Henderson v. Poindexter's Lessee. 12 W. title in the grantee and those claiming under him, although the grantee was not, on the 27th of October, 1795, an actual resident of the territory ceded by Georgia to the United States. 4. If the jury should believe that Joseph Pannell, under whom the defendant claimed, on or before the 27th of October, 1795, was a resident of the said territory, and that he claimed the premises in controversy by virtue of a Spanish patent legally and fully executed prior to that day, the defendant is entitled to a verdict. 5. That the paper purporting to be a copy of the articles of agreement between Joseph Pannell and Francis Poussett, dated September 20, 1796, was competent testimony to prove any fact in controversy between the parties in this suit. 6. If the jury should be of opinion that the date attached to the paper purporting to be the instructions from William Dunbar to William Atcheson, is an interpolation or forgery, in such case they shall disregard it altogether. 7. In this action of ejectment, after a long and continued possession of thirty years, on the part of the defendant and those under whom he claims, under title or color of title, the jury are [*533] authorized to presume that it had a legal * origin, and was legally continued in the defendant and those under whom he claims, in the absence of satisfactory proof to the contrary. 8. If the jury should believe that the survey made by William Atcheson, in September, 1795, was made at the time it purports to bear date, that then, and in such case, it will constitute an instrument of a higher and superior nature to the instrument purporting to be private instructions from said Dunbar to said Atcheson, for the purpose of proving the residence of the said Pannell at that time. 9. That if, on the whole matter, the jury should have a reasonable doubt, then their verdict should be for the defendant. The court granted the 4th, 6th, 7th, and 9th prayers, but refused the 1st, 2d, 3d, 5th, and 8th, to which refusal the counsel for the defendant excepted. In argument, two general questions have been made. 1. Is the title set up by the plaintiff in error under the Spanish government, sufficient in itself to protect his possession? 2. Has it been recognized and confirmed by the United States? 1. The first point has been argued very elaborately, and with deep research. The court will not enter into the reasoning of the parties, but will state the result of an attentive consideration of that reasoning. It is undoubtedly true, that the exact boundary line between the southern British colonies and Florida, was never adjusted while that province remained in possession of Spain. Each crown claimed Henderson v. Poindexter's Lessee. 12 W. territory which had been granted by the other, and was settled by its subjects. Florida was at length ceded to Great Britain; after which, the 31st degree of north latitude was, by the proclamation of 1763, established as the dividing line between that province and Georgia. The crown, however, was in the habit of changing the limits of the colonies; and, though we complained of the manner in which this branch of the prerogative was exercised, we did not resist it. In consequence of a recommendation of the board of trade, the limits of Florida were supposed to be extended, as appears by the commissions to its governor, so as to comprehend the land [ *534 ] in controversy. This was the state of things when the war of our Revolution commenced. In its progress Spain took part in it, and reconquered Florida. At the treaty by which that war was terminated, Great Britain acknowledged the United States to be free, sovereign, and independent, and treated with them as such. Their boundaries were particularly described, so as to comprehend the land in controversy. The preliminary articles of peace between the United States and Great Britain were signed at Paris on the 30th of November, 1782. But these articles were provisional, and were not to take effect until terms of peace should be agreed upon between Great Britain and France. On the 20th of January, 1783, preliminary articles of peace were signed between Great Britain and France, and between Great Britain and Spain. In the treaty with Spain, the Floridas were ceded to that power without any description of boundary. The United States continued to assert a claim to the 31st degree of north latitude, while Spain maintained perseveringly her pretensions to extend further north. This was the subject of long and fruitless discussion between the two governments, which was terminated by the treaty signed at San Lorenzo el Real, on the 27th day of October, 1795.2 By this treaty, "the high contracting parties declare and agree, that the southern boundary of the United States, which divides their territory from the Spanish colonies of East and West Florida, shall be designated by a line beginning on the River Mississippi, at the northernmost part of the 31st degree of latitude north of the equator, which from thence shall be drawn due east to the middle of the River Appalachicola, or Catahouchee; thence," &c. This treaty declares and agrees that the line which was described in the treaty of peace between Great Britain and the United States as their southern boundary, shall be the line which divides their territory from East and West Florida. VOL. VII. 18 Stats. at Large, 54. 2 Ib. 138. 29 Henderson v. Poindexter's Lessee. 12 W. The article does not import to be a cession of territory, but the adjustment of a controversy between the two nations. It is understood as an admission that the right was originally in the United States. Nor is there any thing extraordinary in this admis[*535] sion. The negotiations were all depending at the same time and the same place. That between the United States and Great Britain was first completed and signed; it must have been communicated to France, and, of course, was known to Spain; in it the southern boundary of the United States was accurately defined. The subsequent cession of the Floridas to Spain contained no description of boundaries. Great Britain could not, without a breach of faith, cede to Spain what she had acknowledged to be the territory of the United States. No general words ought to be so construed. We think that Spain ought to have understood the cession, and must have understood it as being made only to the extent that Britain might rightfully make. This opinion is confirmed by a subsequent part of the same article, which respects the troops, &c., of either party in the territory of the other. It is in these words: "And it is agreed that, if there should be any troops, garrisons, or settlements of either party in the territory of the other, according to the above-mentioned boundaries, they shall be withdrawn from the said territory within the term of six months after the ratification of this treaty, or sooner if it be possible; and that they shall be permitted to take with them all the goods and effects which they possess." itants. It has been very truly urged by the counsel for the defendant in error, that it is the usage of all the civilized nations of the world, when territory is ceded, to stipulate for the property of its inhabAn article to secure this object, so deservedly held sacred in the view of policy as well as of justice and humanity, is always required, and is never refused. Had Spain considered herself as ceding territory, she could not have neglected a stipulation which every sentiment of justice and of national honor would have demanded, and which the United States could not have refused. But instead of requiring an article to this effect, she has expressly stipulated for the withdrawal of the settlements made within what the treaty admits to be the territory of the United States, and for permission to the settlers to bring their property with them. We think this an unequivocal acknowledgment, that the occupation of that territory by Spain was wrongful; and we think the opinion thus clearly indi[*536] cated was supported by the state of facts. It follows that Spanish grants made after the treaty of peace, can have no intrinsic validity, and the holders must depend for their titles on the laws of the United States. We proceed, then, to inquire into the rights of the plaintiff in error under those laws. Henderson v. Poindexter's Lessee. 12 W. The first act to which our attention has been directed, is that by which Georgia ceded her western territory to the United States. That act provides: "That all persons who, on the 27th day of October, 1795, were actual settlers within the territory thus ceded, shall be confirmed in all the grants legally and fully executed prior to that day, by the former British government of West Florida, or by the government of Spain." On the 3d of March, 1803, vol. 3, s. 546,1 congress passed "An act regulating the grants of land, and provided for the disposal of the lands of the United States south of the State of Tennessee.” The first section enacts that any person or persons "who were resident in the Mississippi territory on the 27th day of October, 1795, and who had, prior to that day, obtained, either from the British government of West Florida or from the Spanish government, any warrant or order of survey for lands lying within the said territory, to which the Indian title had been extinguished, and which were, on that day actually inhabited and cultivated by such person or persons, or for his or their use, shall be confirmed in their claims to such lands, in the same manner as if their titles had been completed." This section places those persons who had obtained a warrant or order of survey on the 27th of October, 1795, on equal ground with those whose titles were completed, provided the Indian title was extinguished, and provided also the land claimed was actually inhabited and cultivated, either by the person claiming title, or by some other for his use. The second section provides for those who did, on that day of the year 1797, when the Mississippi territory was finally evacuated by the Spanish troops, actually inhabit and cultivate a tract of land in that country; and the third *section gives a preëmp- [*537 ] tion to those who did actually inhabit and cultivate a tract of land at the time of passing the act. The 4th section enacts that two land-offices shall be established for the disposal of the lands of the United States in the Mississippi territory, one in the county of Adams, and the other in the county of Washington; and the 5th directs "that every person claiming lands by virtue of any British grant, or of the first three sections of the act, or of the articles of agreement and cession between the United States and the State of Georgia, shall, before the last day of March, in the year 1804, deliver to the register of the land-office within whose district the land may be, a notice in writing, stating the nature and extent of his claims, together with a plat of the tract or tracts claimed; and shall also, on or before that day, deliver '2 Stats. at Large, 229. Henderson v. Poindexter's Lessee. 12 W. to the said register, for the purpose of being recorded, every grant, order of survey, and conveyance or other written evidence of his claim, and the same shall be recorded," &c.; " and if such person shall neglect," &c., "all his right, so far as the same is derived from the above-mentioned articles of agreement, or from the first three sections of this act, shall become void, and forever thereafter be barred." The 6th section directs the appointment of two boards of commissioners, for the purpose of ascertaining the right of persons claiming the benefit of the articles of agreement and cession between the United States and the State of Georgia, or of the first three sections of the act. One of these boards was to take cognizance of claims to lands lying west of Pearl River, and the other of claims to lands lying east of that river. Each board was empowered to hear and determine, and decide, in a summary manner, all matters respecting such claims within their respective districts; and their determination, so far as relates to any rights derived from the articles of agreement with Georgia, and from the first three sections of the act, was declared to be final. The act proceeds to direct that each board may appoint a clerk, "whose duty it shall be to enter in a book to be kept for that purpose, perfect and correct minutes of the proceedings, decisions, meetings, and adjournments of [*538] the boards, together with the evidence on which such decisions are made; which books and papers, on the dissolution of the boards, shall be transmitted to and lodged in the office of the secretary of state. The commissioners are directed to grant certificates to all persons in whose favor decisions shall be made, which certificates are to be recorded by the register of the land-office, and amount, in all cases where grants have been made, to a complete relinquishment on the part of the United States; and, where grants have not been made, entitle the party to receive one from the United States. * A supplemental act was passed, in March, 1804, which prolonged the time until the last day of November in that year, for giving the notice prescribed by the fifth section of the original act, to the reg ister of the land-office, of claims to lands lying west of Pearl River, for the purpose of being recorded. This act provides that in cases of a complete British or Spanish grant, it shall not be necessary for the claimant to have any other evidence of his claim recorded except the original grant or patent, together with the warrant or order of survey, and the plot. The 3d section enacts, "that when any Spanish grant, warrant, or order of survey shall be produced to either of the said boards, for lands which were not, at the date of the instru ment or within one year thereafter, inhabited, cultivated, or occupied |