Henry Baldwin

“ 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. ”

“ In the excitement produced by ardent controversy, gentlemen view the same object through such different media, that minds not unfrequently receive therefrom precisely opposite impressions. The court however must see with its own eyes, and exercise its own judgment guided, by its own reason. ”

“ The grants of the governors were universally considered as made by the king through his authorized representatives, and when his authority to grant those lands of the crown, the right to which was perfect by the union of the rights of possession with the reversion, it is scarcely possible that their authority would be more limited as to those in which the king had only a remote ultimate fee. As a matter of policy, it was for the benefit of the king and colony to substitute the possession, settlement and cultivation of the whites for the mere occupancy of the Indians in the pursuit of game ”

“ The authority of the proclamation is in the right of the king to legislate over a conquered country, which, as lord Mansfield says, was never denied in Westminster Hall, or questioned in parliament. If a king comes to a country by conquest, he may alter its laws; but if he comes to it by title and descent, it must be with consent of parliament. He is entrusted with making the treaty of peace; he may yield up the conquest or retain it on what terms he pleases. ”

“ The merits of this case do not make it necessary to inquire whether the Indians within the United States had any other rights of soil or jurisdiction; it is enough to consider it as a settled principle, that their right of occupancy is considered as sacred as the fee simple of the whites. ”

“ It was far different with Spain. On taking possession of the Floridas, after the independence of the United States had been established, with such a formidable, and rival, if not hostile neighbour along the whole line of a narrow and weak province, the friendship of the Indians was a most important consideration. It would have been lost by adopting towards them a less liberal, just, or kind policy than had been pursued by Great Britain, or acting according to the laws of the Indies in force in Mexico and Peru. ”

“ They might, as the new sovereign, adopt any system of government or laws for the territory consistent with the treaty and the constitution; but instead of doing so, all former laws and municipal regulations which were in existence at the cession, were continued in force. It was not necessary for the United States, in the treaty of cession, to enter into any new stipulation to protect and maintain the Indians as inhabitants of Florida, in the free enjoyment of their property, or as nations, contracting parties to the treaties of Pensacola and Walnut Hills with Spain in 1784 and 1793 ”

“ It is clear then that the Indians of Florida had a right to the enjoyment of the lands and hunting grounds reserved and secured to them by this proclamation, and by such tenure and on such conditions as to alienation as it prescribed, or such as the king might afterwards direct or authorise. The Indians had also a right to the full enjoyment of such rights of property as the king might choose to impart to them by any regulation, by treaty or promise made to them by his authority. ”

“ When we look, too, to the very remote contingent interest which the king could have to these lands, consistently with his guarantee to the Indians, there can be no reason perceived why deeds or grants, operating to confirm in full property to the purchasers from the Indians, lands thus guarantied to them, should not be held in a court of equity as valid as original grants of the royal domain. ”

“ Such were the relations between the Indians and Great Britain as established by the proclamation of 1763, and confirmed by subsequent treaties between them from 1765 to 1779, (Record 186, 188) during the period of her dominion over the Floridas. This liberality and kindness to them, with respect for their rights of property in their lands or hunting grounds, would seem to have arisen more from a sense of justice than motives of mere policy, when we consider the position of Great Britain between the treaty of 1763 and the commencement of the revolution. ”

“ 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. ”

“ The land in controversy is claimed by the United States, in virtue of the treary of cession by Spain, by which the territory and sovereignty of the two Floridas were acquired, in consideration of 5,000,000 dollars, paid in extinguishment of certain claims of the citizens of the United States on the government of Spain. ”

“ These powers no man ever disputed; neither has it hitherto been controverted that the king might change part or the whole of the law or political form of government of a conquered dominion. He comes in place of the king of Spain, the former sovereign. (Cowper 204, 213) , in a case arising under this proclamation.) The proclamation of October 1763, then, must be taken to be the law of the Floridas till their cession by Great Britain to Spain in 1783, superseding during that period the laws of Spain which had been before in force in those provinces, so far as they were repugnant ”

“ Though the hope of deciding causes to the mutual satisfaction of parties would be chimerical, that of convincing them that the case has been fully and fairly considered, that due attention has been given to the arguments of counsel, and that the best judgment of the court has been exercised on the case, may be sometimes indulged. ”

“ The fact of the supervision of Indian sales of their land by the governors of provinces and commandants of posts, in acts of confirmation and putting the purchasers in possession, is very clearly established by the report of the land commissioners of the United States in Louisiana. (Record 325-333.) It was exercised by Don Galvez, governor general of Louisiana, as early at least as 1777, in confirming an Indian sale of the great Houma tract on the Mississippi (1 Laws U.S. 551, 552, 554) ”

“ By thus holding treaties with these Indians, accepting of cessions from them with reservations, and establishing boundaries with them, the king waived all rights accruing by conquest or cession, and thus most solemnly acknowledged that the Indians had rights of property which they could cede or reserve, and that the boundaries of this territorial and proprietary rights should be such, and such only as were stipulated by these treaties. ”

“ Such a confirmation by an officer subordinate only to the king, performed so long after the acts done by the governor of a province who was under the control of the captain-general, must be referred to his legitimate authority competent for the purpose. It was done also on the deliberate advice of an officer responsible to the crown, which makes the presumption very strong, if not irresistible, that every thing preceding it had been lawfully and rightfully done. ”

“ These were the treaties which guarantied to the Seminole Indians their lands according to the right of property with which they possess them, and which 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. ”

“ Pursuant to these conditions, John Forbes applied to the captain-general of Cuba, in 1817, for permission to sell the land to the petitioner, which being referred to the assessor-general for his advice, he reported that the lands had been transmitted actually and lawfully in full property to Mr Forbes, with a conditional title, or 'titulo oneroso,' for which acquisition competent permission was given by governor Folch, who delivered titles of confirmation subsequently ”

“ On the contrary, every facility has been given to them. We cannot doubt that the most important documents would be the most immediately forwarded. Those which have arrived have been inspected. They are not believed to vary the case: many of them are undoubtedly important, but they were already in the record, and have been considered. The transfer of all sales of crown lands from the political to the treasury department, from the governor to the intendant, and the ordinance by which this change was effected, were already in possession of the court, and had been maturely considered. ”

“ The warrants issued pursuant to this proclamation for lands then within the Indian boundary, before the treaty of Fort Stanwick's in 1768, have been held to pass the title to the lands surveyed on them, in opposition to a Pennsylvania patent afterwards issued. (Sims v. Irvine, 3 Dallas 427-456.) And all title held under the charter or license of the crown to purchase from the Indians have been held good, and such power has never been denied; the right of the crown to grant being complete, this proclamation had the effect of a law in relation to such purchases ”

“ From the time of the first cession in 1804, the Indians acknowledged the validity of the grants, were satisfied with them, called the land the white land, or the land of the whites, (Record 606) asked permission from the house to hunt upon them, and with the exception of some occasonal depredations, respected their possessions and property. ”

“ VI. The facts and circumstances attending this case, and relied on by the appellants, do not amount to any such acquiescence on the part of the king of Spain and his lawful authorities, as would, according to the laws and usages of that kingdom, vest a valid title in the grantees. And all presumption of such acquiescence is conclusively rebutted by the subsequent grants actually made by the king himself. ”

“ At former terms of this court, on the motions of the counsel for the United States, the case was postponed to enable the government of the United States to procure papers from Madrid and from Havana, which were considered important and necessary in the cause. These motions were always resisted by the counsel for the appellants. ”

“ The lands are in four separate tracts, extending from the mouth of the river St Mark's, outside of the islands along the sea coast, to the west end of St Vincent's island, west of the mouth of the river Appalachicola ”

“ It seems that in that year an application was made for permission to buy lands on the other side of the Bay of Pensacola, to which the reply of the governor and sub-intendant was, if the lands are situated on the side from Yellow Water hitherward, 'I am persuaded they belong to the Indians, even our own careeningground which is in front of this town' (Record 172) : which, according to another report from the surveyor-general, belonged by the treaties with England, to the Indians (Record 175) ”

“ The government has unquestionably made great exertions; we believe all that could be made, to obtain any additional documents which the case may furnish. No difficulty has been opposed by the Spanish government to the inquiries of the American agents. ”

“ Those of the Indians recite the considerations which led to the grants, convey the lands with a warranty of their title by ascertained boundaries (Record 39, 40, 49, 91, 95, 86, 93, 69, 82-84, 29-36, 59, 63, 95-108, 562) ; those of the governor ratify and confirm the grants in full and direct dominion (Record 37, 49, 91, 95, 111) and in full property, put the grantees in possession, and promise to defend and maintain it, (Record 106, 137, 145) all of which he declares is done by using the powers vested in him. (Record 75-91, 30-37, 99, 233, 234.) They are drawn up in great form ”