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Florida v. Georgia (58 U.S. 478)/Opinion of the Court

IN 11 How. 293, it is reported that the State of Florida filed a bill in this court, in the exercise of its original jurisdiction, against the State of Georgia to establish a boundary between them. The State of Georgia answered, and other proceedings were had; but the case was not yet at issue, nor was all the testimony taken upon which the parties proposed to rely.

At the present term, the attorney-general appeared in court and filed the following information, moving at the same time for leave to intervene on behalf of the United States for the reasons stated in the information.

Now, on this 15th day of December, 1854, Caleb Cushing, attorney-general of the United States, in his proper person comes here into the court, and for the said United States gives the court to understand and be informed, that a certain bill of complaint is pending in said court, by or in behalf of the State of Florida, complainant, against the State of Georgia, defendant, wherein is in controversy a certain portion of the boundary line between said States, and of the lands contiguous thereto.

That by Mariano D. Papy, attorney-general of the State of Florida, formal notice in the name and behalf of said State has been given to the United States that the matter of said bill is of interest and concern to the said United States.

That, by inspection of said bill of complaint, it appears that the State of Florida alleges that the portion of boundary line in question should run, commencing at the junction of the Flint and Chattachoochee Rivers, and thence in a straight line to a point at or near a monument commonly called Ellicott's Mound, at the assumed head of the River St. Mary's, which line has been survyed by the surveyors of the United States, and is known as McNeil's line, or howsoever otherwise the same may be described or designated.

That in said bill of complaint the State of Florida further alleges, that the State of Georgia pretends that, commencing at the junction of the Flint and Chattahoochee Rivers, as aforesaid, the said line should run to a point called Lake Spalding, or a point called Lake Randolph.

It further appears that the said points of Lake Spalding and Lake Randolph are situated about thirty miles to the south of said Ellicott's Mound, and the effect will be, if the pretence of the State of Georgia be sustained, to transfer to said State of Georgia a tract of land in the shape of a triangle, having a base of some thirty miles, and equal sides each of the length of about one hundred and fifty miles, comprehending upwards of one million two hundred thousand acres of land, which have been considered and treated heretofore as public domain of the United States, and surveyed as such, and much of which has accordingly been sold and patented by the government as of the territory of East Florida acquired from Spain.

And for the information of the court herein, the attorney-general files, annexed to this motion:--

1. A certified copy of the (cautionary) traverse line so surveyed in 1825, by said McNeil.

2. A certified copy of the filed-notes of said traverse line so surveyed.

3. A certified copy of the map of the (cautionary) true line, plotted from traverse line, by said McNeil.

4. An official copy of diagram of surveyor-general of the United States for Florida, of surveys of public lands of United States in said State, to September 30, 1853.

Whereupon, and in consideration of the interest and concern of the United States manifestly apparent in said bill of complaint, the said attorney-general of the United States prays the consideration of the court here, and moves the court that he be permitted to appear in said case, and be heard in behalf of the United States, in such time and form as the court shall order.

This motion was opposed by the States, and was argued by the Attorney-General, in behalf of the United States; by Mr. Badger and Mr. Berrien, on behalf of the State of Georgia, and by Mr. Westcott and Mr. Johnson, on behalf of the State of Florida.

Upon a question of this character, where 'the file affords no precedent,' the reporter would be pleased if be could report the arguments of counsel in extenso; but want of room compels him to submit to the reader only the following condensed and imperfect sketch of the respective arguments.

Mr. Cushing began with a general view of the subject of intervention, how it was considered in other countries, Spain, France, and England, and particularly the latter; and how far the English doctrines had been recognized in the United States. He then passed from the subject of intervention between private persons to cases where the attorney-general interfered, both in England and this county. He then considered the effect of the act of congress, (1 Stats. at Large, 93,) establishing the office of attorney-general, and making it his duty 'to prosecute and conduct all suits in the supreme court in which the United States shall be concerned;' and contended that, if the government cannot be heard in this case by intervention, it cannot be heard at all.

His argument under the 15th and 16th heads is given entire.

15. If there were no precedents to justify the right claimed for the attorney-general, then the court should make one, in deference to the great principle of equity laid down by Lord Cottenham, in Taylor v. Salmon, that it is the duty of the court of chancery 'to adapt its practice and course of proceeding, as far as possible, to the existing state of society, and to apply its jurisdiction to all those new cases which, from the progress daily making in the affairs of men, must continually arise; and not, from too strict an adherence to forms and rules established under very different circumstances, decline to administer justice, and to enforce rights for which there is no other remedy.' Taylor v. Salmon, 4 Mylne and Craig, 141.

This court has repeatedly decided that it has ample power to regulate chancery practice for the new and purely American question, of suits in equity between States; subject, of course, to the control of congress in this respect. Grayson v. State of Virginia, 3 Dal. 320; Huger v. State of South Corolina, 3 Ib. 371; State of New York v. State of Connecticut, 4 Ib. 1; State of New Jersey v. State of New York, 5 Pet. 283; State of Rhode Island v. State of Massachusetts, 12 Pet. 657.

It can as well provide rules in equity, according to the exigencies of the case, for this first example of the more complex contingency of the collateral interest of the United States in a suit between two States, as it could for the primary and simple contingency of the suit between two States of itself.

If there be no rule in the files applicable to the case, then it is the very time for the court to exercise the double equity power, (reversing the order in which Bacon describes it,) tam supplendi defectum legis quam subveniendi contra rigorem legis.

16. It will not answer to say that the United States may appear in the name of the State of Florida.

§ 1. If so, then the condition of the United States, in the premises, is precarious, depending on the discretion of the State of Florida, or of any other State which may stand in like circumstances.

Self-defence on the part of the government will no longer be its right, but a favor to be granted or withheld by any litigant State. The essence of a right is, that it may be exercised contentiously, adversely. Ubi jus ibi remedium. Right is a thing determinate, fixed, established. Rego, rectum, regula,-all belong to the same set of ideas.

§ 2. The proposed appearance for the United States is not a volunteer act; for the State of Florida demands of the general government to intervene. The attorney-general of that State officially notifies the attorney-general of the United States of their interest depending on this question with Georgia.

But a case might arise in which neither of two or more litigant States desired the presence of the United States.

The matter before the court is, therefore, of a legal principle to be determined, not of a privilege to be conceded, or of one enjoyed indirectly, under favor of a State.

§ 3. Nor is the possibility of distinct and separate rights, on the part of the United States, a suggestion or supposition merely.

The United States have granted certain lands, by patent, to individuals, or by statute cession, to Florida, which, according to the claims of Georgia, belonged to her, not to the United States. Here is responsibility of the latter to its grantees.

The warrantor comes in because of his responsibility to his grantee, but also in order to see that the case is fully and well tried, with all just defences fully before the court, either technical or of the merits.

§ 4. The rights of the United States might be prejudiced in a suit between two States through the forms of law.

The constitution provides (Art. 1, § 3) as follows:--

'3. New States may be admitted by the congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the congress.'

By the constitution, also, (Art. 1, § 10,) 'No State shall, without the consent of congress,. . . enter into any agreement or compact with another State.'

These two clauses of the constitution are in pari materia, and to be construed together; and they establish that two States cannot change their common boundary without consent of congress.

The United States have a general interest in the question of the boundaries of States, because of sundry political or legislative relations of the subject: as, for instance, apportionment of members of the house of representatives, collection districts, judicial districts, and many other things having reference to the boundaries of States.

Treaty rights may likewise be involved, as in the present case, where the line in dispute is defined by the treaty of 1783 between the United States and Great Britain, art. 2, (8 Stats. at Large 81,) and by the treaty of 1795 between the United States and Spain, art. 2, (8 Ib. 140.) These treaties are a part of that supreme law, which it is the peculiar duty of the United States, its officers, and its tribunals, to maintain and execute.

Special acts of congress may be in question, as here in the present case.

By the act of March 3, 1845, for admitting the State of Florida into the Union, (5 Stats. at Large, 743, ch. 63, § 5,) 'said State of Florida shall embrace the territories of East and West Florida, which, by the treaty of amity, settlement, and limits between the United States and Spain on the 22d day of February, 1819, were ceded to the United States.'

And by the 7th section of that act, the State of Florida was admitted into the Union upon the express condition that the State shall never interfere with the primary disposal of the public lands within the State, nor levy any tax on the same whilst remaining the property of the United States.

The attorney-general, in proposing to intervene here to protect the interests of the United States, desires to do so, not as a technical party; not as joining with the one or the other party; not in subordination to the mode of conducting the complaint or defence adopted by the one State or by the other, nor subject to the consequences of their acts, or of any possible mispleading, insufficient pleading, omission to plead, or admission or omission of fact by either or both; but free to co operate with, or to oppose both, or either, and to bring forth all the points of the case according to his own judgment, whether as to the law or to the facts; for ex facto oritur jus.

As the States of Florida and Georgia cannot, by any direct agreement or contract between them, without the consent of congress, change the boundary of Florida, as established by the said act of congress, it follows that they ought not to be permitted to alter that boundary in the suit pending, either by possible mispleading, mistake in pleading, omission of pleading, or direct confession, or by omission of evidence, by any of which means the true, faithful, and full view of all the facts pertinent to the question might be withheld from the view and judgment of the court.

As the public domain and jurisdiction in East and West Florida, were acquired from Spain by the United States, and thereafter the territory so acquired by the United States was admitted into the Union with its boundaries so defined, and with the reservation to the United States of the disposal of the public lands, and that they be free of taxation by the State whilst they remain the property of the United States, the conclusion seems to be inevitable, (supposing this court to have original jurisdiction on the direct question of the primitive right of the boundaries,) that the attorney-general ought to be suffered to intervene fully and completely, to protect the interests of the United States, without being prejudiced by any acts or omissions of either of the litigant States, whether Florida or Georgia.

Otherwise, and without power to show the possible mistakes, errors, omissions, mispleadings, insufficient pleadings, and improper admissions or agreement of the two, or of the one or the other, the means of protecting the public interests would be wholly inadequate to the end; and two States might, by their own acts, by pleadings, or their agreement entered of record in the suit, change the true and lawfully established boundary between them to the direct prejudice of the interests, rights, and laws of the United States.

It is on this consideration, among others, that the whole doctrine of equity, as to the necessity of proper parties in court, stands. Each party interested is to defend his own rights, lawfully according to his view of their merits, without being prejudiced through the acts or omissions of any co-party. See Story's Equity Pleadings, ch. 4.

§ 5. If the United States are not present, no decree in the case can be made to the prejudice of the United States.

Mr. Badger and Mr. Berrien, on behalf of the State of Georgia, opposed the motion, upon the following grounds, namely:--

The object of the motion, as appearing on its face and as explained by the brief of the attorney-general, is: That he, on the part and as the representative of the United States, may be made a party to this suit in fact, but not in form; may exercise all the rights of a party without becoming a party; may be, without seeming to be, a party.

On the part of the State of Georgia, it is insisted that the motion cannot be granted, because,

1. Under the constitution, this court has not and cannot have any jurisdiction of this cause, but as a controversy between States of the Union; and the appearance of any other party therein would determine the jurisdiction and put the cause out of court.

2. To allow the United States to become in fact a party, without appearing on the record to be one, would be a mere evasion of the constitutional inhibition, involving all the guilt of a deliberate violation of that instrument, accompanied and enhanced by an artful contrivance to conceal it; a violation in substance though not in form, and therefore utterly unworthy of this high constitutional court.

3. If the motion should be granted, the United States would judicially appear on the record to be a party, though not made so by the process or in the manner usual in this court; and, therefore, the jurisdiction of the court would, at once, be gone.

4. There is no precedent or example of any such intervention as is here sought to be obtained.

We put aside all the references in the learned brief to proceedings under the civil law, as being utterly irrelevant to the question; for that law neither gives the rule of judgment nor regulates the practice of this court. This cause is one of equity jurisdiction, governed, as to the principles of decision, by the law of courts of equity, and by the statutes and treaties of the United States, and as to the course of proceeding by the practice of the court of chancery in England, in subordination to the paramount authority of the rules of this court. If, therefore, it could be demonstrated that what the attorney-general asks is, and always has been, allowed as of right or of grace in all the courts of France, the German States, and other countries of continental Europe, we should not be advanced one title towards showing the right or the propriety of allowing it to be done here.

In England, no intervention, whether voluntary or involuntary, if that term may be properly used in this connection, is known, except by the intervener becoming a party, and submitting his rights in the matters in dispute to the decision of the tribunal, so that its judgment shall conclude those rights. There, whatever may be the case in other European countries, no process has ever been applied or understood, in virtue of which one not a party to the record may interpose between two litigants, contest their rights or the rights of one of them, embarrass and obstruct their proceedings, direct or control their management of the controversy, and taking all the chances of obtaining a judgment against one of them, binding upon the rights of both, may retire at the conclusion of the contest with his own rights unaffected by a judgment adverse to his claims.

On the contrary, where third persons are found to have such an interest in the subject of litigation that they ought to be heard before a judgment, these persons are required to be made parties, to the intent that all persons in interest may be concluded by the final award of the tribunal. This is emphatically true in regard to equity proceedings in the court of chancery, and not less in regard to the crown than to private persons. This is abundantly evident from cases cited by the attorney-general in support of his motion. For example:--

(The counsel then cited and commented on the cases of Penn v. Baltimore, 1 Ves. Sen., 444; Hovenden v. Annesley, 2 Sch. and Lef. 607; Attorney-General v. Galway, 1 Molloy, which established that the king must be a party.)

5. The United States is not 'concerned' in the questions involved in this cause, within the meaning of the act of congress prescribing the duties of the attorney-general; that term means, concerned in interest, and is exactly equivalent to 'interested,' and cannot be used in any other meaning in reference to an impersonal sovereignty like the United States. The cases cited show what is the nature of that interest of the king which makes it necessary in England that he should be a party; for example, a contest between two of his grantees claiming at rents of different value, where it appears upon record that the success of him who holds at the smaller rent will be immediately and certainly prejudicial to the crown revenue, and like cases.

Here no interest of the United States appears on the record. It is a question merely as to the boundary between two States. However resolved, the United States gains no right and suffers no loss, neither of the States holding under the United States as a tenant, or owing any payment or other duty to the United States, for or on account of her possession or jurisdiction. The only parties having any seeming interest in the question, besides the two States, are those having lands upon the disputed territory, whose titles may be, but are not necessarily, affected by a judgment against the plaintiff. The United States have no interest, real or apparent, and therefore are not a necessary or even a proper party to the controversy. The cases referred to by the attorney-general, in which the United States are represented by him officially in this court, are all consistent with the view here taken. Actions, for instance, brought in the name of heads of departments as such, are suits of the United States, as truly as an information in the name of the attorney-general, or the master of the crown office, is, in England, the king's suit, &c.

6. Supposing the United States to have some interest, indirect, consequential, and contingent, in the decision of the question in the cause, and supposing that in England such an interest of the crown might be represented by the attorney-general there, it doth not follow that the attorney-general here can assume, virtute officii, to represent such interest.

7. Even an act of congress could not enable him to intervene for the United States in this suit in this court. For, if made a party, either the court would proceed with a party, not a State before it, in which case, according to the constitution, this court cannot hold original congnizance, or dismiss the bill for want of jurisdiction; and thus a jurisdiction conferred by the constitution expressly and exclusively upon this court would be withdrawn from it by force of an act of congress, and in defiance of the constitution.

Upon the whole, it clearly appears that the court cannot grant the motion of the attorney-general.

What then remains to be done? If the United States have any consequential interest which ought to be represented, the court cannot, as did the lord chancellor in Reeve v. The Attorney-General, 2 Atkins, 223, dismiss the bill in order that proceedings might be taken in another court, for there is no such court; this court, and this only, having cognizance of the controversy between the two States; and the court cannot decline the exercise of its exclusive jurisdiction over the two principal parties, because of such incidental and subordinate interests.

We submit, as a necessary and inevitable consequence, that the court must proceed with the cause between the present parties, without intervention, formal or informal, of any third party whatever.

Mr. Westcott and Mr. Johnson, on behalf of the State of Florida, opposed the motion for the following reasons:--

1. That the jurisdiction of this court, in this case, is founded exclusively upon those clauses of the federal constitution which declare that 'the judicial power of the United States shall extend' 'to controversies between two or more States,' in connection with that clause which provides that 'in those cases (referring to the cases enumerated in the constitution, as being of federal judicial cognizance,) in which a State shall be a party, the supreme court shall have original jurisdiction.'

2. That the clauses of the federal constitution cited, extending the federal 'judicial power' 'to controversies between two or more States,' refer exclusively to cases in which States only are parties therein, and make such cases a distinct and separate class from all the other cases enumerated in the constitution; and they do not reach or apply to any case, whether at law or in equity, wherein there is a co-plaintiff or a co-defendant, other than a State, with a State or States; and if it be conceded that in a suit in equity, in this court, under any other of the constitutional provisions, a complainant hath a right to join the United States, or any corporation, or officer, or individual, interested in such suit, as a party complainant or defendant; or that the attorney-general of the United States hath authority to make the United States such party; or that this court possesses power to order the joinder as parties of all interested, as in an ordinary case in equity, in the English, or in our state chancery courts; it is nevertheless insisted by complainant, that in this 'controversy between two States,' such courses cannot be pursued; and this, though an act of congress allowing the same had been or should be passed.

3. That if the court should hold that the point secondly above stated is erroneous, and that the joinder of another party, not a State, with the State of Florida, as co-complainant, or with the State of Georgia, as co-defendant, would not affect the jurisdiction of this court over the present case, as invoked by the complainant in the bill filed, under the clauses of the federal constitution above cited, (and especially referred to in said bill,) then it is insisted that the complainant cannot, without an act of congress authorizing the same, make the United States a party to this bill; even if the consent of the attorney-general of the United States is given therefor; and that, without such law, this court doth not possess the power to order, (either ex mero motu, or upon the express application of said attorney-general, or at the instance of either or both of the litigant States,) such joinder of the United States as a party complainant or party defendant in this case.

4. That insomuch as the United States, in the admission, by act of congress, of the Floridas, as a sovereign and independent State into the federal union, yielded to that State all rights of sovereignty or 'eminent domain' they had within the boundaries of the States, as declared by the state constitution; and thereby became a mere proprietor of the unsold and ungranted lands included within said boundaries; they have not now any higher or other prerogatives, in reference to this 'controversy,' than a citizen or alien proprietor of land situate on the territory in dispute between the two litigant States, the titles of said proprietors of such lands being derived from the United States; and consequently, if the claim of the State of Georgia is sustained, will be destroyed; nor than the several thousand residents of said territory, who have, up to this time, been considered resident citizens of the State of Florida, and have exercised the rights, privileges, and immunities of such citizenship, and whose state allegiance will be changed by a decree of this court confirming the claim of the State of Georgia; and the complainant insists that the rights and interests of all said proprietors, (including the United States,) and of said residents, are, in this regard, entirely subordinate to those of the State of Florida, now in contest, and are subject to her action as their political sovereign in the premises.

5. That by reason of the anomalous character of a suit at law or in equity 'between two or more (sovereign and independent) States,' involving their rights of sovereignty, as well as of property; instituted in virtue of a federative compact, before a judicial tribunal, by legal process, summoning a defendant State to the bar of the court to submit her claims, and abide by the arbitrament and decree of that tribunal, from which decision there is no appeal; most of the rules or procedure in ordinary cases before the courts of common law or of chancery in England, are inapplicable to such suit, ineffective as aids to counsel in its prosecution or defence, and useless to the court in its investigation of the 'controversy,' or in its arbitrament and decision; and, by consequence, additional, different, and extraordinary formula of procedure, must be prescribed by the court, and conformed to by the parties, in every 'controversy' before this court, 'between two or more States.'

6. That in the adoption of such necessary, additional, different, and extraordinary rules of procedure, 'in controversies between two or more States,' brought before this court, it is not restricted to guides furnished by the rules of procedure of the English common law or chancery tribunals, (wherein no like case is to be found;) nor, in the determination of such case, is this court limited to the consideration of the principles supplied by the English systems of jurisprudence, to which such case is unknown, and the principles controlling it are above the reach and beyond the scope of those systems: and, therefore, whensoever a departure from English rules and theories will facilitate and speed the settlement of the controversy, will aid in the better protection of all just rights and interests involved, whether of the States who are the 'parties,' or of others not 'parties,' this court may rightfully invoke systems of jurisprudence and rules of procedure, in the tribunals of other countries, and with especial propriety resort to the principles and rules of the 'civil law' of the continent of Europe, (the original source of much of the common law and most of the chancery law of England, but of more enlarged and liberal applicability;) or, this honorable court rightfully may, in a case so peculiarly and exclusively American, and its jurisdiction whereof is so entirely based on the constitutional compact between the States, devise, adopt, and enforce such original rules of procedure, appropriate to such case, as, in its judgment, may best tend to 'establish justice,' 'insure domestic tranquillity,' and promote the other declared objects of that compact; and this, though there cannot be cited any transatlantic precedent or example therefor.

7. That, as there are involved in this case not only the rights of sovereignty and of property, in controversy between the two litigant States, but also important rights and interests of others not parties in the record, founded on the identical facts and law to be submitted to the court, as the basis of its decree therein, all which rights and interests of those not parties will necessarily be affected if not conclusively determined by said decree; the complainant concedes the rightfulness and propriety of this court so devising the rules of procedure in this case, as to allow those immediately interested, though not parties, the privilege and opportunity of maintaining and defending their rights and interests, and of adducing proofs, and of being heard in argument before this court to that end; and that the same should be done in such liberal form and to such full extent as may be consistent with the progress of the cause, without embarrassment or prejudice to the parties, and as will not abridge or compromit the rights of the respective parties to the exclusive control and management of the mode and means of enforcing their own rights and interests; and the complainant also concedes, that insomuch as the title of the United States to some 1,200,000 acres of unsold and ungranted lands claimed to be what are usually designated as 'public lands of the United States,' of the estimated value of $1,200,000, and of which the United States are the constitutional trustees for the several States of the confederacy, and the people thereof; and, insomuch as the liability of the federal treasury to refund large amounts paid into it as purchase-money, by patentees of the United States, for lands heretofore sold by the United States to them, and also to pay large sums for improvements and for damages, will be affected and in some respects determined conclusively, if the claim made by Georgia (suggested in the bill of complaint) be established by this court, which amounts and sums will probably exceed $1,500,000; this complainant, whilst she denies any special prerogative appertaining to the United States as a government, or any special privilege of the attorney-general of the United States, virtute officii, to interfere in this case, except as aforesaid; yet, because of all said premises above set forth, and especially for the reason that the United States cannot be made a party complainant or defendant in this case, doth concede that the rules of procedure so adopted by this court may rightfully and properly be extended in this case, as aforesaid, to the United States, and that the attorney-general may be allowed to 'intervene,' as he hath applied to the court, under such restrictions as above suggested by complainant, or such others as may be deemed proper by this honorable court.

8. That if it be held by this honorable court, that the complainant is in error as to the points above presented; and that the United States may be made a party complainant or a party defendant in this case, either without an act of congress therefor, or by authority of an act that may be passed therefor; and that such joinder is necessary for the protection of the admitted important rights and interests of the United States involved therein as aforesaid; then, this complainant respectfully insists, that if no act of congress be requisite to enable them to be made such party, this honorable court ought not to dismiss the said bill of complaint, for that the complainant did not join them as such party in said bill, but should stay proceedings and the decision in the case till the same be done, under an order of this court therefor; and if such act of congress be deemed proper and necessary, that a suggestion thereof be made in this case by this honorable court, in an order to stay proceedings in the case, until the executive and legislative departments of the federal government may be enabled to adopt such course in that behalf, upon the application of this complainant, as they may respectively deem advisable to that end or otherwise in the premises.

Mr. Chief Justice TANEY delivered the opinion of the court.

The court proceed to dispose of the motion made by the attorney-general for leave to be heard on behalf of the United States, in the suit between the State of Florida and the State of Georgia.

It appears that the boundary line between these two States is in controversy, and a bill has been filed in this court by the State of Florida to ascertain and establish it.

The attorney-general has filed an information, stating that the United States are interested in the settlement of this line; that the territory in dispute contains upwards of one million two hundred thousand acres of land, and was ceded to the United States by Spain as a part of Florida; and that the United States have caused the whole of it to be surveyed as public land, and sold a large portion of it, and issued patents to the purchasers. And upon these grounds he asks leave to offer proofs to establish the boundary claimed by the United States, and to be heard, in their behalf, on the argument.

The motion is resisted on the part of the States, and the question has been fully argued by counsel for the respective parties. And as it is, in some degree, a new question, and concerns rights and interests of so much importance, we have taken time to consider it.

If the motion was merely to be heard at the argument, there would, we presume, have been no opposition to it on the part of the States. For it is the familiar practice of the court to hear the attorney-general in suits between individuals, when he suggests that the public interests are involved in the decision. And he is heard, not as counsel for one of the parties on the record, but on behalf of the United States, and as representing their interests. This was done in several instances at the last term, where the United States had sold lands as a part of the public domian, which were claimed by individuals under grants alleged to have been made by France or Spain previous to the cession to this country.

In these cases, however, they were argued by the attorney-general upon the evidence produced by the respective parties. No new evidence was offered on behalf of the United States. And the objection now made is, that he cannot be permitted to adduce evidence in the case, unless the United States are parties on the record; and that they cannot, under the provisions of the constitution, become parties in this court, in the legal sense of the term, to a suit between two States.

We proceed to consider this objection.

The constitution confers on this court original jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party. And it is settled, by repeated decisions, that a question of boundary between States is within the jurisdiction thus conferred.

But the constitution prescribes no particular mode of proceeding, nor is there any act of congress upon, the subject And at a very early period of the government a doubt arose whether the court could exercise its original jurisdiction without a previous act of congress regulating the process and mode of proceeding. But the court, upon much consideration, held, that although congress had undoubtedly the right to prescribe the process and mode of proceeding in such cases, as fully as in any other court, yet the omission to legislate on the subject could not deprive the court of the jurisdiction conferred; that it was a duty imposed upon the court; and in the absence of any legislation by congress, the court itself was authorized to prescribe its mode and form of proceeding, so as to accomplish the ends for which the jurisdiction was given.

There was no difficulty in exercising this power where individuals were parties; for the established forms and usages in courts of common law and equity would naturally be adopted. But these precedents could not govern a case where a sovereign State was a party defendant. Nor could the proceedings of the English chancery court, in a controversy about boundaries, between proprietary governments in this country, where the territory was subject to the authority of the English government, and the person of the proprietary subject to the authority of its courts, be adopted as a guide where sovereign States were litigation a question of boundary in a court of the United States. They furnished analogies, but nothing more. And it became, therefore, the duty of the court to mould its proceedings for itself, in a manner that would best attain the ends of justice, and enable it to exercise conveniently the power conferred. And in doing this, it was, without doubt, one of its first objects to disengage them from all unnecessary technicalities and niceties, and to conduct the proceedings in the simplest form in which the ends of justice could be attained.

It is upon this principle that the court appear to have acted in forming its proceedings where a State was a party defendant. The subject came before them in Grayson v. Virginia, 3 Dal. 320. And the court there said that they adopted, as a general rule, the custom and usage of courts of admiralty and equity, with a discretionary authority, however, to deviate from that rule where its application would be injurious or impracticable. And they at the same time passed an order directing process against a State to be served on the governor or chief magistrate, and the attorney-general of the State. This was in 1796. And the principle upon which its process was then framed, as well as the mode of service then prescribed, has been followed ever since, with this exception, that in subsequent cases the chancery practice, and not the admiralty, is regarded as furnishing the best analogy. But the power and propriety of deviating from the ordinary chancery practice, when the purposes of justice require it, have been constantly recognized; and were distinctly asserted in the case of Rhode Island v. Massachusetts, 14 Pet. 247, and again in the same case, in 15 Pet. 273, and was recognized in the case of New Jersey v. New York, 5 Pet. 289.

We proceed to apply these principles to the case before us. It is manifest, if the facts stated in the suggestion of the attorney-general are supported by testimony, that the United States have a deep interest in the decision of this controversy. And if this case is decided adversely to their rights, they are without remedy, and there is no form of proceeding in which they could have that decision revised in this court or anywhere else. Justice, therefore, requires that they should be heard before their rights are concluded. And if this were a suit between individuals, in a court of equity, the ordinary practice of the court would require a person standing in the present position of the United States, to be made a party, and would not proceed to a final decree until he had an opportunity of being heard.

But it is said that they cannot, by the terms of the constitution, be made parties in an original proceeding in this court between States; that if they could, the attorney-general has no right to make them defendants without an act of congress to authorize it.

We do not, however, deem it necessary to examine or decide these questions. They presuppose that we are bound to follow the English chancery practice, and that the United States must be brought in as a party on the record, in the technical sense of the word, so that a judgment for or against them may be passed by the court. But, as we have already said, the court are not bound, in a case of this kind, to follow the rules and modes of proceeding in the English chancery, but will deviate from them where the purposes of justice require it, or the ends of justice can be more conveniently attained.

It is evident that this object can be more conveniently accomplished in the mode adopted by the attorney-general, than by following the English practice in cases where the government have an interest in the issue of the suit. In a case like the one now before us, there is no necessity for a judgment against the United States. For when the boundary in question shall be ascertained and determined by the judgment of the court, in the present suit, there is no possible mode by which that decision can be reviewed to re examined at the instance of the United States. They would therefore be as effectually concluded by the judgment as if they were parties on the record, and a judgment entered against them. The case, then, is this: Here is a suit between two States, in relation to the true position of the boundary line which divides them. But there are twenty-nine other States, who are also interested in the adjustment of this boundary, whose interests are represented by the United States. Justice certainly requires that they should be heard before their rights are concluded by the judgment of the court. For their interests may be different from those of either of the litigating States. And it would hardly become this tribunal, intrusted with jurisdiction where sovereignties are concerned, and with the power to prescribe its own mode of proceeding, to do injustice rather than depart from English precedents. A suit in a court of justice between such parties, and upon such a question, is without example in the jurisprudence of any other country. It is a new case, and requires new modes of proceeding. And if, as has been urged in argument, the United States cannot, under the constitution, become a party to this suit, in the legal sense of that term, and the English mode of proceeding in analogous cases is therefore impracticable, it furnishes a conclusive argument for adopting the mode proposed. For otherwise there must be a failure of justice.

Indeed, unless the United States can be heard in some form or other in this suit, one of the great safeguards of the Union, provided in the constitution, would in effect be annulled.

By the 10th section of the 1st article of the constitution, no State can enter into any agreement or compact with another State, without the consent of congress. Now, a question of boundary between States is, in its nature, a politica question, to be settled by compact made by the political departments of the government. And if Florida and Georgia had, by negotiation and agreement, proceeded to adjust this boundary, any compact between them would have been null and void, without the assent of congress. This provision is obviously intended to guard the rights and interests of the other States, and to prevent any compact or agreement between any two States, which might affect injuriously the interest of the others. And the right and the duty to protect these interests is vested in the general government.

But, under our government, a boundary between two States may become a judicial question, to be decided in this court. And, when it assumes that form, the assent or dissent of the United States cannot influence the decision. The question is to be decided upon the evidence adduced to the court; and that decision, when pronounced, is conclusive upon the United States, as well as upon the States that are parties to the suit. Now, as in a case of compact, it is, by the constitution, made the duty of the United States to examine into the subject, and to determine whether or not the boundary proposed to be fixed by the agreement is consistent with the interests of the other States of the Union; it would seem to be equally their duty to watch over these interests when they are in litigation in this court, and about to be finally decided. And, if such be their duty, it would seem to follow that there must be a corresponding right to adduce evidence and be heard, before the judgment is given. For this is the only mode in which they can guard the interests of the rest of the Union, when the boundary is to be adjusted by a suit in this court. For, if it be otherwise, the parties to the suit may, by admissions of facts and by agreements admitting or rejecting testimony, place a case before the court which would necessarily be decided according to their wishes, and the interest and rights of the rest of the Union excluded from the consideration of the court. The States might thus, in the form of an action, accomplish what the constitution prohibits them from doing directly by compact. Nor is this intervention of the United States derogatory to the dignity of the litigating States, or any impeachment of their good faith. It merely carries into effect a provision of the constitution, which was adopted by the States for their general safety; and, moreover, maintains that universal principle of justice and equity, which gives to every party, whose interest will be affected by the judgment, the right to be heard.

Upon the whole, we think the attorney-general may intervene in the manner he has adopted, and may file in the case the testimony referred to in the information, without making the United States a party, in the technical sense of the term; but he will have no right to interfere in the pleading, or evidence, or admissions of the States, or of either of them. And, when the case is ready for argument, the court will hear the attorney-general, as well as the counsel for the respective States; and, in deciding upon the true boundary line, will take into consideration all the evidence which may be offered by the United States, or either of the States. But the court do not regard the United States, in this mode of proceeding, as either plaintiff or defendant; and they are, therefore, not liable to a judgment against them, nor entitled to a judgment in their favor. We consider the attorney-general as the proper officer to represent the United States in this court; and that the general government, in bringing before us for consideration the rights and interest of the Union in the question to be decided, does nothing more than perform a duty imposed upon it by the constitution. And, as the mode in which that duty is to be performed here is not regulated by law, but must depend upon the rules and regulations prescribed by the court, we shall not embarrass the proceedings by endeavoring to conform them strictly to English precedents and pleadings, and regard the mode in which the information on behalf of the United States has been presented, to be the simplest and best manner of bringing their interest before the court, and of enabling it to do justice to all parties whose rights are involved in the decision.

Mr. Justice McLEAN, Mr. Justice DANIEL, Mr. Justice CURTIS, and Mr. Justice CAMPBELL, dissented.

Ordered, that the attorney-general have leave to adduce evidence, either written or parol, and to examine witnesses and file their depositions, in order to establish the boundary claimed by the United States.

After the motion of the Attorney-General for leave to intervene in this suit had been decided, Mr. Westcott and Mr. Johnson, on behalf of the State of Florida, moved for leave to take out commissions to examine witnesses in the case, and for sundry orders to expedite the case and prepare it for trial.

Among the orders moved for was the following:--

'That (the consent of the State of Florida being hereby given thereto) the attorney-general of the United States may, in behalf of the United States, use the name of said complainant whenever he may deem it advisable that the United States should sue out any commission, to take any testimony or procure any proofs in said cause; he giving notice thereof to the solicitors or counsel for said parties, as aforesaid.'

This part of the motion was opposed by the counsel for the State of Georgia; and, in behalf of that State, a motion was made to appoint a commissioner and surveyor to survey the premises in dispute, and take testimony and report to the court; the motion stating particularly how the duty was to be performed. This motion was opposed by the counsel for the State of Florida.

The questions were argued by Mr. Westcott, for the omplaintant, and Mr. Badger, for the defendant.

Mr. Chief Justice TANEY delivered the opinion of the court.

The court have considered the above motions.

The motion to authorize the attorney-general of the United States to take testimony, and to conduct the proceedings on behalf of Florida, with the assent of the State, is refused. Each State must conduct its proceedings for itself. Whatever the attorney-general does in the case must be for the United States, and in the name of the United States, and with reference to their interest or duty in this controversy.

The motion on behalf of the State of Georgia, to appoint one or more persons to make the necessary surveys and to report their opinion to the court, is also overruled. Each party is at liberty to cause surveys to be made, and maps prepared and filed, by such person as the State may select, or, if they can agree, they may jointly appoint one. And these surveys and maps, and the proofs applicable to them, will be examined and considered by the court at the hearing, with the other testimony. But the court do not deem it advisable to appoint one or more persons to make these surveys and examinations, as officers of the court; and think the case will be better brought before them by leaving each State to act for itself.

The court, therefore, overrule the motions; and, for the purpose of preparing the case for hearing, make the following order:--

On consideration of the several motions filed yesterday by the complainant's counsel, and of the arguments of counsel thereupon had, as well in support of as against the same, it is ordered by the court that the said motions be and they are hereby overruled. And it is further now here ordered by the court, that the said parties in said cause be allowed until the first Monday of December, 1855, to obtain, take, and file the testimony and proofs, by said parties respectively to be adduced and given in evidence, on the hearing of said cause; and that, to enable said parties respectively so to do, commissions, in the usual form, be issued by the clerk, to examine witnesses, upon application of either party, accompanied by interrogatories, a copy whereof has been served upon the adverse party, or its solicitor or counsel, twenty days previous to such application, in order that cross-interrogatories may be filed within said twenty days by such adverse party; and that the commissioner or commissioners in each instance, if not agreed upon by the counsel of the respective parties, be named by the chief justice or one of the associate justices of this court; and that, forthwith, on the return of any commission executed, the clerk do open and file the same, and cause the same to be printed for the use of said parties.

And also, that any exceptions to testimony may be taken at the final hearing; and, if exceptions be then taken to the competency of testimony, which the opposite party can remove by further proof, the court will reserve the decision, and give time to the party to produce it.

And also, that said cause be set for final hearing on the bill, answer, replication, exhibits, testimony, and proofs, so adduced, filed, and admitted, on the second Monday of January, 1856, unless cause be then shown to the court for the continuance thereof.


text: Talk:Florida v. Georgia (58 U.S. 478)/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text: United States v. Ritchie

title: United States v. Ritchie


text: Talk:United States v. Ritchie

title: Talk:United States v. Ritchie


text:
United States v. Ritchie/Opinion of the Court

THIS was an appeal from the district court of the United States for the northern district of California.

The act of congress respecting the claimants to land in California, and the title of Solano, under whom Ritchie claimed, are so particularly set forth in the opinion of the court, that the reporter has nothing to add upon those topics.

It was argued in this court by Mr. Cushing, (attorney-general,) for the United States, and by Mr. Bibb, for the appellee.

The brief of Mr. Cushing became expanded into a printed argument of eighty-eight pages, of which the following is a mere outline:--

The act of congress passed on the 3d of March, 1851, (9 Stats. at Large, 631,) contains a clause which is declaratory of the general principles of law, by which the decisions of land claims in California are to be governed. It is in these words:--

'The commissioners herein provided for, and the district and supreme courts, in deciding on the validity of any claim brought before them under the provisions of this act, shall be governed by the treaty of Guadaloupe Hidalgo, the law of nations, the laws, usages, and customs of the government from which the claim is derived, the principles of equity, and the decisions of the supreme court of the United States, so far as they are applicable.'

Mr. Cushing analyzed these five sources of authority separately, with a view to settle and ascertain the principles of law which bore upon the case; and, in the course of his argument, discussed, at great length, the question how the laws, usages, and customs of a foreign government were to be proved. Proceeding to this particular case, he contended that Mariano Guadaloupe Vallejo, under whom Ritchie claims, had no title to convey, the pretended title in him being, for various reasons, null and void in law and equity.

I. Of the conveyance from Solano to Guadaloupe Vallejo.

§ 1. The claimant assumes that, by reason of the 12th and 13th articles of the plan of Iguala, Indians in Mexico may take, hold, and sell lands.

To which the reply is:--

1. They might do this, not only since, but before the plan of Iguala, beyond all doubt, as will be shown hereafter.

2. The plan of Iguala neither increased nor diminished the power of Indians, in this respect.

3. The true question is not, whether an Indian could, in California, hold and sell land, but under what circumstances and conditions.

4. Thus, any free citizen of the United States can take, hold, and sell lands; but the law imposes forms of conveyance, without which there can be no valid sale; and it also prescribes certain safeguards of conveyances by whole classes of citizens, such as married women, minors, and others, to prevent their being defrauded.

In the discussion of these points, he discarded entirely the testimony of the witnesses in California, and contended that they must be decided by the Recopilacion de Indias, which was the law of the Mexican Republic, except where any of its provisions may have been repealed, either expressly, or by necessary implication, since the separation from Spain. This code, Lib. 6, Tit. 1, l. 37, Law 27, 1572, forbade Indians from selling their land, unless with permission of the court, and in pursuance of a prescribed form.

The provisions of this law, he contended, had never been repealed. The plan of Iguala and the treaties of Cordova did not repeal them. This plan and these treaties, together with the other Mexican authorities, were then particularly examined. The special legislation of the several Mexican States, on the subject of Indians, afforded conclusive evidence that the plan of Iguala did not repeal this law, (27,) or any other law of the Recopilacion de Indias, for the protection of the Indians. Our own laws for their protection, by forbidding conveyances, are analogous to this Spanish law.

As to the confirmation of Solano's title by the departmental assembly in 1845, Mr. Cushing contended that such confirmation did not enure to the benefit of Vallejo, the grantee, for these reasons:--

1. The purchase of Solano was not authorized by law.

2. Solano had no authority to make a valid covenant in relation to the land, or title thereto.

3. There was not, in fact, any covenant for further assurance in this instrument which could enure to the benefit of Vallejo.

Passing to anothr branch of this case, Mr. Cushing contended that the alleged grant to Solano, and conveyance by him to Vallejo, were fraudulent and void as against the Mexican government; that Vallejo was commandant of Sonoma, and Solano was his bailiff of overseer, and that Solano's name was used merely to cover the fraud. He further contended, that the missions were not the subject of the colonization law. The following is a summary of his points:--

1. The alleged sale from the Indian, Solano, was not made in the presence of a justice, and by public vendue; and was, therefore, null and void, even supposing Solano to have had a good title from the Mexican government.

2. This defect is not cured by the action of the departmental assembly, which does not relate back, nor enure for the benefit of Vallejo.

3. The case rests mainly on the testimony of Vallejo, who, having conveyed to Ritchie, with covenants of seisin and warranty, was incompetent, as a witness, to prove the title.

4. No title passed from the government to Solano, the whole transaction being a fraud, of which Solano was the instrument, for the benefit of Vallejo.

5. The land, being mission land, was not colonizable; and, therefore, the pretended grant to Solano was null and void.

6. Being mission land, if (which is denied) Solano acquired any interest therein, he could not lawfully convey it to Vallejo by any form of conveyance whatever; and on his possession ceasing, the land reverted to the public domain.

7. The pretended title of Vallejo, through Solano, was only a fraudulent device to cover the plunder, by him, of a part of the mission lands of San Francisco Solano.

8. The land is not shown to be at the necessary distance from the frontier to make it subject to colonization.

9. Of course, Vallejo, having no title, could convey none to Ritchie, and the land appertains to the public domain of the United States.

Mr. Bibb's first two points related to the nature of the conditions upon which the estate was granted-a matter that will be more especially noticed in the next case, of the United States v. Fremont. His third point was: The United States have not prosecuted a review of the decision of the commissioners in the manner and form required by the 9th section of the act of March 3, 1851, to ascertain and settle the private land claims in the State of California, (9 Stats. at Large, 632, ch. 41,) and therefore have no grounds, no standing, no foundation whereon to pray this court to review and reverse the decision of the commissioners.

The 9th and 10th sections of this act, he contended, were not repealed by the 12th sect. of the act of 1852, (Stats. at Large, 99, ch. 108.)

IV. The time when the attorney-general received a transcript of the proceedings and decision of the commissioners does not appear in the record, and it does not appear to the court that the notice was filed with the clerk of the district court within the period of time prescribed by the 12th section of said act of 1852, that the appeal would be prosecuted by the United States; therefore, the appeal ought to be regarded as dismissed.

The final decree of the board of commissioners was pronounced and recorded January 3, 1853; the notice by the attorney-general, that appeal would be prosecuted, was filed with the clerk September 20, 1853; seven months and sixteen days had intervened; so the filing of the notice with the clerk might have been after the lapse of six months from the time the attorney-general had received a transcript of the proceedings and decision of the commissioners.

As the period of limitation began to run and to be accounted from the time of a fact known only to the attorney-general, who gave the notice, the time that he received the transcript ought to have been made to appear on the record of the district court; which fact, if it had been alleged by the plaintiff, would have been traversable by the respondent. But the total disregard by the plaintiff of the provisions of the 9th section of the act of 1851, deprived the defendant, Ritchie, of the opportunity to rely upon the statute of limitations in the district court.

V. The title under which the appellee holds, was complete and perfect-a legal title, under a grant by the executive branch of the Mexican government, approved by the legislative branch, and consummated by the judicial branch, by juridical possession delivered to the grantee, under which the land was inhabited, improved, cultivated, and enjoyed by the owner in fee, long before and at the treaty of Guadaloupe Hidalgo.

By that treaty, the United States acquired no right of the soil included in this grant; nothing but the political powers, jurisdiction, and sovereignty, under a special stipulation that the owners of property should be protected in the enjoyment thereof.

Before that treaty, this land had been so completely severed from the public domain of Mexico, so perfectly vested in the grantee by a legal title in fee, that no right of property in the land passed to the United States.

VI. By the laws, usages, and customs in California, all persons, without any distinction between races, had capacity to take and alienate lands. Upon this point of the case, Mr. Bibb's citations were very numerous.

1. The governor and departmental assembly considered that Solano's being an Indian did not prevent him from holding land.

2. The laws, customs, and usages of the Mexican government permitted it. Proof of this was in the record by witnesses.

3. These laws, usages, and customs are to be proved as facts.

4. No Christian nation, who planted colonies in North or South America, ever denied to the aborigines the capacity of holding lands as tribes, and of selling them in subordination to the governing nation.

5. But Spain did not consider the Indian right to be that of mere occupancy and perpetual possession; but a right of property in the lands they held under the guaranty of treaties, and so highly respected that, in the establishment of treaties, post by royal order, the site thereof was either purchased from the India or occupied with their permission, as that of St. Mark's. 9 Pet. 752.

6. The capacity of native Indians and their descendants to take individually, by grant in fee-simple, is acknowledged in various treaties between the United States and different tribes of Indians.

7. No nation of white people, who have ever established themselves and their government in America, (however proud and confident in their superiority over the red men who were found in the occupancy of the lands,) have ever denied that the Indians were human beings entitled to the rights of humanity, to the natural rights of holding, and acquiring, and alienating property, real and personal, including the rights of marriage and descent. Here, let us call to mind the marriage of Mr. Rolfe, the white man, with Pocahontas, the Indian princess, whose descendants have held and now hold places of honor and profit, and large estates, real and personal; and let us not forget the virtues of Pocahontas, her courageous acts and noble darings in the cause of humanity, which have made her character illustrious, and her portrait worthy of a niche in the capitol of the United States of America.

8. By the decree of the supreme government of the United Mexican States of 1824, (before quoted,) foreigners, as well as Mexicans were endowed with the capacity to receive grants of land, and to establish themselves thereon. Was Francisco Solano neither a foreigner nor a Mexican? Were native civilized Indians, converted to the Christian faith, in full communion with the established Catholic church, excluded from the privilege of acquiring lands by grants directly from the government?

9. The historical evidence of the revolutions in Mexico, confirms the position that the Indians were capable of buying and selling lands. The plan of Iguala, and treaties of Cordova, and other public documents, all recognize the right.

VII. Although the grant has been so made to Solano in fee, yet it is said that Solano was not authorized, and had not capacity, to sell.

Suppose, for the sake of argument, it were so. Would the act of Solano, in making the deed of bargain and sale, make the grant to him void ab initio; annul his capacity to have and to hold, and convey the land to the United States?

The conveyance by Solano to Vallejo was 10th June, 1842; the treaty of Guadaloupe Hidalgo was signed 2d February, 1848; the ratifications were exchanged 30th May, 1848. During this interval, between the sale and conveyance by Solano and the treaty of Gaudaloupe Hidalgo, the Mexican government never complained of any breach of any condition in this grant to Solano; never instituted any proceeding to divest Solano or his heirs, or the alienee, Vallejo, of the title, and reunite it to the public domain.

At the date of the treaty, Solano was living on the land, and died therein, in or about the year 1851; and his alienee, Vallejo, was also in possession and cultivating the land from 1842, until his sale and conveyance to Ritchie, in August, 1850.

VIII. The attorney-general alleges the grant to Solano to have been collusive and fraudulent.

Mr. Bibb examined the facts in the case.

Mr. Justice NELSON delivered the opinion of the court.

This is an appeal from a decree of the district court for the northern district of California.

The proceedings were originally commenced before the board of commissioners to settle private land claims in California, under the act of congress of March 3, 1851. (9 Stats. at Large, 631.)

A petition was filed before that board by Ritchie against the United States, setting forth a claim to a tract of land known by the name of 'Suisun,' situate in the jurisdiction of Sonoma, county of Solano, comprising four square Mexican leagues, (nearly 18,000 acres,) praying that the title might be confirmed. The title claimed is derived from a grant by Juan B. Alvarado, governor of California, to Francisco Solano, dated January 28, 1842.

The commissioners, after hearing the proofs in the case, on the 3d of January, 1853, ordered that the title be confirmed to the claimant.

On the 19th of May, 1853, a transcript of the proceedings before the board, with their decision, was filed with the clerk of the United States district court for the northern district of California; and on the 20th of September, 1853, notice of an appeal from the decision to the district court was filed with the clerk by the attorney-general of the United States.

Further testimony was taken in the case, and heard before the court; and at a special term, held at the city of San Francisco on the 8th of November, 1853, the decision of the board of commissioners was confirmed.

The case is now before us on an appeal from the decree of the district court.

Objections have been taken on the part of the appellee to the jurisdiction of the district court, to hear and determine the case; and, also, to the regularity of the appeal from the board of commissioners-assuming the court had jurisdiction-which it will be necessary first to notice.

By the 8th section of the act already referred to, it was made the duty of the commissioners, within thirty days after their decision, to certify the same, with the reasons on which it was founded, to the district attorney of the United States of the district in which the decision was rendered. And by the 9th section, it is provided that in all cases of rejection or confirmation of any claim by the board, it should be lawful for the claimant or district attorney, on behalf of the United States, to present a petition to the district court praying for a review of the decision; and that the petition, if presented by the claimant, should set forth the nature of the claim, &c., together with a transcript of the report of the board, and of the documentary and other evidence on which it was founded. And the petition, if presented by the district attorney, shall be accompanied by a transcript of the board, &c., and shall set forth the grounds upon which the claim is alleged to be invalid; and a copy of the petition shall be served upon the opposite party; and the party upon whom the service shall be made shall be bound to answer the same within the time prescribed by the judge of the district court, &c. And by the 10th section, it is made the duty of the district court to proceed and render judgment upon the pleadings and evidence in the cause, and upon such further evidence as may be taken by order of the said court; and, on the application of the party against whom the judgment is rendered, to grant an appeal to the supreme court of the United States. And by the 12th section, to entitle either party to a review of the board of commissioners, notice of the intention to file a petition in the district court shall be entered on the journal of the board within sixty days after the decision of the claim has been notified to the parties; and the petition shall be filed in the district court within six months after the decision has been rendered.

The mode above prescribed for removing the case from the board of commissioners to the district court was subsequently changed by the 12th sect. of the act of congress passed 31st August, 1852, (10 Stats. at Large, 99.)

This section provides that, in every case in which the board of commissioners shall render a final decision, it shall be their duty to have two certified transcripts of their proceedings and decision, and of the papers and evidence on which the same were founded, made out, one of which transcripts shall be filed with the clerk of the proper district court, and the other transmitted to the attorney-general of the United States; and the filing of such transcript with the clerk shall, ipso facto, operate as an appeal of the party against whom the decision shall be rendered; and if such decision shall be against the private claimant, it shall be his duty to file a notice with the clerk of the court within six months thereafter, of his intention to prosecute the appeal, and if the decision shall be against the United States, it shall be the duty of the attorney-general, within six months after receiving the said transcript, to cause notice to be filed with the clerk aforesaid, that the appeal will be prosecuted by the United States. And on the failure of either party to file such notice with the clerk, the appeal shall be regarded as dismissed.

The removal of the proceedings before the board of commissioners, in this case, to the district court, took place in conformity with the provisions of the act of 1852, and, it is urged by the counsel for the appellee, that it is defective for not complying with the requirement of the 9th section of the act of 1851, in respect to the petition to the district court therein provided for. But we are of opinion that the 12th section of the act of 1852 virtually repeals this section, and thereby dispenses with the petition and answer, as preliminary steps to the hearing in the district court. They clearly are not essential to the removal of the cause, or perfecting of what is called the appeal, as the 12th section of the act of 1852 makes the filing of the transcript returned by the commissioners operate, ipso facto, as an appeal in favor of the party against whom the decision had been rendered.

The filing of the petition and answer in the district court, prescribed by the 9th section, presenting, in the form of pleadings, the issue to be tried, would have been more in conformity with the practice of courts; but, looking to the nature and character of the questions to be heard and determined in these proceedings before the court, the pleadings cannot be of any very great importance, especially as these questions have already been the subject of examination by both parties before the board of commissioners. The question of practice in the partieular case is rather a matter of form than of substance.

It is objected, further, that the 12th section of the act of 1852 makes no provision for notice to the party in whose favor the decision has been rendered by the commissioners, of the appeal to the district court, and that a hearing may be had there, and the decision reversed in his absence. But he has notice of the appeal, as the filing of the transcript by the board, according to the act, has that effect; and then ordinary diligenee will enable the party to be heard on the appeal. Besides, the court has the power, doubtless, to regulate the time of the hearing, and provide for reasonable notice by its rules, so as to prevent surprise.

It is also objected, that the law prescribing an appeal to the district court from the decision of the board of commissioners is unconstitutional; as this board, as organized, is not a court under the constitution, and cannot, therefore, be invested with any of the judicial powers conferred upon the general government. ''American Ins. Co. v. Canter,'' 1 Pet. 511; Benner v. Porter, 9 How. 235; United States v. Ferreira, 13 Ib. 40.

But the answer to the objection is, that the suit in the district court is to be regarded as an original proceeding; the removal of the transcript, papers, and evidence into it from the board of commissioners being but a mode of providing for the institution of the suit in that court. The transfer, it is true, is called an appeal; we must not, however, be misled by a name, but look to the substance and intent of the proceeding. The district court is not confined to a mere re examination of the case as heard and decided by the board of commissioners, but hears the case de novo, upon the papers and testimony which had been used before the board, they being made evidence in the district court; and also upon such further evidence as either party may see fit to produce.

In this respect, the proceeding is somewhat analogous to that before the district court, under the act of congress, 26th May, 1824, §§ 1, 3, (4 Stats. at Large, 52, 53,) concerning French and Spanish grants in the State of Missouri, which had been previously heard before a board of commissioners for confirmation. In these cases, the evidence before the board was received on the hearing in the district court.

This brings us to the merits of the case.

It appears, from the evidence in the case, that Francisco Solano, from whom the appellee derives title, was in the possession and cultivation of the land in question as early as 1832 or 1833; and that, on the 16th January, 1837, he applied for a provisional grant of the same, from M. G. Vallejo, the military commander of the northern frontier of Upper California, and director of colonization. The proceedings are as follows:--

'To the Commandant-General:--

'Francisco Solano, principal chief of the unconverted Indians, and born captain of the 'Suisun,' in due form, before your honor, represents: That, being a free man, and owning a sufficient number of cattle and horses to establish a rancho, he solicits from the strict justice and goodness of your honor that you be pleased to grant him the land of the 'Suisun,' together with its known appurtenances, which are a little more or less than four square leagues, from the 'Portzuela to the Salina de Sucha.' Said land belongs to him, by hereditary right from his ancestors, and he is actually in possession of it; but he wishes to revalidate his rights in accordance with the existing laws of our republic, and of the colonization recently decreed by the supreme government.

'He therefore prays that your honor be pleased to grant him the land which he asks for, and to procure for him, from the proper sources, the titles which may be necessary for his security, and that you will also admit this on common paper, there being none of the corresponding stamp in this place.

'(Signed) FRANCISCO SOLANO.

'Sonoma, January 16, 1837.'

'Sonoma, January 18, 1837.

'The undersigned grants, temporarily and provisionally, to Francisco Solano, chief of the tribes of this frontier and captain of the 'Suisun,' the lands of that name, as belonging to him by natural right and actual possession. Said land is comprehended between the 'Portzuela and the Salina de Sucha.' The party interested will ask from the governmental of the state the usual titles, in order to make valid his rights in conformity with the new order of colonization.

'(Signed) M. G. VALLEJO.'

He continued in the possession and occupation down to 1842, when an application was made by his attorney, Vallejo, to Juan B. Alvarado, constitutional governor of the department of California, for a title in form to the tract, as follows:--

'[SEAL.] To his Excellency the Governor:--

'The undersigned, a resident of Sonoma, respectfully appears before your excellency, and representation makes, that, in virtue of the rights which belong to him, as shown in the annexed petition and marginal decree, he is in actual possession of the land known by the name of 'Suisun,' together with its dependencies; and, in order to secure and legalize said ownership, he humbly petitions that your excellency, in consideration of the document referred to, may be pleased to grant him the corresponding title of concession, perpetual and hereditary, of the aforesaid land, in order that, in no time, may the petitioner or his heirs be molested in the pacific enjoyment of his property.

'Wherefore, your petitioner prays that your excellency will deign to grant him the favor which he asks for, he swearing that he is actuated by no malice, and such other oath as is required, &c., &c.

'As attorney of the petitioner,

'(Signed) JUAN ANTONIO VALLEJO.

'Monterey, January 15, 1852.'

'Monterey, January 28, 1842.

'In consideration of the petition at the beginning of this expediente, the report of the commandant-general, and the merits and services of the Indian called Francisco Solano, rendered on the frontier of Sonoma, I declare him to be owner in fee of the place called 'Suisun,' in extent four square leagues, and with the boundaries shown in the corresponding map. The corresponding patent will be made out, and this expediente directed to the most excellent departmental junta for its approbation.

'Juan B. Alvarado, constitutional governor of the department of the Californias, thus ordered, decreed, and signed. Of which I certify.'

And, on the 21st January, 1842, the title in form was granted, as follows:--

'[SEAL.] Juan B. Alvarado, constitutional governor of the department of the Californias.

'Whereas the aboriginal Francisco Solano, for his own personal benefit and that of his family, has asked for the land known by the name of 'Suisun,' of which place he is native, and chief of the tribes of the frontiers of Sonoma, and being worthy of reward for the quietness which he caused to be maintained by that unchristianized people; the proper proceedings and examinations having previously been made, as required by the laws and regulations; using the powers conferred on me in the name of the Mexican nation, I have granted to him the above-mentioned land, adjudicating to him the ownership of it. By these presents, being subject to the approbation of the most excellent departmental junta, and to the following conditions, to wit:--

'1. That he may inclose it, without prejudice to the crossings, roads, and servitudes, and enjoy it freely and exclusively, making such use and cultivation of it as he may see fit; but within one year he shall build a house, and it shall be inhabited.

'2. He shall ask the magistrate of the place to give him juridical possession of it, in virtue of this order, by whom the boundaries shall be marked out; and he shall place in them, besides the landmarks, some fruit or forest trees of some utility.

'3. The land herein mentioned is to the extent of four 'sitios de ganado mayor,' (four square leagues,) with the limits as shown on the map accompanying the respective expediente. The magistrate who gives the possession will have it measured according to ordinance, leaving the excess that may result to the nation, for its convenient uses.

'4. If he shall contravene these conditions, he shall lose his right to the land, and it may be denounced by another.

'In consequence, I order that these presents be held firm and valid, that a register be taken of it in the proper book, and that it be given to the party interested, for his voucher and other purposes.

'Given this twenty-first day of January, one thousand eight hundred and forty-two, at Monterey.

'(Signed) JUAN B. ALVARADO.

'(Signed) MANUEL JIMENO, Secretary.'

On the 3d October 1845, the grant was approved by the departmental assembly, as follows:--

'Most Excellent Sir:--

'The committee on vacant lands has ordered the expediente, formed at the instance of the Indian, (Indigena,) Francisco Solano, for the place known by the name of 'Suisun,' and being satisfied that the proceedings had in the said expediente were sufficient for the purpose, that the superior government should have granted the said place, offers to the deliberation of your excellency the following proposition:--

'The grant made by the superior government of the department by a title legally issued, with the date 28th January, 1842, in favor of the Indian, (Indigena,) Francisco Solano, of the place known by the name of 'Suisun,' and situated in the jurisdiction of Sonoma, in accordance with the law of August 18, 1824, and article 5 of the regulations of November, 1828, is approved.

'Hall of the committee, in the city of Los Angelos, September 29, 1845.

'(Signed) FRANCISCO DE LA GUERRA.

'(Signed) MARCESO BARTELA.'

'Angelos, October, 3, 1845.

'In session of this day, the proposition of the foregoing report was approved by the most excellent departmental assembly, ordering the original expediente to be returned to his excellency the governor, for suitable purposes.

'(Signed) PIO PICO, President.

'(Signed) AUGUSTIN OLONA, Secretary.

'On the same day, the proper copy was issued to the party interested.'

The tract was duly surveyed, the boundaries fixed, and the grantee put in judicial possession, in conformity with the conditions of the grant, and which possession corresponded with the provisional possession previously ceded to him in 1837.

On the 10th May, 1842, Solano sold and conveyed the premises to Mariano Guadaloupe Vallejo, in full property, for the consideration of one thousand Mexican dollars; and, on the 29th May, 1850, Vallejo sold and conveyed the same to A. A. Ritchie, the appellee, for the consideration of fifty thousand collars.

No question is made as to the genuineness and good faith of the original grant to the Indian, Solano, nor but that it was made by the competent authority of the government to dispose of the public lands.

The only objections taken to its validity, and upon which it is denied that it had the effect and operation to separate the lands granted from the public domain, are: 1. That Solano, being an Indian, was not competent, according to the laws of Mexico concerning the disposition of the public lands at the time of the grant, to take and hold real property; and hence, that the grant by the governor, and approved by the departmental assemply, was inoperative and void; and, 2. That, if it should be held that Solano was competent to take and hold real property, still, the grant is void, on the ground that the tract known by the name of 'Suisun' belonged to the mission lands in California, which the public authorities of that department had no power to grant.

1. In answer to the first objection, we are referred to the plan of Iguals, adopted by the revolutionary government of Mexico, 24th February, 1821, a short time previous to the subversion of the Spanish power in that country, in which it is declared, that 'all the inhabitants of New Spain, without distinction, whether Europeans, Africans, or Indians, are citizens of this monarchy, with a right to be employed in any post according to their merit and virtues;' and that 'the person and property of every citizen will be respected and protected by the government.' We are also referred to the treaty of Cordova, 24th August, 1821, between the Spanish viceroy and the revolutionary party, by which the independence of the country was for the time established; and to the declaration of independence issued 28th September, 1821, all reaffirming the principles of the plan of Iguala.

Two decrees of the first Mexican congress are also referred to; one adopted 24th February, 1822, and the other 9th April, 1823.

The first: 'The sovereign congress declares the equality of civil rights to all the free inhabitants of the empire, whatever may be their origin in the four quarters of the earth.' The other reaffirms the three guarantees of the plan of Iguala: 1. Independence. 2. The Catholic religion; and 3. Union of all Mexicans of whatever race.

There is, also, another act of the Mexican congress of the 17th September, 1822, carrying into practical effect this fundamental principle of the new government, as follows: 'The sovereign Mexican constituent congress, with a view to give due effect to the 12th article of the plan of Iguala, as being one of those which form the social basis of the edifice of our independence, has determined to decree and does decree,

'Art. 1. That in every register and public or private document, on entering the name of citizens of this empire, classification of them with regard to their origin shall be omitted.

'Art. 2. That although by virtue of the preceding article, there shall be no distinction of class on the parochial books, that which is at present observed will be continued in the regulations for the graduation of the civil and ecclesiastical taxes, until these shall be arranged in some other method more just and proper.'

In consistency with this fundamental principal of the Mexican government, as declared in the several acts above referred to, namely, the citizenship of all the inhabitants, without distinction of blood or race, is the 9th article of the decree of 18th August, 1824, on colonization, which provides, that 'in the distribution of the lands, Mexican citizens are to be preferred, and between them no distinction shall be made except such only as is due to special merit and services rendered to the country, or in equality of circumstances, residence in the place to which the lands to be distributed are pertinent; and the 16th article provides, that 'the government, conformably to the principles established in this law, shall proceed to the colonization of the territories of the republic.'

Upper California, in which the lands in question are situate, was one of those territories. And the first regulation made for colonizing the territories, which was 21st November, 1828, provided 'that the governors of the territories are authorized, in compliance with the laws of the general congress of 18th August, 1824, and under the conditions hereafter specified, to grant the vacant lands in their respective territories to such contractors, (empresarios,) families or single persons, whether Mexicans or foreigners, who may ask for them for the purpose of cultivating or inhabiting them.'

The Indian race having participated largely in the struggle resulting in the overthrow of the Spanish power, and in the erection of an independent government, it was natural that in laying the foundations of the new government, the previous political and social distinctions in favor of the European or Spanish blood should be abolished, and equality of rights and privileges established. Hence the article to this effect in the plan of Iguala, and the decree of the first congress declaring the equality of civil rights, whatever may be their race or country. These solemn declarations of the political power of the government had the effect, necessarily, to invest the Indians with the privileges of citizenship as effectually as had the declaration of independence of the United States, of 1776, to invest all those persons with these privileges residing in the country at the time, and who adhered to the interests of the colonies. 3 Pet. 99, 121.

The improvement of the Indians, under the influence of the missionary establishments in New Spain, which had been specially encouraged and protected by the mother country, had, doubtless, qualified them in a measure for the enjoyment of the benefits of the new institutions. In some parts of the country very considerable advancement had been made in civilizing and christianizing the race. From their degraded condition, however, and ignorance generally, the privileges extended to them in the administration of the government must have been limited; and they still, doubtless, required its fostering care and protection.

But as a race, we think it impossible to deny, that, under the constitution and laws of the country, no distinction was made as to the rights of citizenship, and the privileges belonging to it, between this and the European or Spanish blood. Equality between them, as we have seen, has been repeatedly affirmed in the most solemn acts of the government.

Solano, the grantee in this case, was a civilized Indian, was a principal chief of his race on the frontiers of California, held a captain's commission in the Mexican army, and is spoken of by the witnesses as a brave and meritorious officer.

Our conclusion is, that he was one of the citizens of the Mexican government at the time of the grant to him, and that, as such, he was competent to take, hold, and convey real property, the same as any other citizen of the republic.

2. As to the objection that the tract in question belonged to the mission lands, which the public authorities in California had no power to grant, there appears to be no foundation for this objection.

As early as 17th August, 1833, the Mexican congress decreed that 'the government will proceed to secularize the missions of Upper and Lower California;' and various regulations are prescribed for carrying this policy into effect.

Again, 26th November, the same year, it is declared that 'the government is empowered to adopt all measures which shall secure the colonization and render effective the secularization of the missions in Upper and Lower California, being authorized to use in the most convenient manner the property devoted to pious uses, in the said territories, for that purpose.'

Again, by a decree of 14th April, 1834, it is declared that 'all the missions of the republic will be secularized.'

Under these laws, the authorities empowered to grant the public lands have dealt with these mission establishments the same as with any other portions of the public domain; the clergy, who previously had the charge and control of them, being confined simply to the ecclesiastical and spiritual direction and government of the missions.

We could refer, had we time, to a body of authority on this part of the case, in addition to that above mentioned; but we deem it unnecessary, and shall close by affirming the decree of the district court.

It is conceded that the lands in question do not belong to the class called Pueblo lands, in respect to which we do not intend to express any opinion, either as to the power of the authorities to grant or the Indians to convey.

Mr. Justice CAMPBELL.

I concur in the judgment of the court upon the facts disclosed in the record.

I am unable to find evidence to show that the lands in dispute were attached to the mission of San Francisco Solano, for the single sentence in the deposition of Vallejo, 'that in 1835, according to the rules of secularization, the grantee had acquired the rights of possession,' is too vague, and include too little of a reference to facts to rest any argument that the grant to Solano was of mission lands contrary to the laws of Mexico. I therefore am not willing to pass any judgment upon the subject of the mission lands of California. Nor do I consider that the sufficiency of the conveyance from Solano to Vallejo, a question before us. The conveyance of Solano was recognized before a public officer, and has been followed by possession. For the purposes of this case this is sufficient. This was decided in Percheman's case, 7 Pet. 51-98. The court say there, that the questions upon the validity of mesne conveyances have no interest to the United States, and they cannot be investigated or decided.

This cause came on to be heard on the transcript of the record, from the district court of the United States for the northern district of California, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said district court in this cause be and the same is hereby affirmed.


text: Talk:United States v. Ritchie/Opinion of the Court


text:
Fremont v. United States

Mr. Justice DANIEL did not sit in this cause.

title: Fremont v. United States


text: Talk:Fremont v. United States

title: Talk:Fremont v. United States