Page:United States Statutes at Large Volume 3.djvu/756



before the judge of the territorial court at Pensacola, or some other authority in his absence, competent to administer it, take an oath faithfully to discharge the duties of their offices, and shall commence and hold their sessions on or before the first Monday of July next, at Pensacola, and on the first aid and control the general call; and therefore, the head of the lagoon would necessarily have formed one boundary. But it is obvious, more latitude was allowed in the province of Florida, under the government of Spain. The surveyor general having returned that the survey was made according to the grant, and in the absence of other contradictory proof, the claim was confirmed. Ibid. A grant of five miles square, or sixteen thousand acres of land, was made by the Spanish governor of East Florida, at the mouth of the river Santa Lucia. The petition for the grant stated various merits and losses of the petitioner, and asked the grant of five miles square, for the construction of a water saw-mill. The grant was given for the purpose mentioned, “and also paying attention to the services and other matters set forth in the petition.” No survey under the grant was made by the surveyor general of Florida; but a survey was made by a private surveyor. The survey did not follow the calls of the grant, and no proof was given that it was made at the place mentioned in the grant. The survey and plat were not made according to the established rules relative to surveys to be made by the surveyor general under such grants. Nor was the plat made with the proportion of land on the river required by the regulations. The superior court of Florida held that the grant having been made in consideration of services rendered by the grantee, as well as for a water saw-mill, it was valid without the erection of the mill; but the survey was altogether void, and of no effect. The decree of the superior court of Florida, by which the grant and survey were confirmed, was remanded to the superior court of Florida; that court to order the sixteen thousand acres granted, to be surveyed according to the principles stated in the opinion of the Supreme Court. It has often been held that the authorities of Spain had the power to grant the public domain in accordance with their own ideas of the merits and considerations presented by the grantee; and that the powers of the Supreme Court of the United States extend only to the inquiry, whether, in fact, the grant had been made, and its legal effect when made, in cases where the law by implication introduced a condition, or it was peculiar in its provisions. No special ordinance of Spain introduces conditions into mill grants. The United States v. Hanson, 16 Peters, 196. The certificate of a private surveyor, that he had permission from the governor of the territory to make a survey of the land granted, is no evidence of the fact. There is a marked and wide difference in the effect of the certificate of the surveyor general and of a private individual, who assumed to certify without authority. Ibid. A grant by a Spanish governor of Florida meant not, as in the states of the United States, a perfect title; but an incipient right, which, when surveyed, required confirmation by the governor. The duty of confirmation by the acts of Congress is deputed to the courts of justice of the United States, in execution of the treaty with Spain. Ibid. The same credence that was accorded to the return of the surveyor general by the Spanish government, is due to it by the courts of the United States. Plats and certificates, because of the official character of the surveyor general, have accorded to them the force and character of a deposition. Ibid. A grant of fifteen thousand acres by the Spanish governor of East Florida, in consideration of important services performed in behalf of the government of Spain, to George Atkinson, confirmed by the Supreme Court. By the eighth article of the Florida treaty, no grants of land made after the 24th of January, 1818, were valid; nor could a survey be valid on lands other than those authorized by the grant. Still the power to survey in conformity to the concessions existed up to the change of flags. United States v. Clarke, 16 Peters, 228. Spain had the power to make grants founded on any consideration and subject to any restrictions within her dominions. If a grant was binding on that government, it is so on the United States, the successor of Spain. All the grants of land made by the lawful authorities of the king of Spain, before the 24th of January, 1818, were by the treaty ratified and confirmed to the owners of the lands. Ibid. The grant to Atkinson was for the land he mentioned in his petition, or for any other lands that were vacant. Three surveys were made of the lands within the quantity granted, not at the place specially mentioned in the grant, but at other places. Held, that these surveys were valid, notwithstanding that they were made at different places. Ibid. A claim for eight thousand acres of land in East Florida, founded on a petition of Domingo Acosta to governor Coppinger, made on the 20th of May, 1816. The petition stated that services had been performed by the claimant for the defence, support and advancement of the town of Fernandina, which had never been rewarded. Governor Coppinger gave a decree in favour of the petitioner, “it being the will of the sovereign that the merits of his subjects should be rewarded.” The originals of the petition and decree were not produced, they having been lost; but a certificate signed by Don Thomas Aguilar, the secretary of the government, was exhibited, which stated that the copies of the petition and decree, which were given in evidence, had been faithfully drawn from the originals in his office. Four plats and certificates of survey, made by Clarke, surveyor of the province; two of which surveys were made before the 24th January, 1818, and one on the 14th February, 1818; and another on the 20th January, 1820; were given in evidence without objection, in the court below, to show the location of the land claimed. The decree of the superior court of Florida, in favour of the claimant, was affirmed. The United Stats v. Acosta, 17 Peters, 16. The official certificates of the secretary of the government of Florida, during the dominion of Spain over the territory, after evidence that no originals could be found in the proper office, was sufficient evidence of the copies of the petition and decree of the governor; no proof having been given to contradict or impair the force of the same. Ibid. The governor of the territory of Florida, as the deputy of the king of Spain, was the sole judge of the merits on which the claim stated in the petition was founded; and he had undoubted power to reward the merits of the grantee. This has been so decided in many cases. Ibid. Although in the governor’s decree, there may be no description of any place where the land granted