THE UNITED STATES, APPELLANTS,
v.
JOSEPH DELESPINE, APPELLEE.
Supreme Court of United States.
*320 The case was argued by Mr. Gilpin, Attorney General, for the United States; and by Mr. Downing, for the appellee.
*328 Mr. Justice CATRON delivered the opinion of the Court.
The first objection to the decree of the Court below, made in behalf of the United States, is: 1. "That the claim ought not to be sustained; because, neither the claimant, nor those under whom he claims, ever came within the provisions of the act of Congress, applicable to the said claim; or filed any petition, memorial, or necessary documents within the term required by law."
By the act of the 26th of May, 1830, Congress declared, that all claims to lands not settled by that act, and which had been presented to the Commissioners of East Florida, or to the Register and Receiver acting as such, and which had not been "finally acted upon," should be adjudicated and settled as prescribed *329 by the act of 1828. The final action referred to in the act of 1830, was that of Congress. 7 Peters, 94. So that the claim in controversy is of the description required, and within the jurisdiction of the Courts, by the fourth section of the act of 1830; nor do we find any thing in the act, which precluded the Court below from entertaining the petition for the establishment of the claim, on the ground that it had not been filed in time. By the act of 1828, c. 70, s. 12, it was declared, that claims not brought before the Courts within one year from the date of that act, should be forever barred: and thus stood Delespine's claim, when the act of 1830 was passed. This act has no direct limitation in it; nor is it open to inquiry in this case, whether a limitation can be implied; because the petition was filed in November, 1830, within one year after the date of the act: and although the first petition was informal, and defective in substance, still, it would be too strict, to say it was not the commencement of the proceeding, but that the amendment allowed by the Superior Court, in November, 1833, should be taken as the date when the claim was first preferred.
It had been filed before the commissioners for adjudicating the Florida land claims, as early as 1825, we are informed by the petition; and reported to Congress, with a recommendation, that it be confirmed. This fact is not denied, or controverted; and which we take to be true.
2. It is insisted that the evidence in the cause is insufficient to prove that the alleged grant or concession was ever made.
It appears, that on the 28th day of May, 1813, Arrambide applied to the Provincial Deputation, at Havana, for two leagues of land to each point of the compass, making ninety-two thousand one hundred and sixty acres; that, on the 4th of December, 1813, the Deputation stated to the Council of St. Augustine, that it granted the land to Arrambide; and referred the grantee to the Council, with a command to the Council to expedite to him the title.
The ordinary modes of granting lands in Florida, had been directly, either by the Captain General of Cuba, or the Governor of Florida; but owing to a recent call of the Cortes in Spain, and a re-organization of the Spanish government, existing at the date of the concession; and which state of things lasted only for *330 a short time, the mode of proceeding, in regard to granting the public domain, was changed, and the powers vested in the tribunals known as "the Provincial Deputation." This appears by the royal order of the 4th of January, 1813, found in the United States Land Laws, Appendix, 1006. It was made the duty of the Provincial Deputation, to devise the most convenient means of making grants; and through the Secretaries of State, to report the same to the Cortes, for their recognition and adoption.
The Deputation at Havana assumed the power to grant; and nothing appearing to the contrary of the existence of the power in that body, and the concession made at Havana, not being opposed to the royal order of January, 1813, and there being no occasion, in this case, to inquire into the powers of the Provincial Deputation; we have treated the testimonial as emanating from the proper authority, leaving the point open to future inquiry, should an occasion call for it, and positively require us to decide whether the Deputation had the power assumed.
It was necessary to state thus much of the case, and of the then state of the Spanish tribunals and history, preparatory to discussing the effect of the proofs intended to establish that the grant had in fact been made.
Jose Leal, representing himself as a notary at Havana, certifies, that on the 13th of January, 1814, he had recorded the original memorial of Arrambide, and the documents accompanying the same, with the testimonial, or concession; a record of which he testified in presence of two witnesses. This record purports to have been made pursuant to the order of the Captain General, on the petition of Arrambide. Thus authenticated, the testimonial of the grant appears to have been presented to the Council of East Florida; but none of the accompanying documents, so far as can be seen, or inferred from the record before us, were presented.
On the 1st day of February, 1814, the Council acted upon the testimonial, but granted lands at a different place from the one therein expressed.
On the 3d of June, 1814, Fntralgo, the Secretary, says, "This is a copy." And on the 6th of June following, Ygninez and *331 Lopez, styling themselves Royal Collector, and Treasurer, certify to the official character of Entralgo.
How far the forms of these certificates could have been called in question, in the Supreme Court, it is difficult to say; no objection, however, on the hearing in that Court, was made to the introduction of the testimonial given the interested party at Havana; nor to the resolution taken thereon by the Council at St. Augustine; and we therefore do not feel ourselves justified in rejecting them on this appeal, because of the informality in the evidence adduced to the Court below of their existence in the public archives of Florida. The claim had been presented to the American commissioners years before, without objection to the existence of the title by the board, so far as we are informed. But we chiefly rely on this, that from the nature and great extent of the claim, if such an objection had been well founded, or even suspected, it is fair to presume the counsel for the government of the United States would have interposed and demanded of the Superior Court, on the hearing, the rejection of the claim, on the ground that the evidence did not establish its existence.
From any thing that appears to the contrary, the originals of the proceeding had before the Council of St. Augustine, in 1814, may have been before the Court, and admitted in evidence without objection.
Furthermore, the authenticity of the testimonial made in Arrambide's behalf, at Havana, was sanctioned by the Council of St. Augustine, in March, 1814; that was the tribunal to judge of its character as evidence: and having been treated as an existing and authentic act, this Court cannot, with any propriety at this day, hold otherwise; especially, as not the slightest suspicion attaches to the authenticity of the title papers, such as they are found in the record.
3. Having disposed of the exceptions taken to the existence of the title, we will next inquire what the effect of the testimonial was. We will take for granted that the papers on their face, considered in connexion with the royal order of January 4th, 1813, sufficiently establish the fact, that the power to grant at the particular time when the grant was made, was in the Provincial Deputation at Havanna, and not in the Council of the city of St. Augustine. The Council had imposed on it the duty *332 "to despatch the corresponding title" to the lands granted by the Deputation. And to this end, and with this request, by the petition of Arrambide, was the testimonial laid before the Council in the present instance.
After the title in form was despatched, the proceedings were to be returned to the Provincial Deputation; conforming in this respect to the 12th and 17th articles of the royal order. The resolution of the Council must, therefore, found itself on the testimonial. The Provincial Deputation stated to the Council, "That they granted in property to Arrambide, two leagues square to each point of the compass, of the lands he may choose, from the mouth of New river, which discharges itself on the coast of East Florida, and through Puerta Largo, on the south part, following the same course to the sea shore; conforming as near as possible to the said decree."
New river, and the inlet through which it passes into the ocean, are well known in the geography of East Florida; lying north of the twenty-sixth degree of latitude, on the eastern coast, Fort Lauderdale being now established at the mouth of that river. From the mouth of this river the interested party was authorized to choose the land; and we apprehend it was to be taken on the south part of the river, and was certainly partly on the ocean.
On the 1st of February, 1814, Arrambide, by his petition dated at Havana, solicited the Council of the city of St. Augustine, to expedite to him the title in conformity to the grant of the 4th of December, 1813, in the territory of the province of East Florida, and on the south part thereof.
`The testimonial leaving," says he, "to my choice, the place where I should settle myself; and desiring to possess two leagues to the north of the river Miamies, which is at the north-west side of Largo Byscayno, I pray your honours to be pleased to expedite to me the corresponding title of property for the two leagues of land to each point of the compass, agreeably to this situation: reserving to myself to produce the plat of the said lands, as soon as I find myself prepared to take it out, to commence the establishment, which I am to effect."
The Miamies is a river also well known in the geography of East Florida, and lies about one degree of latitude south of the New river; and at the mouth of which is now Fort Dallas.
*333 The grant made at Havana, was "with the object of establishing on it mills for sawing timber;" such was the representation made by Arrambide to the Deputation, as we are bound to infer from the papers adduced; although the representation does not appear in the record. No survey has ever been made at the mouth of New river; nor could any be made, unless ordered by the Council of St. Augustine; nor has the proposed establishment been made at that or any other place.
On applying to the Local Council of East Florida, Arrambide abandoned his first location, and claimed to select another, in the neighbourhood of a river lying sixty or seventy miles further south. Of the abandonment there can be no doubt. No claim is set up, in the petition, for the land at the mouth of New river, as granted by the Provincial Deputation.
To the grant at Havana, the rule applies which was laid down by Saavedra at the command of Governor Coppinger, in answer to the inquiries of the agent of the Duke of Allegon, and recited in the case of The United States v. Clarke, 8 Peters, 461; that "The assignments of extensive portions of territory, which have been made for the establishment of factories, to persons who did not then comply, nor have since presented themselves to establish their mechanical works, ought also to be considered without any right or value; and said lands perfectly free, that they may revert into the class of public lands." The opinion and report, from which the foregoing is an extract, was recognised as authority by this Court, in the case of The United States v. Wiggins, 14 Peters, 351; and we imagine its accuracy is indisputable. We therefore think, from the facts presented by the record, as also by the laws of Spain, the grant made at the mouth of New river, by the Provincial Deputation, imposed no obligation on the government of Spain, at the date of the treaty of 1819, to confirm the title to Arrambide; and that none rests on the government of the United States, as the successor to the rights and obligations of Spain.
4. Did the concession, made by the Council at St. Augustine, confer any title? It was professedly made in conformity to the authority of the testimonial and decree of the Provincial Deputation of Cuba; and could only be intended to expedite the formal title. The Council neither had, or professed to have in *334 itself, the power to make a new and independent grant to Arrambide; thereby disregarding the commands of its superiors, and of the laws and regulations recently adopted for the government of the provincial authorities, when granting lands. The concession was, therefore, void, for want of power in the tribunal that assumed to make it.
This Court say, in the case of the United States v. Clarke, 8 Peters, 454, 455, that the royal order of the 4th of January, 1813, founded on the decree of the Cortes, seems to have been repealed on the 22d of August, 1814. That it was annulled by the King about that time, there can be no doubt; and it may be, the title of Arrambide would not have been recognised by Spain, after the repeal. So it may have been impossible for him to make the survey, or return the proceedings to the Deputation of Havana, according to any known law, after the repeal; that he had no time to do so, between the 22d of March, 1814, when the Council made the concession, and the 22d of August of that year, when the repeal took place, may be safely assumed: yet, with the very slight information we have on this subject, and of those times in the history of Spain, it has been deemed proper not to institute an inquiry into the effect of the repeal of the royal order of 1813.
The decree below, is for a square of land of twelve English miles; the centre of the tract, to be two leagues northward from the mouth of the Miamies, and two leagues from the sea coast; the lines of the survey to be to the cardinal points of the compass.
The petition of Arrambide, asked of the Council of East Florida, two leagues to each point of the compass, "to the north of the river Miamies." That the land was to have been selected in the neighbourhood of some part of the river, and north of it, is sufficiently plain; but whether near the ocean, or near what other part of the river, does not appear, and for an obvious reason, the grantee reserved to himself, "the right to produce the plat of the said lands, as soon as he found himself prepared to take it out, and to commence the establishment which he was to effect." This was never done, and no particular lands could have been decreed to Arrambide; had the Council at St. Augustine possessed the power to grant. The *335 doctrine on this subject is stated in several cases decided at the present term; and which need not be repeated. It was not possible for the Superior Court to locate any land, as no particular spot was granted; lands not previously granted, were, by the treaty, vested in the United States, as part of the public domain; the public domain cannot be granted by the Courts; this, the decree below attempted to effect: and on this ground, was there no other objection to the decree, it should be reversed; which is ordered; and that the petition be dismissed.
This cause came on to be heard, on the transcript of the record from the Superior Court, for the Southern Judicial District of Florida, and was argued by counsel: On consideration whereof, it is ordered and decreed by this Court, that the decree of the said Superior Court in this cause be, and the same is hereby, reversed and annulled, and that this cause be, and the same is hereby, remanded to the said Superior Court, with directions to dismiss the petition of the claimant.