United States v. Arredondo/Dissent Thompson

Mr Justice THOMPSON, dissenting.

Not concurring in the conclusion to which the court has come in this case, and considering the magnitude of the property involved, not only in this case but in the application of the principles which govern the decision, to other cases, and that the construction now given to the treaty is confessedly at variance with that which has been heretofore adopted, I shall briefly assign my reasons for dissenting from the opinion of the court. It is not my purpose to enter into an examination of all the questions which have been discussed at the bar. The view which I have taken of the case, does not make it necessary for me to do so.

The grant under which the petitioners in the court below set up their claim, bears date on the 22d of December 1817, and is for a tract of land in East Florida, a little short of three hundred thousand acres. It was made by Don Alexander Ramirez, intendant of the island of Cuba, and superintendent of the two Floridas. It recites that the memorial for the same was presented to the intendancy on the 15th of November, then last past, praying a gratuitous

The validity of this claim, depends on the construction of the eighth article of the treaty between the United States and the king of Spain, bearing date the 22d of February 1819. It is contended on the part of the appellees, that under the true construction of this treaty the only questions, open for inquiry are, 1st, whether the grant is genuine, and, 2dly, whether made by lawful authority. That upon the establishment of these points, the treaty, ipso facto, confirms the grant, and closes the door to all further inquiry-the date of the grant being antecedent to that of the treaty. It is admitted that this is a different interpretation of the treaty, from that which has heretofore prevailed in our own government; and the change of construction is rested upon an interpretation of the Spanish language, as used in the treaty, rejecting the English side of that instrument. The treaty when signed was in both languages; and each must be considered as the original language, and neither as a translation. It cannot be said that the English is an erroneous translation of the Spanish, any more than that the Spanish is an erroneous translation of the English. The English side of the eighth article of the treaty reads thus: 'all the grants of land made before the 24th of January 1818, by his catholic majesty, or by his lawful authorities, in the said teritories ceded by his majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent, that the same grants would be valid if the territories had remained under the dominion of his catholic majesty. But the owners in possession of such lands, who by reason of the recent circumstances of the Spanish nation, and the revolutions in Europe, have been prevented from fulfilling all the conditions of their grants, shall complete them within the terms limited in the same, respectively, from the date of the treaty; in default of which the said grants shall be null and void. All grants made since the 24th of January 1818, when the first proposal on the part of his catholic majesty for the cession of the Floridas was made, are hereby declared to be null and void.'

The material parts in which the English and Spanish are said not to agree are, 1st, where the English declares that the grants 'shall be ratified and confirmed,' the Spanish is 'shall remain ratified and confirmed;' and, 2dly, where the English is, 'shall be ratified and confirmed to the persons in possess on of the land,' the Spanish construction is, 'to the persons in possession of the grants;' and, 3dly, in that part of the article which extends the time for fulfilling the conditions, which according to the English, is, to the owners in possession of the 'land,' the Spanish construction is, 'the owners in possession of the grants.' It will readily be perceived that the different readings lead to very different results, and which materially affect the grant in question. If titles are confirmed only to persons in possession of the land at the date of the treaty, the grant in question does not come within the saving; for there is no pretence that Arredondo, or any person claiming under him, was at the date of the treaty in possession of the land, or had done any thing towards fulfilling the conditions upon which the grant was made to depend, and without which it is declared to be null and void. If the construction of the Spanish side of the treaty, as now contended, is to be adopted, and all grants before the 24th of January 1818, are confirmed by the treaty, proprio vigore,-the declaration that they shall be confirmed to the same extent that the same grants would be valid, if the territories had remained under the dominion of his catholic majesty, are entirely nugatory, and must be rejected: for we have no right to enter into the inquiry how far they would be valid under the Spanish government. Such was most manifestly not the intention of the contracting parties; but that the United States should be substituted in the place of Spain, and should carry into execution in good faith the contracts made under the Spanish government for the disposition of the lands, and which the Spanish government was bound ex debito justitiae to carry into execution. The treaty must be considered as made in reference to an established system relative to the disposition of the land in the territories ceded-and that all grants would be open to examination, whether valid or not, according to the rules and regulations established by such system. It seems to be admitted, that if the English side of the treaty is to govern, the grant in question would not come within the saving of the eighth article, unless the date of the treaty is to be considered as of the time it was finally ratified on the 19th of February 1821. Before which time it is contended, the establishment was commenced according to the conditions of the grant. This question will be noticed hereafter.

I do not profess to understand the Spanish language, and shall therefore not undertake to say whether the criticisms are well founded or not. But it must strike any one as a little extraordinary, not only that the negotiators of the treaty should have sanctioned such a material discrepancy; but that congress should have been legislating for ten years past upon the English side of the treaty, different boards of commissioners sitting and trying the titles under such constructions, and that this court should have fallen into the same error, and the mistake not discovered till now.

But admitting this discrepancy, as now contended for, exists between the English and Spanish side of the treaty, the question arises, which must we adopt? I know of no rule that requires a court of justice to reject the English, and adopt the Spanish. If congress in their liberality should think proper to do this, the power could not be disputed, and so far as it extended to the protection of actual bona fide settlers upon the land, the power, in my judgment, would be wisely and discreetly exercised. But it does not seem to me that a court of justice can be called upon, as a matter of courtesy, to yield this to a foreign power, in the construction of a treaty; and no rules of law applicable to the construction of contracts, will, in my judgment, justify it. It certainly will not be pretended that the royal rule of construction applies to this case. That where a grant is made by the king, it is to be taken most beneficially for the king and against the grantee. It is, I think, not claiming too much to consider it a contract between equals, and the rule would be more applicable which requires in such case, that the grant should be construed most strongly against the grantor.

It is certainly true, as a general rule, that all written instruments are to be construed by themselves, without resorting to evidence dehors the instrument, to ascertain the intention of the parties, except where there is a latent ambiguity, which is not the case here. But that principle cannot with propriety be applied to the present case; the difficulty does not arise from any obscurity either in the English or in the Spanish side of the treaty, if considered separately; but from a discrepancy, when compared together; and, in my judgment, presents a proper case for an inquiry into the intention and understanding of the parties who negotiated the treaties.

'Every treaty,' says Vattel, 'must be interpreted as the parties understood it when the act was proposed and accepted.' The lawful interpretation of the contract ought to tend only to the discovery of the thoughts of the author or authors of the contract; as soon as we meet with any obscurity, we should seek for what was probably in the thoughts of those who drew it up, and interpret it accordingly. This is the general rule of all interpretation. That all miserable subtleties and quibbles about words are overthrown by this unerring rule. (Vattel, see 262, p. 228, 230.)

Such understanding, in the present case, is to be collected from written evidence which will speak for itself, and not from parole declarations, which might be misunderstood or misrecollected; and if we resort to such written evidence, no doubt, it appears to me, can remain on the construction of the treaty, that it was not the understanding, either of Mr Adams or Don Onis, that all grants of land made before the 24th of January 1818, by his catholic majesty or his lawful authorities, should be confirmed by the mere force and operation of the treaty.

It is said the treaty does not purport to transfer private property; that all such property is excepted under the second article. This proposition cannot be true in the broad extent to which it has been laid down. It may not transfer private property, but it annuls private property, if every grant, of whatever description, is to be considered private property. For upon this construction, there would be a direct repugnancy between the second and the eighth articles; the latter declares that all grants made since the 24th of January 1818, shall be null and void. But the king of Spain did not consider a mere gratuitous grant, upon conditions which had in no manner whatever been fulfilled, as private property. This must have been the ground upon which he annulled the grants to Alagon, Punon Rostro, and Vargas. So it was understood by Don Onis, as will be shown hereafter by his correspondence. And the same power was assumed over like grants in other cases, where no private right became vested by taking possession, or doing some act towards fulfilling the condition of the grants; and where that has been done, the right is secured to the person in possession, according to the provisions of the eighth article. But let us look at the correspondence between Mr Adams and Don Onis which lead to this eighth article.

The material point of difference between the negotiators in framing this article was, whether it should absolutely confirm all grants made prior to the 24th of January 1818, or only sub modo, so as to enure to the benefit of actual bona fide settlers on the land at the time the treaty was made; and the article resulted in the form in which it now stands.

The article states that the proposition to cede the territory originated on the part of Spain on the 24th of January 1818; or that is assumed as the date, though doubtless there must have been some previous communications on the subject, either here or by our minister in Spain; for Mr Erving, by his letter of the 10th of February 1818, wrote to Mr Adams, that the king of Spain had lately made large grants of land in East Florida to several of his favourites; and that he had been credibly informed, that by a sweeping grant to the duke of Alagon, he had within a few days past given away the remainder. 1st vol. State Papers, 13.

Our government was therefore apprised of what was probably going on with respect to grants in Florida, and must be presumed to have intended to guard against them. On the 24th of October 1818, Don Onis sent to Mr Adams a proposition to cede the Floridas, with the following clause: 'The donations or sales of lands made by the government of his majesty, or by legal authorities, until this time, are nevertheless to be recognized as valid.' On the 31st of October Mr Adams answered, declining his proposal, and requiring all the grants lately alleged to have been made by Spain should be cancelled, and proposed to carry back the time to all grants made after the year 1802. This Don Onis declined, but offered to annul all grants made after the 24th January 1818; saying, that the grants had been made with a view to promote population, cultivation and industry, and not with that of alienating them; and that they should be declared null and void in consideration of the grantees not having complied with the essential conditions of the cession. 1st vol. State Papers, 25, 26.

Again, on the 9th February 1819, Don Onis, in his project of a treaty sent to Mr Adams, reiterates the same provision, that all grants shall be confirmed and acknowledged as valid except those which had been issued after the 24th of January 1818, which should be null in consideration that the grantees had not complied with the conditions of the cessions. 1 S.P. 87.

In all this correspondence we find Don Onis persisting in his claim, that all grants prior to the 24th of January 1818, should be absolutely confirmed; and assigning as the reason why those issued subsequent to that date should be annulled, because the grantees had not complied with the conditions; and we find Mr Adams continually rejecting the proposition to consider the grants before that period absolutely confirmed; and yet it is now insisted that all such are confirmed by the treaty. The subsequent negotiation shows that the article, as it now stands, was put into that shape expressly for the purpose of guarding against such construction, and with the understanding, both of Don Onis and Mr Neuville, who acted in his behalf during a part of the negotiation, that the grants of land dated before as well as after the 24th of January 1818, were annulled, except those upon which settlements had been commenced, the completion of which had been prevented by the circumstances of Spain and the recent revolutions in Europe. It is unnecessary for me to state more particularly this correspondence; the result, as above stated, will be found fully supported by a reference to the correspondence in the first volume of State Papers, pp. 13, 25, 26, 34, 46, 68, 74, 75. There can be no doubt that such was the understanding of Don Onis and Mr De Neuville; and Mr Adams, in a letter to our minister in Spain, whilst the treaty was pending before the king for ratification, states that the reasons why the grants to the duke of Alagon and others were not excluded by name, were: 1, conformably to the desire of Mr Onis to save the honour of the king; and, 2, because from the despatches of Mr Erving it was supposed there were other grants of the same kind, and made under similar circumstances. To have named them might have left room for a presumptive inference in favour of others: the determination was to exclude them all.

That the grant to Arredondo was made under similar circumstances, and liable to the same objections with those to Alagon, Punon Rostro and Vargas, is most manifest. Applications for them all were made within a few months of each other, in the latter part of the year 1817 and beginning of 1818, and no settlements made on either at the date of the treaty: and to consider the treaty as precluding all inquiry into the validity of this grant, appears to me directly in the face of the very words of the treaty, and most manifestly against the clear understanding of those by whom it was made: and such is the construction given to this article by this court in the case of Foster and Elam v. Neilson, 2 Peters, 314.

The court say the words of the article are, 'that all the grants of land made before the 24th of January 1818, by his catholic majesty, &c. shall be ratified and confirmed to the person in possession of the lands, to the same extent that the same grants would be valid if the territories had remained under the dominion of his catholic majesty.' Do these words act directly on the grants so as to give validity to those not otherwise valid, or do they pledge the faith of the United States to pass acts which shall ratify and confirm them? That article does not declare that all the grants made by his catholic majesty before the 24th of January 1818, shall be valid to the same extent as if the ceded territories had remained under his dominion; and yet this is the very construction sought to be given to it in the present case. It does not say that those grants are hereby confirmed. Had such been its language, it would have acted directly on the subject, and would have repealed those acts of congress which were repugnan to it. But its language is, that those grants shall be ratified and confirmed to the persons in possession, &c. By whom shall they be ratified and confirmed? This seems to be the language of contract; and if it is, the ratification and confirmation which are promised, must be the act of the legislature.

Until such act shall be passed, the court is not at liberty to disregard the existing laws on the subject. Congress appears to have understood this article as it is understood by the court. Boards of commissioners have been appointed for East and West Florida, to receive claims for lands, and on their reports titles to lands, not exceeding acres, have been confirmed to a very large amount.

By the act of the 8th of May 1822, 7th vol. Laws U.S. 104, sec. 4 and 5, concerning claims and titles to land within the territory of Florida, persons claiming title under any patent, grant, concession, or order of survey, dated previous to the 24th day of January 1818, which were valid under the Spanish government, or by the law of nations, and which are not rejected by the treaty ceding the territory, are required to file such claim with the commissioners; and power is given to the commissioners to inquire into the justice and validity of such claims. No patent or grant is exempt from such inquiry: and if they are absolutely confirmed by the treaty, how could the justice and validity of them be subject to the examination of the commissioners? And the same principle runs through all the laws in relation to these claims. See acts of 1828, p. 60. 7th vol. Laws U.S. 300.

It appears to me, therefore, that the plain letter of the eighth article of the treaty, the clear and manifest intention of the negotiation, the uniform understanding of congress, and the opinion of this court, all concur in the construction, that grants made prior to the 24th of January 1818 are required to be ratified and confirmed to persons in the actual possession of the lands at the date of the treaty, and to be held valid to the same extent only that they would have been binding on the king of Spain; giving to bona fide grantees in such actual possession, and having commenced settlements, but who had been prevented by the late circumstances of the Spanish nation and the revolutions in Europe from fulfilling all the conditions of their grants, time to complete them.

If, by the true construction of the treaty, the party claiming the benefit of this article must show an actual possession of the land at the date of the treaty, it becomes necessary to inquire what that date is. It was concluded and signed on the 22d of February 1819, ratified by the king of Spain on the 24th of October 1820, and by the United States on the 19th of February 1821; and the question is, which of these periods is to be taken as the date of the treaty? I think the time the treaty was concluded and signed, must be taken as the date. The contracting parties had in view the state and condition of things at that time, and neither could in good faith change such condition so as to affect any stipulations in the treaty. Any other construction would open the door to fraud and imposition. Suppose the eighth article, instead of the 24th of January 1818, had said, all grants of land made before the date of the treaty shall be valid; would that have made valid grants issued after the treaty was signed, and before ratified by the United States? No one, it is believed, would contend for this; and if for any purpose the date as fixed by the instrument would govern, it ought in all cases. The rule should be uniform, and not open to be changed for the purpose of meeting particular cases. The date as fixed in the instrument is the only certain period: the time of ratification is altogether uncertain. Changes may take place between the two periods, materially affecting the negotiation, and the ratification may be delayed for the express purpose of accomplishing some such object.

The true rule on this subject is laid down by Mr Justice Washington, in the case of Hylton v. Brown, 1 Wash. C. C. R. 312; that the treaty, when ratified, relates back to the time of signing. The ratification is nothing more than evidence of the authority under which the minister acted. A government is bound to perform and observe a treaty made by its minister, unless it can be made to appear that he has exceeded his authority. But a ratification is an acknowledgement that he was authorised to make the treaty; and if so, the nation is bound from the time the treaty is made and signed: and it is worthy of notice, that in all the acts of congress in relation to this treaty it is referred to as of the date of 22d February 1819, the time it was signed; thereby showing the understanding of our own government on the subject. If this then is to be taken as the date of the treaty, there is no pretence that at that time, or even when ratified by the king of Spain, any settlement had been made or possession taken of any part of this tract. It is, therefore, in my opinion, a case not coming within the saving provision in the eighth article of the treaty.

But if the time of ratification is assumed as the date of the treaty, no possession of the land had then been taken, within any reasonable construction of the treaty. William H. Hall testifies that he, with two men, by the name of Smith and Lanman, went to Alachua, on the 7th of November 1820, and began to clear some land and erect some buildings. That he soon after went to St Augustine, where he was taken sick and remained some time. That on returning to Alachua, he found some persons there, employed by Mitchell and Arredondo, who were personally disagreeable to him, and he abandoned the project and settlement (record 189); and what became of the others does not appear-they must have abandoned also: for, William H. Simmons testifies (record 174, 176), that he was at Alachua in February 1822; saw five or six houses; Wanton was there, and he understood had been upwards of a year. That on his first visit, there was no other person established there but Mr Wanton, and some negroes. So that in February 1822, one year after the ratification of the treaty by the United States, one white man and a few negroes, who, the witness understood, had been there upwards of a year, were the only persons on the land: and this is claimed to be a possession of nearly three hundred thousand acres of land, within the meaning of a solemn treaty. This view of the case renders it unnecessary for me to enter upon the inquiry respecting the authority of the intendant Ramirez to make the grant in question, or whether the conditions contained in it have been performed, or in any way dispensed with or discharged.

Upon the whole, I am of opinion that the judgment of the court ought to be reversed.