UNITED STATES V. CLARKE, 33 U. S. 436 (1834)

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U.S. Supreme Court

United States v. Clarke, 33 U.S. 8 Pet. 436 436 (1834)

United States v. Clarke

33 U.S. (8 Pet.) 436


Construction of the articles of the treaty between the United States and Spain ceding Florida, relating to the confirmation of grants of lands made by the Spanish authorities prior to the treaty.

An examination of the authority of the Governors of Florida and of other Spanish officers under the Crown of Spain to grant lands within the territory, and of the manner in which that authority was exercised.

An examination of the legislation of the United States on the subject of the examination and confirmation of Spanish grants of land in the Territory of Florida, made before the cession of the same to the United States.

As the United States is not suable of common right, the party who institutes a suit against it must bring his case within the authority of some act of Congress or the court cannot exercise jurisdiction.

In courts of a special limited jurisdiction, which the Superior Court of East Florida unquestionably is in this case, the pleadings must contain averments which bring the cause within the jurisdiction of the court or the whole proceedings will be erroneous.

It was obviously the intention of Congress to extend the jurisdiction of the court to all existing claims and to have them finally settled. The purpose for which the act was made could not be otherwise accomplished. Any claim which the court was unable to decide on the petition of the claimant would remain the subject of litigation. This would defeat the obvious intention of Congress, which ought to be kept in view in construing the act.

The words in the law which confer jurisdiction and describe the cases on which it may be exercised are "all the remaining cases which have been presented according to law, and not finally acted upon." The subsequent words "shall be adjudicated," &c., prescribe the rule by which the jurisdiction previously given shall be exercised.

On 4 April, 1829, the following petition was filed by the appellee in the Superior Court of Florida.

"To the honorable the judge of the superior court for the district and territory aforesaid, in chancery sitting: "

"The petition of George J. F. Clarke, a native and inhabitant of the aforesaid territory, respectfully showeth:"

"That upon 6 April in the year of our Lord 1816, Don Jose Coppinger, then Acting Governor of the Province of East Florida (by virtue of authority derived from the Spanish government) actually made to your petitioner an absolute title in fee of five miles square of land, which your petitioner avers amounts to the number of sixteen thousand acres, on the

Page 33 U. S. 437

west side of St. John's River, near and at Black Creek and at a place called White Spring, for and in consideration of your petitioner's having actually (before the day of the date of said grant) constructed a saw mill, to be impelled by animal power, which sufficiently appeared by proof to the said governor, as is fully evidenced by the tenor of the grant aforesaid, and as a reward for the industry and ingenuity of your petitioner in the constructing of the aforesaid saw mill, and for other causes and considerations in said grant set forth, all of which will more fully appear by reference to said grant, a certified translation whereof will in due time be filed herewith, and exhibited to this honorable court, and prayed to be made a part hereof."

"Your petitioner further showeth that, finding there was not vacant land at the place aforesaid suiting his wishes sufficient to make the amount or number of acres aforesaid granted to him, he did, on 25 January, 1819, file a memorial before the aforesaid Governor Coppinger praying to be allowed to survey eight thousand acres of said grant on other vacant lands, and that by a decree or grant of the aforesaid governor Don Jose Coppinger bearing date on 25 January, 1819, the prayer of your petitioner was accorded to him, as will fully and at large appear by reference to a translation of a document herewith filed."

"Your petitioner further states that in pursuance of and in accordance with the grant first before referred to and the subsequent grant amendatory thereto, the said lands were surveyed to him in three surveys. One of eight thousand acres at a place in the original grant named on the west shore of St. John's River, beginning at a stake at Picolata ferry landing and running south eighty-two degrees west one hundred and ten chains to a pine; second line, north fifteen degrees west one hundred and twenty-three chains, to a pine; third line, north five degrees east one hundred and twenty-three chains, to a pine; fourth line, north thirty-five degrees west one hundred and seventy-five chains, to a pine; fifth line, north eighty-two degrees west one hundred and fifty-four chains, to a pine; sixth line, north sixty degrees west one hundred and seventy-four chains, to a pine; seventh line, north twenty-five degrees east one hundred and twelve chains, to a stake on the south side of

Page 33 U. S. 438

Buckley Creek at the mouth, and thence with the meanders of St. John's River to the beginning. One other survey of three thousand acres, situated in and about Cone's Hammock, to the south of Mizzell's or Orange Lake, beginning at a stake and running thence south seventy degrees east one hundred and sixty-three chains ninety-two links, to a pine; second line, south twenty degrees west one hundred and twenty-two chains fifty links, to a hickory; third line, north seventy degrees west one hundred and twenty-two chains fifty links, to a red bay; fourth line, north fifty-eight degrees west one hundred and forty-four chains, to a pine; fifth line, north twenty degrees, east ninety chains seventy-one links, to the beginning. And one other survey of five thousand acres, situated in Lang's Hammock, on the south side of Mizzell's or Orange Lake. Plats and certificates of all which surveys will in due time be filed and exhibited herein, the lands herein designated all being and lying within the jurisdiction of this court."

"Your petitioner further states that his aforesaid claim was filed before the board of commissioners appointed to ascertain claims and titles to lands in East Florida, who, as he is informed and believes, have refused to recommend the same to the favorable notice of the United States government, and have rejected the same, but have not reported it forged or antedated. But your petitioner is advised and believes and alleges and avers that by and under the usages, customs, laws, and ordinances of the King of Spain, he is entitled to, and invested with a complete and full title in fee simple to the lands so as aforesaid granted to him, and that by the treaty between Spain and the United States of 22 February, 1819, the United States is bound to recognize and confirm to him his aforesaid title in as full and ample a manner as he had or held the same under the Spanish government. Without this, as far as your petitioner is advised, the United States is the rightful claimant to said lands."

"And your petitioner prays in consideration of the premises that this honorable court will take jurisdiction of this his petition, and that a copy hereof, and a citation to show cause, &c., may be served on Thomas Douglass Esquire, United States District Attorney for this district, pursuant to the provisions of

Page 33 U. S. 439

the statute in such cases made and provided, and, finally that your honor will decree to your petitioner a confirmation of his title to the lands in this his petition claimed, and all such further and other relief as in equity he is entitled to, and your petitioner, as in duty, &c."

On 25 January, 1819, the claimant presented a petition to the governor of the province setting forth that the land in the neighborhood of White Spring, which had been granted to him, did not answer his expectation, and praying that the surveyor appointed to survey the land granted to him might be directed to alter the survey so as to reduce the square of five miles to the depth of about two and a half miles, by its original length of five miles, and that the surveyor might be further instructed to survey the residue of the quantity granted to the petitioner, "in the Hammock, called Lang's and Cone's, situated on the south of Mizzell's Lake." On the same day, 25 January, 1819, the governor granted the request of the petitioner.

On 24 February, 1819, the surveyor gave a certificate that he had surveyed to the petitioner, eight thousand acres of land, west of the River St. John's, beginning at the mouth of Berkley Creek, below White Spring, and following upwards the margin of said river, &c.

On 10 March, 1819, the said surveyor gave another certificate that he had surveyed for the petitioner five thousand acres of land in the place called Lang's Hammock, situated south of Mizzell Lagoon, west of the River St. John's, in part of a greater quantity granted to the said petitioner, on 6 April, 1816.

On 12 March, 1819, the said surveyor gave another certificate in which he states that he had surveyed to the petitioner three thousand acres of land in the place called Cone's Hammock, being the complement of a greater quantity which was granted to him on 6 April, 1816.

The following copies of the petition, decree and grant were annexed to the petition.

"(Translation) Memorial. To the Governor: Don George Clarke, a native of this province, with due respect, presents himself to your honor and says that, having noticed the constant scarcity of sawed lumber in this province, and particularly

Page 33 U. S. 440

at this town, which, in consequence of the scantiness of this indispensable material, has but half of the population that it ought to have, and induced by the general advantages that may result from mills worked by animals over those worked by water, wind, or fire, because they are less expensive, more secure, and adapted to any station, he has accomplished one at this town of his own invention and workmanship, which, with four horses, saws eight lines at a time, at the rate of two thousand superficial feet per day. Therefore he prays that your honor will be pleased to grant him a title of property to the quantity of land your honor had thought proper to assign to the water mills for their continual supply, forming a quantity equivalent to a five mile square, which lands he solicits on the western part of the St. John's River, above Black Creek, at a place entirely vacant, known by the name of White Spring. He hopes to receive this grant from your honor's kindness because, by this proof of his industry and labor, he has given to the public an invention that by its expediency, simplicity, and cheapness offers from this source of lumber the most considerable advantages not only to the royal revenue, but to the public also, by the labor of cutting, use, and commerce."

"Fernandina, March 16, 1816."

"P.D. For proof of what I have stated to your honor, I herewith present a certificate of the civil and military commander of this town, ut supra."


"Grant to Clarke for sixteen thousand acres. Decree. St. Augustine, April 3, 1816. This government has granted lands to other individuals, inhabitants of this province, who have solicited them for the cutting of timber and the use of the same for the saw mills or machines that they intend to establish, but with the condition of being without effect until these establishments be made. And whereas Don George Clarke proves, by certificate of the commander of the Town of Fernandina, that he has constructed a mill of great utility that offers advantages to that settlement, which it is the duty and interest of government to promote in compliance with royal orders dispatched for that purpose, rewarding the industrious and laborious as an example to encourage other inhabitants, and procure the increase of invention, it is granted to the aforesaid

Page 33 U. S. 441

Don George Clarke the five miles square of land that he solicits, of which a title shall be issued comprehending the place and under the boundaries set forth in this petition, without injury to a third person."


"(Translation) Title of property of five miles square of land to Don George Clarke. Don Jose Coppinger, lieutenant colonel of the royal army, civil and military governor pro tempore, and chief of the royal domain of this city and its province, &c.:"

"Whereas, by a royal order communicated to this government, on 29 October, 1790, by the Captain General of the Island of Cuba and the Two Floridas, it is provided, among other things, that to foreigners who of their free will present themselves to swear allegiance to our sovereign there be granted to them lands gratis in proportion to the workers that each family may have, and whereas Don George Clarke, inhabitant of the Town of Fernandina, has presented himself, manifesting that he has constructed, from his own ingenuity a machine that, with four horses, saws eight lines at one time, cutting two thousand superficial feet of timber in a day, and soliciting, in virtue thereof, a grant in absolute property of five miles square of land for a stock and supply of timber, which is the portion that has been granted for water saw mills, and having pointed out a competent tract of the west side of St. John's River, above Black Creek, at a place called White Spring, that is vacant, which establishment of said machine has been proved by a certificate of the civil and military commandant of the Town of Fernandina, therefore, and in consideration of the advantages arising from such improvements in this said province, and in order that, by rewarding the industrious and ingenious, it may serve as an example and stimulus to other inhabitants, I have found proper, by my decree of the third of the present month, to order the issue of a competent title of property of said five miles square of land, as will appear more fully by the proceedings had on the occasion, and existing in the archives of the present notary. Therefore I have resolved to grant, as in the name of his Majesty I do grant, to the said George Clarke, the aforementioned five miles square of land for himself, his heirs, and successors, in absolute property, and I do issue, by these presents, a competent title, whereby I

Page 33 U. S. 442

separate the royal domain from the right and dominion it had to said lands, and I cede and transfer the same to the said George Clarke, his heirs and successors, to possess them as their own, and to use and enjoy them without any encumbrance or tribute whatever, with all their inlets, outlets, uses, customs, rights, and services, which they have had, have, and by custom or law may have, or in any wise may appertain to them, and at their will to sell, cede, transfer, and dispose of them at their pleasure. To all which I interpose my authority as I can, and of right ought to do by virtue of these presents and the sovereign will. Given under my signature and countersigned by the notary of government and royal domain in this City of St. Augustine of Florida on 6 April, 1816."


"By order of His Excellency."


"Notary pro tem. of Gov. and Royal Domain"

The answer of the United States district attorney expressly denies that by and under the usages, customs, laws, and ordinances of the King of Spain, the petitioner is entitled to and vested with a full and complete title in fee simple or any other title whatever to the said land, and that the supposed grant to the said petitioner is entirely null and void.

The answer further denies that Governor Coppinger had any power or authority whatever to make such a grant, and that if such a grant was ever made to the petitioner, it was made in violation of the laws, ordinances, and royal regulations of the Spanish government.

The decree of the court below confirmed the claim of the petitioner not to the land described, and which, if any, was vested in the said petitioner by the grant of Governor Coppinger dated 6 April, 1816, but other lands described by the surveyor in his several certificates, dated 24 February and 10 and 12 March, 1819.

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