cided by the United States supreme court in the year 1836, a case involving the right of the Spanish governors to alienate the quay of the mentioned city, it being a space lying between the front row of houses and the Mississippi river, and held to have been dedicated to the public at that place, it is said that "the fundamental laws of the Spanish nation, and which are understood to be alike binding on the king and the people, are found in the Partidas and the Recopilacion;" and the decisions in Arredondo's Case having been invoked by counsel as sanctioning the principle that a grant issued by a Spanish functionary is not only evidence of title, but also that the officer had the power to issue it, it is also said: "In that case this court did hold, and the same principle has been sanctioned in numerous cases since, that a grant should be considered as prima facie evidence that it was rightfully issued, but that it might be impeached by any one who sets up an adverse claim. * From a careful examination of the jurisdiction exercised over this common by the governments of France and Spain, and the laws which regulated this description of property in both countries, the conclusion seems not to be authorized that it was considered as a part of the public domain or crown lands which the king could sell and convey. This power was not exercised by the king of France, and the exercise of the power by the Spanish governor, in the instances stated, was in violation of the laws of Spain, and equally against its usages. The land, having been dedicated to public use, was withdrawn from commerce, and, so long as it continued to be thus used, could not become the property of any individual. So careful was the king of Spain to guard against the alienation of property which had been dedicated to public use that in a law cited all such conveyances are declared to be void. It would be a dangerous doctrine to consider the issuing of a grant as conclusive evidence of right in the power which issued it. On its face it is conclusive, and cannot be controverted; but, if the thing granted was not in the grantor, no right passes to the grantee." It is also observed in the same case that a faithful observance of the laws mentioned would have preserved the rights of the city, as to the common, free from invasion, and that no law that showed the power of the king of Spain to alienate land which had been dedicated to the public use had been cited in the argument, and that it was clear that the exercise of such a power would have violated the public law which was understood to have limited the exercise of the sovereign power in this respect. In this case the Spanish law was held to control in determining the extent of the right of the public as to the New Orleans quay, parts of which had been granted in fee by Spanish officials; and the opinion shows that such grants were contrary to that law, as con

tained in the Partidas and the Recopilacion, the former of which compilations was promulgated about the year 1343, though perhaps not going into full operation till 1505, and the latter about 1567. Vide Preface to Moreau & Carleton's Partidas. Spain had in September, 1769, established the Spanish laws over the territory of Louisiana, and there was never any suspension of these laws there until the United States acquired the country, not even during the brief period of Napoleon's title. The opinion shows that by the Spanish law the things which belong separately or severally to the commons of cities or towns are places where the fairs or other mentioned things are held, including the alluvions or sand deposits on the banks of rivers and all other uncultivated lands immediately contiguous to cities, and race grounds and forests and pastures, and "all such other places which are established for the common use," (Partida 3, law 9, tit. 20;) and that no one ought to erect a house or other building or works in the squares or commons, nor in roads which belong to the commons of cities or towns or other places, nor take possession of them for his own particular benefit, these things being for the advantage or convenience and common use of all, and that such works must be pulled down and destroyed, unless the corporation or place see fit to retain them for its own use, and use the revenue from the same; it being declared that no man who has erected such works can acquire a right thereto by prescription, (Partida 3, law 23, tit. 32;) and, further, that "our pleasure and will is to preserve their rights, rents, and property to our cities, towns, and places, and not to make any gift of anything of them, wherefore we command that the gift or gifts which we may make, or any part of them, to any person whatsoever, are not valid." New Recop. pp. 6, 7, tit. 16, law 1. It was, however, held that the king of Spain, like the king of France, had the power to give permission to construct buildings on grounds dedicated to public use, without injury to the public rights, the buildings to be so constructed that no one should be injured in his right thereby, (Partida 3, law 3, tit. 32; Rodriquez 15, 16;) this partida reading: "If a man begin to erect a new edifice in the public places or street or common thrashing grounds (exidos) of any place, without the permission of the king or of the council, upon whose ground he builds it, then any one of the inhabitants may forbid him to continue the work, unless the person forbidding be an orphan, a minor, of fourteen years of age, or a woman, for they cannot do it, except where some new work is constructing upon their own property." And it is observed by the court that as the power was given to the king, by law, to grant permission to build on public places, it would seem to follow that such places were not only withdrawn from commerce, but that the king

could not alien them, for if he had the power to do so in an unlimited manner, as over the crown lands, it would include the exercise of every minor authority over them; and, further, that the permission to build on the quay, specified in the opinion, given by the governor and intendant, under the law cited, was not considered inconsistent with the public use, as the power was not to be exercised to the prejudice of third parties, but as to the three lots to which grants were issued, it must be admitted, they were such a final disposition of the property as was wholly incompatible with the public right, both the fee and the use being granted; that there was no difference in principle between ground dedicated as a quay to public use and streets and alleys of a town, and that, as to streets, it would not be pretended by any one that the king could have rightfully granted them, and it was believed that a public right to a common was equally beyond the power of the sovereign, unless he disposed of it under the power to appropriate property to the natural use, and then compensation must be paid. It is also declared that the kings of France and Spain could exercise a jurisdiction in the nature of police regulation over this common and other places similarly situated, but it was rightfully exercised in such manner as not to encroach upon the public use, and there is instanced the fact that in 1770 the Spanish governor, O'Reilly, established a regulation, to continue during the pleasure of his majesty, requiring a payment of six dollars by each boat of 200 tons for right of anchorage, "established and destined to the keeping in repair of the levee or dyke which does contain the river within its limits in the whole front of the city."

That the king of Spain, in the exercise of his great power, might have made a grant of this kind, is not denied, nor need it be. That such a grant by him would have been contrary to his laws then in force here, and have been, pro tanto, a repeal of the same, or a case of special exception from their effect, is clear; and evidence, to be sufficient to show authority in another for such a departure from the fundamental law, recognized by him as operative here, must, in the presence of such fundamental law, establish his action in the premises. Sure'y, an isolated act of a subordinate, that is in conflict with a general rule representing the expressed will of the superior, cannot be held to be evidence of a change of that will. There is in the many authorities in which the power of intendants to make grants of land is discussed nothing inconsistent with this view. In none of them is the exact question presented here involved. It is true that in them there is assertion that the king and his governor and intendants had power to grant the shore or land which was land subject to tidal overflow; yet there is not to be found anywhere anything that justifies the conclusion that it was the purpose of the king to confer upon v.14so.no.14-46

Intendants the power to make a grant like this, not of land subject to the public use of the waters above, but a permanent monopoly of the right to build wharves over the entire front of his only city on the gulf of Mexico east of the Perdido, and covering what, under the most favorable conditions for growth, might be deemed its possible prospective growth for many years. As stated above, a careful review of the royal ordinances and the regulations as to the sale and other disposition of land (of the more modern of which ordinances an instructive statement by Judge Marshall will be found in the case of U. S. v. Clarke, 8 Pet. 436, the ordinances and regulations themselves being in White's Spanish Law and his Land Laws of California) will satisfy any one that they were not intended to authorize a grant like this, or the reduction of public waters, or even the land under them, into several ownership, or to confer upon intendants the power to do so. There can be found in these ordinances and regulations nothing that can reasonably be construed to indicate an intent upon the part of the king, in making such ordinances, to modify the general law applicable to public waters, nor a purpose upon the part of the colonial officials promulgating the regulations to extend them beyond those lands which were intended to be reduced to individual ownership, and constituted the crown lands or royal domain. The purposes of settlement, cultivation, and pasture are prominent in all these ordinances and regulations, and they are altogether inapplicable as a system for improving a port by granting rights to build wharves, or promoting the health and comfort of the inhabitants through bath houses, or even to a system for the reduction of public waters and the lands covered by them into several ownership and exclusive individual property. Such improvement of a port and promotion of the health and comfort of the population would have called for regulations protective of commerce and navigation, in addition to dealing with a domain of an entirely different character from that to which the ordinances and regulations referred to relate. We fail to find a line in any American adjudication that has been formulated with reference to, or can be regarded as an authority in favor of, the exercise of the power asserted here by Ramirez, or a provision of Spanish law, general or special, that supports his exercise of the power. It is a power which, in its nature, is not incident to mere authority to dispose of crown lands, or that part of the royal domain which, under the Spanish law, was well understood to be intended for reduction to several ownership, and which such ordinances show an earnest desire upon the part of the king to settle and dispose of. Conceding that the king had the power to regulate the use of such waters, yet there is nothing which has been brought to our attention that tends to prove that he had

In

confided this power of regulation to the intendant. Had it been the purpose of the king that such important rights as are attempted here to be conferred upon Pintado should be at the disposal of the intendant or other subordinate, it seems reasonable, if not certain, that some ordinance or other law regulating the subject would have been made, and be extant with the many others made specially applicable to the provinces. Their absence is strong evidence that it was the royal purpose to keep so important a function as that of granting away to individuals the right to build wharves and bath houses, and interfering with well-understood public rights, guarantied by the general law, within his own immediate control. the absence of some ordinance changing the general law, that law, as it is set forth above, defined the rights of the public in the shore and such waters, and was binding on the intendant, as it was on the citizen. In those cases in which the power of officials to make larger grants of land have been sustained, (as they have been even where the title recited inaptly. royal orders which authorized only more limited grants,) the courts have been able to resort to the general power given them to dispose of the crown lands, and the frequent or usual exercise of the same; but here there is no grant of general authority, nor any instance of an exercise of it, nor any special authorization of the kind. That this grant, taking from the king, as it did, the right to avail himself of the capital or enterprise of any citizen at any time to improve the port in this manner, if his majesty should deem it wise to change the law to that end, would have been binding on the king, we find nothing to support, nor anything to encourage a belief that it could have received his royal sanction as an act of grace. On the contrary, everything having any application to the subject that has fallen under our view tends to the conclusion that it was not only without authority of law, but contrary to the public welfare, the rights of the king, and to the consideration which his laws and ordinances evince for his subjects.

In addition to this absence of any law or rule authorizing such a grant by the intendant or other local officer, the solitary character of this grant is strong evidence of its illegality. The labors of counsel and the investigations of the court have failed to find in the pretensions of numerous claimants, developed by the acquisition of Louisiana, Florida, and California, any claim like this. Though we see that the old mercantile house of John Forbes & Co. kept a wharf at Pensacola, which was excepted from the calls of this grant. yet there is no evidence that there was ever any such grant of a wharf right by the Spanish authorities. If it be said that the absence of similar grants finds explanation in the absence of a necessity for wharfs, then the absence of such ne

cessity also explains the want of any special law or rule changing the general law as to the public right in, and use of, the shore and the waters. The natural conclusion resulting from such absence is that the conditions existing here dictated that the use of the shores and waters secured to the public by the general law should be maintained. No such grant or exercise of authority is to be found elsewhere in the history of the colonies referred to, and that it was made without authority we do not feel any doubt. We do not think that law 3 of title 32 of the third Partida, quoted above, authorized this grant. It was not the purpose of that law to permit subordinates to take from the king for all time the right to permit persons to build houses in public places, or to grant to one individual a perpetual monopoly like this; nor are we satisfied that it applies to public waters or shores, as to which the general law gave the rights indicated in the previous pages of this opinion, including that of building huts on the shore.

There is moreover in the history of this grant nothing that favors its validity. We find that it was rejected by the commissioners appointed under the act of congress to investigate land claims in West Florida, (3 Am. St. Papers, 118-120;) their conclusion being that the grant was invalid, both on account of the rights of commerce appertaining to the city and the property rights incident to riparian ownership, whether of urban or rural lands, and the rights of the public in the use of the waters. A further conclusion of the commissioners also was that there had never been any actual survey of any of the premises granted or represented by either of the accompanying plans. The rejection by the commissioners of this water grant was sustained by the congress of the United States, which excepted it, and the grant of the western end of Santa Rosa Island, from its confirmation in the act of May 23. 1828, (4 Stat. 284,) of the grants represented by the other plans. It may be here observed that of plan A the report of the commissioners says: It "embraces the point on which Fort Arruinado stood, on the western side of the island, opposite to Fort Carlos De Barrancas, and upon which, it is believed. the Spanish government always had batteries erected for the defense of the entrance into the bay of Pensacola. This position seems to have been an indispensable auxil iary to that of Barrancas, and could not be appropriated to any other purposes but those of defense. It is an 'arid and barren space,' as described in the certificate, and entirely unfit for cultivation. Under such circum stances, it is difficult to believe that the Spanish authorities would make such a grant as long as they expected to retain possession of the country."

The confirmation by congress was neces sarily a recognition by the United States of the authenticity or genuineness of the paper

title held by Pintado; and an explanation of such recognition, in the absence of any from the opinion of the commissioners, is doubtless to be found in the fact of the production of the original, which evidently had not been seen by the commissioners when they prepared their opinion, though it is not improbable, in view of what appears in their statement of the evidence adduced before them, that it was subsequently presented to them, and that there was an unintentional omission to correct the stated feature of their opinion. It is certain, however, that both commissioners and congress concurred in the view that this water grant was invalid; and, although no judicial effect can be given to the finding of either body as concluding the claimant, it must be taken as the expression of their best judgment, carefully formed when these matters were fresh, under a sense of great responsibility, and we have yet to find anything that, to our judgment, seems to render their rejection of the grant questionable.

In the absence of the reasons upon which the district judge of the United States court for the northern district of Florida based his judgment in favor of the defendant in the ejectment suit between the city of Pensacola against Endaldo Pintado, we cannot assent that it was upon grounds inconsistent with the views we have advanced in this opinion.

It is unnecessary to review specially the rulings of the circuit judge as to the effect and validity of this grant, or to pass upon any question not already disposed of. Those rulings are irreconcilable to the conclusions we have reached; and the judgment must be reversed, a new trial granted, and the cause remanded for proceedings consistent herewith. There will be judgment accordingly.

MABRY, J., (concurring.) That Ramirez, the intendant, had no authority to make the grant, as construed by the opinion filed, of the land and water involved in this suit, and that to this extent his act was contrary to all Spanish law and the rules for the government of the king's subjects, known to us and in force in the Floridas at the time, I am satisfied are correct conclusions

I do not feel satisfied that the grant did not undertake to vest in Pintado a greater estate than that shown by the construction adopted, but I am satisfied that the grant did invest him with the estate to the extent the construction gives, and that Ramirez had no authority to make it.

that there were no degrees of manslaughter. This was error, as the provision of the Revised Statutes (section 2384) defining and prescribing the punishment for manslaughter has no application to offenses committed before the day such statutes took effect, viz. June 13, 1892.

2. The transcript of the bill of exceptions found to be so interlined and in such a condition that the court is unwilling to recognize it for the purpose of considering rulings of the trial judge as to testimony.

3. Affidavits used at nisi prius on a motion for a new trial cannot be considered by the appellate court unless they are incorporated into a bill of exceptions.

4. The fact that one of twelve grand jurors who concurred in finding an indictment under the act of June 8, 1891, was not a competent grand juror, is waived by not pleading such fact in abatement. It cannot be taken advantage of by motion in arrest of judgment, supported by affidavit.

(Syllabus by the Court.)

Error to circuit court, Baker county; R. M. Call, Judge.

George Reynolds and others were convicted of manslaughter, and bring error. Reversed.

F. W. Pope and W. P. Ward, for plaintiff's in error. William B. Lamar, Atty. Gen., for the State.

RANEY, C. J. George Reynolds, James Reynolds, Jesse Greek, and Willis Hodges were indicted at the spring term, 1893, of Baker county circuit court, for the murder of James Sweat on the 24th day of December, 1891; George Reynolds being charged as principal in the first degree, and the others as principals in the second degree. The state having severed as to Hodges, the other defendants were put on trial before a jury, and the verdict returned was that they were "guilty of manslaughter;" and, motions in arrest of judgment and for a new trial haying been refused, the circuit court sentenced the prisoners to imprisonment in the state prison at hard labor as follows: George Keynolds for four years, and James Reynolds and Jesse Greek each for two years.

Among other charges given and excepted to, and now urged as ground for a reversal, was the following: "There are no degrees of manslaughter." In view of the time at which the killing is shown by the evidence to have been done,--December 24, 1891,-this charge was erroneous, and should not have been given. It is true that since the time that the Revised Statutes became operative, which was June 13, 1892, there have been no degrees of manslaughter in Florida, but from August 6, 1868, up to the day just mentioned, there were four degrees of manslaughter, punishable as follows: The first degree by imprisonment in the state penitentiary for a term of not less than seven years; the sec ond degree for not more than seven, nor less than four, years; the third degree for not more than four, nor less than two, years; the fourth degree by imprisonment in the state penitentiary for two years, or by imprisonment in a county jail not exceeding

one year, or by a fine not exceeding $1,000, or by both such fine and imprisonment. The punishment prescribed by the Revised Statutes for manslaughter, as this offense is now generally defined, as well as for the acts specially declared to be manslaughter, is imprisonment in the state prison not exceeding twenty years, or imprisonment in the county jail not exceeding one year, or by fine not exceeding $5,000. Section 2384.

"Manslaughter," as defined by the section of the revision just mentioned, is the killing of a human being by the act, procurement, or culpable negligence of another, in cases where such killing shall not be justifiable or excusable homicide nor murder. There are also some special cases of homicide which are declared to be manslaughter. Rev. St. §§ 2385-2392. Changes have been made as to murder, as will appear from Marshall v. State, 32 Fla. 462, 14 South. 92, and the statutes there referred to. The definitions of the several degrees of manslaughter as they existed prior to the revision are to be found in McClellan's Digest, (pages 351-353;) and on the first of these pages, prior to making such subdivision, the killing of one human being by the act, procurement, or omission of another is, in effect, declared to be manslaughter when it is neither justifiable nor excusable homicide nor murder, which three grades of homicide are also defined in the same chapter, (pages 350, 351, 353, 354.)

It is provided by section 2353, Rev. St., that no offense committed, and no penalty and forfeiture incurred, prior to the taking effect of these Revised Statutes, shall be affected thereby, and no prosecution had or commenced shall be abated thereby, except that, when any punishment, forfeiture, or penalty shall have been mitigated by the provisions of these Revised Statutes, such provisions shall apply to and control any judgment or sentence to be pronounced, and all prosecu tions shall be conducted according to the provisions of law in force at the time of such further prosecution and trial applicable to the case. In our judgment, the criminal law defining the different grades of unlawful homicide, including that as to manslaughter, that was in force here on the 24th day of December, 1891, is the law by which the guilt of the accused was to be ascertained, and. in view at least of the different grades of manslaughter and their definitions, the same is true as to the punishment to be inflicted. In Mathis v. State, 31 Fla. 291, 12 South. 681, we held that the right to peremptorily challenge jurors appertains to the remedy or procedure under which prosecutions are conducted, and was not of the essence of the offense itself; and that the legislature could at any time change the law as to any such matter, and make it, as changed, apply to the prosecution of previous offenses, as well as to those of subsequent occurrence; and that in doing so there was no violation of the provision of section 32 of article 3 of the consti

The

tution that "the repeal or amendment of any criminal statute shall not affect the prosecution or punishment of any crime committed before such repeal or amendment." same principle was properly enforced, also, in the cases of Hall v. State, 31 Fla. 176, 12 South. 449; Lovett v. State, 31 Fla. 164, 12 South. 452; Murphy v. State, 31 Fla. 166, 12 South. 453,-where section 2383, Rev. St., which requires that the verdict under an indictment for murder shall specify the degree of unlawful homicide of which the accused may be found guilty was not complied with. In Brown v. State, 31 Fla. 207, 12 South. 640, the decision was that offenses committed prior to the time that the Revised Statutes became operative remain offenses under the statutes which punished them at the time of their commission, and that such was the express purpose of section 2353, Rev. St. In Blue v. State, 32 Fla. 53, 13 South. 637, an act of 1885 punished the offense of carrying arms secretly by imprisonment not exceeding six months, or by fine not exceeding $100. The circuit court of any county, where there was no criminal court of record or county court, had exclusive jurisdiction of all violations of the act. An act of 1893 amended the act of 1885 by making the punishment imprisonment not exceeding three months, or fine not exceeding $100, or both such fine and imprisonment; and it was held that the effect of this amendment was to give justices of the peace, in any county where there was no such criminal or county court, trial jurisdietion of all violations of the statute occurring subsequently to the amendatory act, but that the exclusive jurisdiction of all offenses committed prior to the amendment remained in the circuit court, by virtue of the provision of the constitution given above. In the opinion it is said that the old statute stands, under section 32 of article 3 of the constitution, as to offendings under it; and of course the circuit court retains its jurisdiction, there being no express or implied abrogation of its jurisdiction, nor any grant of jurisdiction to justices of the peace, or to any other tribunal, of such former cases.

The plaintiffs in error are triable under the law that defined the criminal character of any homicide which they may have committed on the night before Christmas, 1891; and there being no legislation mitigating the punishment prescribed by that law, it, as in Brown v. State, supra, is unnecessary to decide whether the constitutional provision mentioned precludes any such mitigation.

2. As to all grounds of motion for a new trial based upon rulings as to testimony, we are constrained to say that the bill of exceptions is so interlined, and in such condition, that we are unwilling to recognize it as proper evidence of what testimony was adduced on the trial. We cannot establish such a precedent. Without noticing other errors to the consideration of which a bill of excep tions is necessary, we will observe that affi