of Spain authorized. The conclusions announced here as to the power of the king and his representatives were wholly unnecessary to a decision of the Eslava Case, and, in so far as they relate to the power of the sovereign, are based upon Robinson's Am. and Prescott's Ferdinand & Isabella. This conclusion adopts the theory that the colonies were vested in the crown, rather than in the state, and that the monarch possessed an unlimited control over the same; that he, and not the state, was the proprietor of the territories acquired, and from him all grants of land flowed, and, being vested with the property, it was competent for him to make such disposition of those possessions as caprice or a sense of justice might dictate; that the canons of the civil law or the legislative regulations of Spain were not recognized by the monarch as operating to restrain him in making grants of land in the new world, and it must therefore be immaterial whether, according to the civil law, rivers, the sea, and its shores are destined by nature to the common use of man, and thus withdrawn from commerce; it being also observed that it was true that, "when towns were built and formed into bodies corporate, the citizens were allowed to elect their own magistrates, who were authorized to adopt measures for the regulation of their own interior commerce and police. But no political power originated from the people; all centered in the crown and the officers of its nomination. The viceroys who represented the sovereign possessed his regal prerogatives, within the precincts of their own governments, in their utmost extent. Like him, they exercised supreme authority in every department of the government, civil, military, and criminal; and, as their dominions were too extensive for their personal supervision, they, in turn, were represented by various orders of magistrates, some appointed by the king and others by the viceroys, all of whom were amenable to the jurisdiction of the latter, unless they were required to exercise their duties without the limits of either of the viceroyalties." The cases of Bullock v. Wilson, Webber v. Commissioners, and Pollard's Lessee v. Hagan cannot be considered authority as to the Spanish law on this point, neither of them deciding anything as to it; yet it is a fact that in the second case there is an observation to the effect that although the title to the soil under the tide waters of the bay of San Francisco was acquired by the United States by cession from Mexico, equally with the title to the upland, they held it only in trust for the future state, and, upon the admission of California into the Union, it passed to the state, upon the limitations therein expressed; and in the last of the three cases it appears that it was insisted by counsel that the United States had, under the treaty referred to in the preceding pages of this opinion, succeeded to all the rights and powers of the king of Spain, and that as, by the laws and usages

of Spain, the king had the right to grant to a subject the soil under navigable waters, therefore the United States had the right to grant the land in controversy, which was in Alabama, and thereby the plaintiffs had acquired it. This contention was answered, not only by a statement of the fact that the United States had never claimed any part of Alabama under any treaty with Spain, but also by the statement that, if it were true that the United States had acquired the whole of Alabama from Spain, no such consequence as was contended for would result, in that it could not be admitted that the king of Spain could impart to the United States any of his royal prerogatives, and much less could it be claimed that they have capacity to receive or power to exercise them. Every nation acquiring territory, says the opinion, citing Vattel, bk. 1, c. 19, §§ 210, 244, 245, and Id. bk. 2, c. 7, § 80, by treaty or otherwise, must hold it subject to the constitution and laws of its own government, and not according to those of the government ceding it.

It

The reference of counsel to page 550 of 2 Cal. Land Laws, supra, is a report, dated "Havana, May 15, 1830," to the supreme junta, by commissioners appointed evidently some time before. Their duties included that of investigating and ascertaining the right of property on the margins of rivers which the royal factory considered as crown lands, appropriated to the culture of tobacco. seems from this report that on March 11, 1798, there had been issued a royal cedula which declared that all the lands situated on the margins of rivers, to the extent which said rivers cover when they overflow, were to be considered the property of the crown, and not of the landowners. The conclusion of the report on this point is that the principle announced by the cedula was decided without the landowners having a hearing, and by an incompetent authority,-a minister, and not by the tribunals and councils of the king, and also against the clearest principles of Spanish jurisprudence; the law which is cited declaring positively that the margins of the rivers, as to dominion, belong to those whose possessions are adjacent thereto, and all the trees which are on the banks of the rivers belong to those who own the possessions, and they can cut the same, and do with them what they please, and it being observed that the laws, in speaking of rivers, do not mean the interior, but the public and navigable, streams. And, in the connection that the cedula was against the clearest principles of Spanish jurisprudence, the report reads: "And we may say this without being accused of wanting the respect which is due to a royal order, because there are cases like the present in which there is a presumption that such orders are not the will of the sovereign; for they have been considered possible, and have been foreseen by the Spanish sovereigns, as they have declared by an express law that royal orders

that may be given against any general or municipal law shall be obeyed, but not executed." The report further finds that the cedula was against the simplest notions of reason and justice, the inundations sometimes extending over four or even six leagues from the river, and that it was repealed by a subsequent royal order of January 25, 1801, and that it was also made under the false implession that the grants of lands which it affected had been made under certain conditions rendering it proper, and that, therefore, it was null and void. It is stated in this report as to the use of rivers and their banks being common to all: "Besides that, the laws speak of public and navigable rivers which cross two different nations, and separate their territories, as we have said before. We ask now, what is the use meant by the law? None other but the common right to navigate and to fish in them, as it regards the rivers; and, with regard to the banks, the laws mean the right to build a house, a cottage for shelter, or any other kind of building, provided the use, common to all, is not interrupted. It also means the right of making nets, and drying them thereon; the right of repairing the vessels, and tying them to the trees; also the right to put there the merchandise and fish, and to sell the same, with other things of their nature."

The cases of Mobile v. Eslava, 16 Pet. 234; and dissenting opinion, 252, 259; Lessee of Pollard's Heirs v. Kibbe, 14 Pet. 353; as also Pollard's Lessee v. Hagan, supra,-are also referred to as impliedly sustaining the power, in that grants of land below highwater mark were passed upon without question as to their validity, even by the learned counsel engaged in them, who, being contem poraneous, were better acquainted with the Spanish law than we are. There is nothing in the opinion of the court in the first of these cases, decided in 1842, that bears on the question at all, but in the separate opinion of Judge Catron it is said: "That the United States acquired the title to lands flowed by tides by the treaty with Spain is of course admitted. That they had power to grant up to the adoption of the constitution of Alabama is also admitted in the opinion under review. That the Spanish king could grant lands under tide water is free from doubt, and the United States acquired by cession all his powers over the vacant soil." This opinion also holds that the United States had power to grant land in Alabama, between high and low water mark of navigable waters, after the admission of the state into the Union,-a position which is entirely overthrown by the subsequent decision of Pollard's Lessee v. Hagan, supra; the supreme court of Alabama having first, in Mayor v. Eslava, supra, (the same case as that now under discussion, it having been appealed to the United States supreme court,) asserted the doctrine affirmed in Pollard's Lessee v. Hagan. The case of Lessee of Pollard's Heirs

v. Kibbe is one of a grant in 1809 to Pollard. by the Spanish authorities, of a lot which was then subject to overflow by ordinary tides. The date of the grant, it will be perceived, intervened the purchase of Louisiana from France by the United States, in 1803, and the purchase of the Floridas from Spain. The territory about Mobile, including the lot granted, lay in the disputed limits between the Iberville and the Perdido, and remained in the actual possession of Spain when the grant was made. The lot was filled in 1823, and the decision of the court was that certain acts of congress of May 26, 1824, and July 2, 1836, confirmed the grant to Pollard; its view being that even if the grant was originally void on account of the want of legal power in the Spanish authorities to make it, in view of our title to the territory under the purchase from France, still it had been confirmed by act of congress. It is true that no question seems to have been raised as to want of authority to grant land subject to tidal overflow, but, even if it had been, the act of congress would have been held to be equally curative of any such defect in the grant. It is unnecessary to discuss the effect of Pollard's Lessee v. Hagan, supra. Of course, where any lots falling within the terms of either of these acts were at the date of the same subject to tidal overflows, congress was without power to grant the same, they being the property of the state of Alabama, whose admission into the Union was in the year 1819.

Referring to law 15, tit. 5, of the Partidas, which says: "A free man, a thing religious, sacred, or holy, a public place, as squares, roads, thrashing grounds, rivers and other waters which belong to the king, or the commons of any city, cannot be sold or alienated," it is contended by counsel for appellee that this did not bind the king or his depu ties; that he was not named in it; and that laws bind sovereigns only when named, and in Spain it bound him only so long as he chose to be bound, there being no such thing as law in a constitutional sense restricting sov ereign power to a given course of action, Spanish law being the expression of the will of the king as to the manner in which subjects should conduct themselves, but having no application to himself.

In support of this proposition, 2 Cal. Land Laws, pp. 502, 503, and U. S. v. Arredondo, 6 Pet. 714, are cited. The document referred to in the former of these citations is what is termed "An Exposition of the Florida Treaty," by the Honorable Joseph M. White, the learned compiler of such land laws, who in his day here was among the most distinguished of Florida's citizens. This "Exposition" seems to be an argument, made subsequently to 1830 at least, in some cause involving the title to land which had been granted by the Spanish authorities. It is true that in answer to the assertion that the royal govern

ors of the Spanish colonies had no power to make sales or donations of the public lands, except in very limited quantities, and under numerous restrictions, it is said that every fair presumption is against these supposed limitations, and that legal or constitutional restrictions upon the power of the king or his officers, according to our ideas of them, are inconsistent with the character of the Spanish monarchy, and hardly comprehensible by a native of that country, and have been rejected, together with the constitutional monarchy, by the people of Spain; and it is asked how it is possible to reconcile limitations of power with the fundamental maxim, "The will of a prince has the force of a law." And it is also said that portions of the royal authority as arbitrary as that of the king himself were intrusted to the several governors of provinces, each of whom, within the limits of his own government, was the image of his sovereign, and, in practice at least, and in popular opinion also, absolute; and that the only restraint upon his acts were his instructions and accountability to the king; but that the royal instructions, and the residentia or account of his transactions, which the governor was obliged to give, were not properly legal limitations upon his power, but rather directions for the exercise of his discretion, and securities for his good behavior; and, again, that even the laws of the Indies, obscured, perplexed, and sometimes even unintelligible as they are, hardly reached across the ocean, and that the doctrine of the Spanish, like that of the Roman empire, was marked by the absolutism of the distant prefects. These assertions are very broad, but they are not authority; they are the free language of the advocate, and have no relation to the subject of a grant like that now under consideration. Moreover, the very paper in which they occur contains evidence that the Spanish government of the time of this grant was one of laws, and not of mere arbitrary discretion upon the part of the king or governor. shows that in the opinion of Don Luis De Onis, who negotiated, on the part of Spain, the Florida treaty, which was signed February 22, 1819, the right of the king to annul the grants to the Duke of Allegon, to De Vargas, and Punonrostro was upon the ground that they were made upon essential conditions, which had not been complied with by the grantees, and were consequently not binding on the king, according to the Spanish law; and, further, that the understanding and intent of the parties to the treaty were that all grants should have no other or further effect here than they would have had if there had been no cession of the territory, saving, however, to the grantees, (other than the three named,) who had been prevented from perfecting the conditions of the same by the recited circumstances of Spain, the periods specified in the grants reckoned from the ratification (U. S. v. Arredondo, 6 Pet. 315)

It

of the treaty. The other citation (Arredondo's Case) is, as already stated, a decision of the supreme court on a grant of land in East Florida. It is said in the opinion that "the laws of an absolute monarchy are not its legislative acts. They are the will and pleasure of the monarch, expressed in various ways. If expressed in any, it is a law. There is no other law-making, law-repealing power, call it by whatever name,-a royal order, an ordinance, a cedula, a decree of council, or an act of an authorized officer. If made or promulgated by the king, by his consent or authority, it becomes, as to the person or subject-matter as to which it relates, a law of the kingdom. It is emphatically so in Spain and all its dominions. Such, too, is the law of a Spanish province conquered by England. The instructions of the king to his governors are the supreme law of the conquered colony. Magna Charta, still less the common law, does not extend its principles to it. King v. Picton, 30 State Tr. 866. A royal order emanating from the king is a supreme law, superseding and repealing all other preceding ones inconsistent with it. The laws of the Indies have not their force, as such, by any legislative authority vested in the council; their authority is by the express or implied expression of the royal will and pleasure. They must necessarily yield to an order prescribing a new rule, conferring new powers, abrogating or modifying previous ones." Observing that the principle that the acts of a king are in subordination to the laws of the country applies only where there is any law of higher obligation than his will, it is, however, expressly affirmed in this decision that there is another source of law in all governments, viz. usage or custom, which is always presumed to have been adopted with the consent of those who may be affected by it, and that a general custom is a general law, and forms the law of a contract on the subject-matter, and, though at variance with its terms, it enters into and controls its stipulations as an act of parliament . or state legislature, and the court is bound to notice and respect general customs and usage as the law of the land, equally with the written law, and, when clearly proved, they will control the general law; and it is held that, under the act of congress as covering the grants there in question, such would be the duty of the court, even if that act did not name usage and customs as a part of the law or ordinances of Spain. "We might," says the opinion, "as well exclude a royal order, because it was not called a 'law.'" This decision, in discussing the validity of the Arredondo grant, and after having referred to the fact that no objection was made to the admission of the title paper in evidence, and that its genuineness seemed not to have been contested, and that no attempt had been made to impeach it as antedated or forged, and having observed that it was therefore at least prima facie evidence of a grant of the

In

land it describes to the complainant, the rules of evidence and principles of law giving it this effect, observes that here the im portant question arises whether the several acts of congress relating to Spanish grants do not give all such grants that are perfect in their forms, legally and fully executed, a greater and more conclusive effect as evidence of a grant by proper authority. considering this question, it is noted by the court that in all the laws of the United States on the subject of Spanish grants, in the three territories acquired since 1802, no requirement has been made that the authority on which any grant has been made under the Spanish government should be filed or proved by the claimant; but, on the contrary, congress has been content that the rights of the United States should be surrendered and confirmed by patent to the claimant under a grant purporting to have emanated under all the official forms and sanctions of the local government, this being "deemed evidence of their having been issued by lawful, proper, and legitimate authority, when unimpeached by proof to the contrary." In speaking in this connection of the legislation as to Spanish grants in the territory west of the Chattahoochee river, acquired by the United States from Georgia, it is said: "The fact which gave to the recorded certificate of the commissioners the effect of a patent was the existence of a grant. The legality and fullness of its execution only was required to be made to appear. No inquiry was directed to be made as to the authority by which it was required to be done. The United States were too just to exact from the grantees of land under an absolute colonial government what no court requires from one who holds lands under the grant of the United States or of a state, fully executed, or, if inchoate, never compels a claimant to produce the authority of an officer who issues or executes a warrant or order of survey. It is always presumed to be done regularly till the contrary appears, or such reasons are offered for doubting its authenticity as are sufficient in law to rebut the legal presumption." Reference is also made to the fact of the express grant in at least some of the legislation of authority to inquire whether or not grants may have been antedated, as also evidencing the purpose of congress that the claimants need not show the authority of the officers executing the grants; and in conclu. sion it is said: "It is thus clearly evidenced by the acts, the words, and intentions of the legislature that in considering these claims, by the special tribunals, the authority of the officer making the grant or evidence of claim to lands formed no item in the title it conferred; that the United States never made that a point in issue between them and the claimants to be even considered, much less adjudicated. They have submitted to the principle which prevails as to all public grants of land, or acts of public officers in

issuing warrants, orders of survey, permission to cultivate or improve, as evidence of occupation and nascent title, which is that the public acts of public officers, purporting to be exercised in an official capacity and by public authority, shall not be presumed to be a usurped, but a legitimate authority previously given or subsequently ratified. which is equivalent." It is further said that it is true that a grant made without authority is void under all governments, but in all the question is on whom the law throws the burden of proof of its existence or nonexistence. A grant is void unless the grantor has the power to make it, but it is not void because the grantee does not prove or produce the power. The law supplies the proof by legal presumption arising from the full, legal. and complete execution of the official grant under all the solemnities known or proved to exist or to be required by the law of the country where it is made and the land is situated.

We fail to find in these citations evidence that the Partidas (title 5, law 15) referred to should not be held binding on the colonial authorities. Granting that the partida was subject to repeal or modification by royal order or other authentic action of the king, there is nothing to justify the conclusion that it was not applicable to his representatives in the colonies, or that any such question as that now before us was in the mind of either Mr. White or the supreme court. It should not be forgotten that both were dealing with something that was the ordinary subject of grant by such authorities, and as to which nothing negativing the pow er of the king's authorities is to be found in the Partidas or elsewhere in the Spanish laws; and it is true, not only that the opinion of the court expressly recognizes the laws of the Indies, including Spanish usages and customs, as having been operative here, but also that Mr. White, in addition to a similar recognition in his Spanish Law and his Land Laws of California, had expressly decided against the validity of this identical grant in the report on the same by the land commissioners for West Florida, (4 Am. St. Papers, 118-120,) which report will be noticed more fully hereafter.

If it be that the colonial government was not one of law, prescribed by the king, but rather one of the mere occasional will of the sovereign, and of which will the only necessary evidence was to be found in any formal act of his official representatives here, then, of course, the law is to be found in the act, and proof of the latter establishes the former. We do not find that such was the nature of the colonial government, or the character of the king's disposition towards or interest in his western subjects. We think that other authorities at hand also show this.

In 1828 the attorney general of the United States became convinced of its being indis

pensable to a just decision by the supreme court of the land claim cases under the act of May 23, 1828, that a complete collection of all the "Spanish and French ordinances," etc., affecting the land titles in Florida and the other territories which had belonged to France and Spain, should be made, and Mr. White was selected to prepare the compilation. In his communication of February 4, 1829, to the secretary of state, submitting his work, (that referred to above as White's Spanish Law,) he speaks of it as a collection of laws, ordinances, and local regulations adopted from time to time by the government of Spain, touching the disposition of her public lands in her colonies, and makes, among others, the observation that for the period from the appointment of the first viceroy of New Spain to the year 1701 he had found no specification of that officer's powers, or authentic detail of his subordinate authorities, nor any code of laws or systems of regulations relative to concessions of the royal domain, and says that in Cuba there are a captain general, intendant, and superintendent general, and 18 governors of districts, all authorized in some form and to some extent to make grants or allotments of land, their powers in many cases depending on instructions, official letters, and decrees of the king, captain general, or intendant general, addressed to these respective subordinate departments. In this work of Mr. White we find that as early as September, 1571, the king, expressing himself as desirous to devise suitable means by which his western dominions-the Indies-should be governed in a proper manner, provided, by royal order, that the council of the Indies, whose function it was to assist the king in the government of these, provinces, should to that end reside in the court and near the person of the king; and that, in 1682, he, by another order, declared that a stated and recent compilation of the laws applicable to such provinces or dominions should be obeyed, fulfilled, and executed as such, and that they should regulate and determinate all suits and differences which might arise, such order also referring to former compilations of a similar character. Pages 13-17. There were also subsequent compilations extending up to the end of the year 1816. Pages 82, 126, 127, 131. In the compilation of 1682 it is ordained: "And as regards what is not determined by the laws contained in this compilation, with respect to the decisions of causes, the laws in the compilation and partidas of the kingdom of Castile shall be observed in the manner set forth in the following law." Such "following law" providing that "the laws of the kingdom of Castile shall be observed conformably to the laws of Toro, with respect as well to the substance, determination, and decision of cases, transactions, and suits as to the form of proceedings."

In this work of Mr. White we not only

find the law as to things common and things public, as set out above, but there is in it, or in his more enlarged compilation, made 10 years subsequently, of the laws, charters, and local ordinances of the governments of Great Britain, France, and Spain, relating to the concession of land in their respective colonies, (which compilation is referred to above as the Land Laws of California,) nothing sustaining the idea that the laws therein contained were not to be binding on the king's representatives here, or that waters, like that which is the subject of this grant, or the land beneath it, were intended to be the subject of grant like the vacant or crown lands. On the contrary, we find it expressly declared: "We have ordained that pastures, mountains, and waters shall be common in the Indies, [Spanish Law, 44;] and, further, that no one can establish or publish the law but the king, and that the prince ought to obey the law, although he cannot be compelled to do so, [Id. 59, 60.]" The first of these declarations seems to have been necessitated, not by any deficiency in the law as it stood at the time, but by the fact that persons without any title had occupied extensive tracts of land, and would not permit any one to establish pens and herdsmen's huts thereon, and to drive their cattle thither; and it is accompanied by a present "command that all pastures, mountains, and waters in the provinces of the Indies be common to all the inhabitants thereof, present and to come, and that they may freely enjoy and use them, and construct their huts near their pens, drive thereon their cattle, either in herds or separately, at their option, all ordinances to the contrary notwithstanding, which, if necessary for this object, are hereby so far repealed and declared to be of no force or value." It is true that there is in this compilation mention of waters in connection with private titles, but nowhere is the conclusion justified that it refers to what may be deemed public waters, like the subject of this grant. A careful consideration of the many laws, ordinances, and regulations as to the disposition of lands satisfies us that, wherever there is mention of waters in them, the meaning is those waters which pass as part of the land, and not those which the general law made public or common. There is nothing in the entire system of laws that countenances the idea that the reduction of waters of the character covered by this grant to permanent ownership in severalty was intended or even contemplated. There is much evidence of the unlawful interference by officials with the commons of the towns, and of the royal disapprobation of such invasions of the rights of those communities; and it cannot be doubted that the equal evidence would be extant of disapproval of trespassing upon the public waters had official usurpation been equally bold as to them.

In New Orleans v. U. S., 10 Pet. 662, de