the land, which was inviolable by the power of Congress. They were also binding as the fundamental law of Indian rights, acknowledged by royal orders, and municipal regulations of the provinces, as the laws and ordinances of Spain in the ceded provinces, which were declared to continue in force by the proclamation of the governor in taking possession of the province; and by the acts of Congress which assured all the inhabitants of protection in their property. It would be an unwarranted construction of these treaties, laws, ordinances and municipal regulations, to decide that the Indians were not to be maintained in the enjoyment of all the rights which they could have enjoyed under either, had the province remained under the dominion of Spain. It would be rather a perversion of their spirit, meaning and terms, contrary to the injunction of the law under which the court acts, which makes the stipulations of any treaty, the laws and ordinances of Spain; and these acts of Congress, so far as either apply to this case, the standard rules for its decision. Ibid.

The treaties with Spain and England before the acquisition of Florida by the United States, which guarantied to the Seminole Indians their lands according to the right of property with which they possessed them, were adopted by the United States; who thus became the protectors of all the rights they had previously enjoyed, or could of right enjoy under Great Britain or Spain, as individuals or nations, by any treaty, to which the United States thus became parties in 1803. lbid.

The Indian right to the lands as property was not merely of possession, that of alienation was concomitant; both were equally secured, protected, and guarantied by Great Britain and Spain, subject only to ratification and confirmation by the license, charter or deed from the governor representing the king. Such purchases enabled the Indians to pay their debts, compensate for their depredations on the traders resident among them, to provide for their wants; while they were available to the purchasers as payment of the considerations which at their expense had been received by the Indians. It would have been a violation of the faith of the government to both, to encourage traders to settle in the province, to put themselves and property in the power of the Indians, to suffer the latter to contract debts, and when willing to pay them by the only means in their power, a cession of their lands, withhold an assent to the purchase, which by their laws or municipal regulations was necessary to vest a title. Such a course was never adopted by Great Britain in any of her colonies; nor by Spain in Louisiana or Florida. Ibid. The laws made it necessary, when the Indians sold their lands, to have the deeds presented to the governor for confirmation. The sales by the Indians transferred the kind of right which they possessed; the ratification of the sale by the governor must be regarded as a relinquishment of the title of the crown to the purchaser; and no instance is known where permission to sell has been "refused, or of the rejection of an Indian sale." Ibid.

In the present case the Indian sale has been confirmed with more than usual solemnity and publicity; it has been done at a public council and convention of the Indians conformably to treaties, to which the

Their pay.

To open an office at Pensa

cola.

three commissioners, who shall receive, as compensation for the duties enjoined by the provisions of this act, two thousand dollars each, to be paid quarterly, from the treasury; who shall open an office for the adjudication of claims, at Pensacola, in the territory of West Florida, and St. king was a party, and which the United States adopted; and the grant was known to both parties to the treaty of cession. The United States were not deceived by the purchase, which they knew was subject to the claim of the petitioner, or those from whom he purchased; and they made no stipulation which should put it to a severer test than any other; and it was made to a house which, in consideration of its great and continued services to the king and his predecessor, had deservedly given them high claims as well on his justice as his faith. But if there could be a doubt that the evidence in the record did not establish the fact of a royal license or assent to this purchase, as a matter of specific and judicial belief, it would be presumed as a matter of law arising from the facts and circumstances of the case, which are admitted or unquestioned. Ibid.

As decided by the Supreme Court, the law presumes the existence in the provinces of an officer authorized to make valid grants; a fortiori, to give license to purchase and to confirm; and the treaty designates the governor of West Florida as the proper officer to make grants of Indian lands by confirmation; as plainly as it does the governor of East Florida to make original grants, or the intendant of West Florida to grant royal lands. A direct grant from the crown, of lands in a royal haven may be presumed on an uninterrupted possession of sixty years; on a prescriptive possession of crown lands for forty years. Ibid.

The length of time which brings a given case within the legal presumption of a grant, charter or license, to validate a right long enjoyed, is not definite, depending on its peculiar circumstances. Ibid. Juan Percheman claimed two thousand acres of land lying in the territory of Florida, by virtue of a grant from the Spanish governor, made in 1815. His title consisted of a petition presented by himself to the governor of East Florida, praying for a grant of two thousand acres, at a designated place, in pursuance of the royal order of the 29th of March, 1815, granting lands to the military who were in St. Augustine during the invasion of 1812 and 1813; a decree by the governor, made 12th December, 1815, in conformity to the petition, in absolute property, under the authority of the royal order, a certified copy of which decree and of the petition was directed to be issued to him from the secretary's office, in order that it may be to him in all events an equivalent of a title in form; a petition to the governor, dated 31st December, 1815, for an order of survey, and a certificate of a survey having been made on the 20th of August, 1819, in obedience to the same. This claim was presented, according to law, to the register and receiver of East Florida, while acting as a board of commissioners to ascertain claims and titles to lands in East Florida. The claim was rejected by the board, and the following entry made of the same. "In the memorial of the claimant to this board, he speaks of a survey made by authority in 1829. If this had been produced, it would have furnished some support for the certificate of Aguilar. As it is, we reject the claim." Held, that this was not a final action on the claim, in the sense those words are used in the act of the 26th of May, 1830, entitled "An act supplementary to," &c. United States v. Percheman, 7 Peters, 51.

A grant of land in Florida within the Indian boundary, by the governor, acting under the crown of Spain before the cession of Florida to the United States, was confirmed to the grantee, by the decree of the judge of the eastern district of Florida. The decree was affirmed on appeal. The United States v. Fernandez, 10 Peters, 303.

The subject of grants of land within the Indian boundary, which had not by any official act been declared a part of the royal domain, was fully and ably considered in the case of Johnson v. M'Intosh, 8 Wheat. 543; 5 Cond. Rep. 515. Every European government claimed and exercised the right of granting lands, while in the occupation of the Indians. Ibid.

The grants of lands in the possession of the Indians by the governor of Florida, under the crown of Spain, were good to pass the right of the crown. The grants severed them from the royal domain, so that they became private property; which was not ceded to the United States by the treaty with Spain.

Ibid.

The Supreme Court cannot attach any condition to a grant of absolute property in the whole of the land. This grant was made by the governor of East Florida in absolute property, with a promise of a title in form. He was the exclusive judge of the conditions to be imposed on his grant, and of their performance. The United States v. Segui, 10 Peters, 306.

A grant of land by the governor of East Florida, in consideration of services to the Spanish government, made before the cession of the territory of Florida to the United States, confirmed. The United States v. Chaires, 10 Peters, 308.

Under a grant of the governor of Florida, prior to the cession of the same to the United States, of sixteen thousand acres of land, for the purpose of erecting a water-mill, a survey of five hundred and twenty acres was made; and at another place, a survey of fifteen thousand six hundred and thirty acres was also made. The Supreme Court held, that the first survey of five hundred and twenty acres was valid, and that the survey of fifteen thousand four hundred and eighty acres was invalid; but that the grantee has a title to fifteen thousand four hundred and eighty acres of vacant land; which he has a right to have surveyed, adjoining the survey of five hundred and twenty acres. The United States v. Seton, 10 Peters, 309.

Under a Spanish grant of five miles square, ten thousand acres were surveyed at one place, and six thousand acres were surveyed at another place, as the whole quantity of ungranted land could not be found together. The grant was confirmed. The United States v. Sibbald, 10 Peters, 313.

A grant of land was made by governor Coppinger, in June, 1828. The grant was made to the appellee, on his stating his intention to build a saw-mill. The decree grants to the petitioner "license to construct a water-saw mill, on the creek known by the name of Pottsburg, bounded by the lands of Strawberry Hill, and this tract not being sufficient, I grant him the equivalent quantity in Cedar Swamp about a mile east of M'Queen's mill, but with the precise condition that, as long as he does not erect said machinery, this grant will be considered null, and without value nor effect until that event takes

To appoint a secretary.

Augustine, in East Florida, under the rules, regulations, and conditions, hereinafter prescribed.

SEC. 2. And be it further enacted, That it shall be the duty of said commissioners to appoint a suitable and well qualified secretary, who

place; and then in order that he may not receive any prejudice from the expensive expenditures which he is preparing, he will have the facility of using the pines and other trees comprehended in the square of five miles, or the equivalent thereof, which five miles are granted to him in the mentioned place, the avails of which he will enjoy without any defalcation whatever." By the Court-The judge of the superior court construed this concession to be a grant of land, and we concur with him. United States v. Richard, 8 Peters, 470.

A grant of land in East Florida was made by the governor, before the cession of Florida by Spain to the United States, on conditions which were not performed by the grantee within the time limited in the grant; or any exertions made by him to perform them. No sufficient cause for the non-performance of the conditions having been shown, the decree of the Supreme Court of East Florida, which confirmed the grant, was reversed. United States v. Mills' Heirs, 12 Peters, 215. A grant for land in Florida by governor Coppinger, on condition that the grantee build a mill, within a period fixed in the grant, was declared to be void; the grantee not having performed the condition, or shown sufficient cause for its non-performance. United States v. Kingsley, 12 Peters, 476. Under the Florida treaty, grants of land made before the 24th January, 1818, by his Catholic majesty, or by his lawful authorities, stand ratified and confirmed to the same extent that the same grants would be valid if Florida had remained under the dominion of Spain; and the owners of conditional grants who have been prevented from fulfilling all the conditions of their grants, have time by the treaty extended to them to complete such conditions. That time as was declared by the Supreme Court in Arredondo's case, 6 Peters, 691, began to run in regard to individual rights, from the ratification of the treaty; and the treaty declares, if the conditions are not complied with, within the terms limited in the grant, that the grants shall be null and void. Ibid.

A grant by governor Coppinger of fourteen thousand five hundred acres of land, in East Florida, part of thirty thousand acres granted in consideration of services to the crown of Spain, and the officers of Spain, which had been surveyed by the appointed officer, confirmed. United States v. Levy, 12 Peters, 218.

The court refused to allow a survey of land to be made to make up for a deficiency in the survey of fourteen thousand five hundred acres, in consequence of part of the land included therein being covered with water, and being marshes. Even if a survey had not been made under the concession, it would not be competent for the superior court of East Florida, or for the Supreme Court, to designate a new location varying from the original concession, as any such variation would be equivalent to a new grant. Ibid.

A concession was made by the governor of Florida, before the cession of Florida to the United States, on condition that the grantee should erect a water saw-mill," and with the precise condition, that until he executes the said machinery, the grant to be considered void, and without effect, until that event takes place." The mill was never erected, and no sufficient reason shown for its non-erection. The court held that the concession gave no title to the land. United States v. Drummond, 13 Peters, 84.

A grant of land in East Florida, by the Spanish governor, on the condition that a water saw-mill should be erected on the land, declared void; the condition of the grant not having been performed according to the terms of the grant. United States v. Burgevin, 13 Peters, 85.

A grant by governor Coppinger of fourteen thousand five hundred acres of land, in East Florida, part of the thirty thousand acres, granted in consideration of services to the crown of Spain and the officers of Spain, which had been surveyed by the appointed officer, confirmed. The United States v. Moses E. Levy, 13 Peters, 81.

The court refused to allow a survey of land to be made, to make up for a deficiency in the survey of fourteen thousand five hundred acres, in consequence of part of the land included therein being covered with water, and being marshes. Even if a survey had not been made under the concession, it would not be competent for the superior court of East Florida, or for the Supreme Court, to designate a new location varying from the original concession, as any such variation would be equivalent to a new grant. Ibid.

A grant of land by Estrada, the governor of East Florida, was made on the 1st of August, 1815, to Elizabeth Wiggins, on a petition, stating, that "owing to the diminution of trade, she will have to devote herself to the pursuits of the country." The grant was made for the quantity of land apportioned by the regulations of East Florida to the number of the family of the grantee. It was regularly surveyed by the surveyor general, according to the petition and grant. No settlement or improvement was ever made by the grantee, or by any one acting for her, on the property. In 1831, Elizabeth Wiggins presented a petition to the superior court of East Florida, praying for a confirmation of the grant; and in July, 1838, the court gave a decree in favour of the claimant. On an appeal to the Supreme Court of the United States, the decree of the superior court of East Florida was reversed. The court held, that by the regulations established on the 25th November, 1818, by governor Coppinger, the grant had become void, because of the non-improvement, and the neglect to settle the land granted. The United States v. Elizabeth Wiggins, 14 Peters, 334.

The existence of a foreign law, especially unwritten, is a fact to be proved like any other fact, by appropriate evidence. Ibid.

A copy of the decree by the governor of East Florida, granting land to a petitioner while Spain had possession of the territory, certified by the secretary of the government to have been faithfully made from the original in the secretary's office, is evidence in the courts of the United States. By the laws of Spain, prevailing in the province at that time, the secretary was the proper officer to give copies; and the law trusted him for this particular purpose, so far as he acted under its authority. The origi nal was confined to the public office. Ibid.

Duties of the

secretary.

His compen

sation.

shall record, in a well-bound book, all and every their acts and proceedings, the claims admitted, with those rejected, and the reason of their admission or rejection. He shall receive as a compensation for his services, one thousand two hundred and fifty dollars, to be paid quarterly, from The eighth article of the Florida treaty stipulates, that "grants of land made by Spain, in Florida, after the 24th of January, 1818, shall be ratified and confirmed to the persons in possession of the land, to the same extent that the same grants would be valid, if the government of the territory had remained under the dominion of Spain." The government of the United States may take advantage of the nonperformance of the conditions prescribed by the law relative to grants of land, if the treaty does not provide for the omission. Ibid.

In the cases of Arredondo, 6 Peters, 691, and Percheman, 7 Peters, 54, it was held, that the words in the Florida treaty, "shall be ratified and confirmed ;" in reference to perfect titles, should be construed, "are ratified and confirmed." The object of the court in these cases was to exempt them from the operation of the eighth article, for that they were perfect titles by the laws of Spain, when the treaty was made; and that when the soil and sovereignty of Florida were ceded by the second article, private rights of property were, by implication, protected. By the law of nations, the rights to property are secured when territories are ceded; and to reconcile the eighth article of the treaty with the law of nations, the Spanish side of the article was referred to in aid of the American side. The court held, that perfect titles "stood confirmed" by the treaty; and must be so recognised by the United States, in our courts. Ibid.

Perfect titles to lands, made by Spain in the territory of Florida before the 24th January, 1818, were intrinsically valid, and exempt from the provision of the eighth article of the treaty; and they need no sanction from the legislative or judicial departments of the United States. Ibid.

The eighth article of the Florida treaty was intended to apply to claims to land whose validity depended on the performance of conditions, in consideration of which the concessions had been made; and which must have been performed before Spain was bound to perfect the titles. The United States were bound after the cession of the country, to the same extent that Spain had been bound before the ratification of the treaty, to perfect them by legislation and adjudication. Ibid.

A grant of land by the government of Florida, made before the cession of Florida to the United States by Spain, confirmed: every point involved in the case having been conclusively settled by the court in their former adjudications in similar cases. The United States v. Waterman, 14 Peters, 478. The Supreme Court, in the case of the United States v. Clark, 8 Peters, 48, say "that if the validity of the grant depends upon its being in conformity with the royal order of Spain of 1790, it cannot be supported ;" but immediately proceeds to show, "though the royal order is recited in the grant, that it was, in fact, founded on the meritorious consideration of the petitioner having constructed a machine of great value for sawing timber; the recital of the royal order of 1790, in this grant, is entirely immaterial, and does not affect the instrument." Held, the recital of the royal order, in this case, is quite immaterial. Ibid.

The case of the United States v. Wiggins, 14 Peters, 325, which decided that certain proof of the certificate of Aguilar, secretary of East Florida, was sufficient, cited; and the decision on that point affirmed. Ibid.

The Spanish governors of Florida had, by the laws of the Indies, power to make large grants to the subjects of the crown of Spain. The royal order of Spain of 1790, applied to grants to foreigners. These grants, before the cession of Florida to the United States, had been sanctioned for many years by the king of Spain, and the authorities representing him in Cuba, the Floridas, and Louisiana. This authority has been frequently affirmed by the Supreme Court. Ibid.

An application was made to the governor of Florida, in 1814, stating services performed by the petitioner for the government of Spain, and the intention of the petitioner to invest his means in the erection of a water saw-mill, and marking the place where the lands were situated which were asked for. The governor granted the land, referring to the merits and services of the applicant, and in consideration of the advantages which would result to the home and foreign trade by the use proposed to be made of the land. Held, that this was not a conditional grant; and that no evidence of the erection of a water saw-mill was required to be given to maintain its validity, or induce its confirmation. Ibid. John Forbes by memorial to governor Kindelan, the governor of East Florida, set forth, that in 1799, there had been granted to Panton Leslie and company, for the purpose of pasturage, fifteen thousand acres of land, which they were obliged to abandon, as being of inferior quality. Forbes, as the successor to these grantees, asked to be permitted to abandon these fifteen thousand acres, and in lieu, to have granted to him ten thousand acres, as an equivalent, on Nassau river. The petition avers that the object was to establish a rice plantation. The petition was referred to the "Comptroller," who gave it as his opinion that the culture of rice should be promoted. Governor Kindelan permitted the abandonment of the fifteen thousand acres granted before, and in lieu thereof, granted to John Forbes, for the purpose of cultivating rice, ten thousand acres in the district, on banks of the river Nassau. Surveys of seven thousand acres of land, at the head of the river "Little St. Mary" or "St. Mary," and three thousand acres in "Cabbage Swamp," were made under this grant. No description of the locality of the land other than that in the certificate of the survey was given; nor do the surveys prove that the land surveyed lay in the district of the river Nassau. No evidence was given of the situation of "Cabbage Swamp." Held, that these surveys were not made of the land granted by governor Kindelan; and according to the decisions of this court on all occasions, the surveys, to give them validity, must be in conformity with the grants on which they are founded; and to make them the origin of title, they must be of the land described in the grant of the Spanish government. The United States v. Forbes, 15 Peters, 173.

The courts of justice can only adjudge what had been granted; and declare that the lands granted by the lawful authorities of Spain, are separated from the public domain: but where the land is expressly granted at one place, they have no power, by a decree, to grant an equivalent at another place, VOL. III.-90 302