of parties; but in great national concerns where individual rights acquired by war are sacrificed for national purposes, the contract making the sacrifice ought always to receive a construction conforming to its manifest import; and if the nation has given up the vested rights of its citizens, it is not for the court but for the Goverment to consider whether it be a case proper for compensation. In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.* On the other hand, in regard to the effect of the war of 1812, with England, on the treaty of 1794, with that country, it has been determined by the Supreme Court of the United States, without deciding the general point whether treaties in all cases become extinguished ipso facto by war, that the termination of a treaty even if effected by war, cannot divest rights of property already vested under it. "If real estate," said the court, "be purchased or secured under a treaty, it would be most mischiev ous to admit that the extinguishment of the treaty extinguished the right to such estate. In truth, it no more affects such rights, than the repeal of a municipal law affects rights acquired under it. If, for example, a statute of descents be repealed, it has never been supposed that rights of property already vested during its existence were gone by such repeal. Such a construction would overturn the best-established doctrines of law, and sap the very foundation on which property rests."+ A treaty is in many cases merely a contract, and not a legis lative act; in cases of this kind it addresses itself to the polit ical, not to the judicial department; and the Legislature must execute the contract before it can become a rule for the court. But there are many other cases where the treaty is to be regarded not as a contract but as a rule; and in these cases it has the effect of an act of the Legislature. | It is important to notice the rule that in the construction of this class of documents the judiciary, in one respect, do not occupy the same position nor hold the same language that they do in regard to other matters of written law. Whenever the nation, by its properly constituted agents has declared its interpreta * U. S. v. Schooner Peggy, 1 Cranch, 109. Society, &c. v. New Haven, 8 Wheat. 494. Foster & Elam v. Neilson, 2 Peters, 314; see United States v. Percheman, 7 United States v. Arredondo, 6 Peters, tion of a treaty, that interpretation becomes binding on the courts. The Supreme Court of the United States has said, "However individual judges might construe a treaty, it is the duty of the court to conform itself to the will of the Legislature, if that will has been clearly expressed; the courts cannot pronounce the course of their own nation erroneous."* (a) Grants or Patents of Land.-The doctrine of the English law is, that the king was the original owner of all the land in the kingdom, and that the crown is the only source of title. We declare and apply the same principle in regard to our repub lican government; and it is our fundamental rule that all individual title to land within the United States must derive either from the grants of our own local State or territorial gov ernments, or from that of the United States, or from royal governments established here prior to the Revolution, or from the English Crown. Grants or patents of land, therefore, emanating as they do directly from the sovereign power, though, like charters of incorporation, they are in some respects mere private instruments, in other respects they so largely affect public interests as to approach the dignity of statutes, and cannot with propri ety be altogether omitted in a work like the present. The tenure by grant or patent from the crown in early times, partook of the precarious character which then attached. to all political power. A pretext or a reason being found in the allegation that the liberality of the Government was abused or misapplied, these grants were frequently resumed, sometimes by the executive, sometimes by the legislative branch. There are cases of the same kind in the colonial periods of this country ; * Foster et al. v. Neilson, 2 Peters, 253, 307, a case upon the construction of the treaty of San Ildefonso of 1st Oct. 1800. But see Wilson v. Wall, 6 Wall. 83. but they do not fall strictly within the province of this work, and a notice of them would swell this volume far beyond its intended limits. See 2 Black. Com. 51-59, 86, and 105; see also Kent Com. part vi, ch. li, vol. iii, p. Many cases have been decided, both in the Supreme Court of the United States, and in courts of the several States, upon the con- 378. struction of particular treaty stipulations; (a) That rights acquired by treaty cannot be affected by acts of Congress, and that State courts are not governed in their construction of treaties, by the interpretation given, and acted on by other departments of the Government, see Wilson v. Wall, 34 Ala. 288; and see s. c. 6 Wall. 83. Treaty rights of Indians cannot be affected by State legislation. Fellows v. Denniston, 23 N. Y. 420. and their history in both instances bears strong traces of that want of a proper understanding of the true limits of the lawmaking power, and of those loose notions of the sacredness of vested right, from the influence of which we are not yet altogether emancipated.* * See A Discourse upon Grants and Resumptions; showing how our ancestors have proceeded with such ministers as have procured to themselves grants of the crown revenue; and that the forfeited estates ought to be applied towards the payment of the public debts. By the author of the Essay on Ways and Means: London, 1700. It is a history of various resumptions of crown grants, cited as authorities for the resumption, then proposed, of the Irish grants. This, which is one of the most recent instances of the vicious exercise of legislative power in England in disregard of private right on a large scale, deserves more particular notice. The estates of the adherents of James II, in Ireland, were, upon the triumph of William III, forfeited to the crown, and distrib. uted by him among his favorites, male and female, in the shape of grants. A strong opposition to the government existed in Parliament; they laid hold on this abuse, as they considered it, of the royal power; a bill was introduced into the Commons to resume the grants, tacked to a bill of supply, in that way forced through the Lords, and, notwithstanding the great reluctance and indignation of the king, became a law. Smollett's Hume, ch. vi, 25, 26; Lord Campbell's Chan. vol. iv, pp. 146, '7. In order to do justice to purchasers and creditors, or rather to mitigate the injustice of the act, trustees were appointed to hear and determine all claims; and they were also empowered to sell the lands to the best purchaser, and the proceeds were appropriated to the army arrears. The act is the 11 and 12 William III, c. 2, and is entitled, an act for granting an aid to his majesty by sale of the forfeited and other estates and interests in Ireland, and by a land tax in England for the several purposes therein mentioned of two shillings in the pound. * Speaking of this transaction, Mr. Hallam says," that as the grants had been made in the exercise of a lawful prerogative, it is not easy to justify the act of resumption passed in 1699. The precedents for the resumption of grants were obsolete and from bad times. Acts of this kind shake the general stability of possession, and destroy that confidence in which the practical success of freedom consists, that the absolute power of the Legislature, which in strictness is as arbitrary in England as in Persia, will be exercised in conformity with justice and lenity. * There can be no doubt that the mode adopted by the Commons of tacking, as it was called, the provisions for the purpose to a money bill, so as to render it impossible for the Lords even to modify them without depriving the king of his supply, tended to subvert the Constitution and annihilate the rights of a co-equal House of Parliament. If the Commons have desisted from encroachments of this kind, it must be attributed to that which has been the great preservative of the equilibrium in our government, the public voice of a reflecting people averse to manifest innovation, and soon offended by the intemperance of factions."— Const. Hist. vol. iii, ch. 15, § 192, '3. A striking case of the same disregard of private rights occurs about the same time in the history of the colony of New York. An act of the Colonial Assembly of New York, entitled, an act "for the vacating, breaking, and annulling several grants of land made by Colonel Fletcher, the late gov ernor of this province under his majesty," passed the 12th of May, 1699, recites in the preamble that, "their excellencies, the lords justices of England have, by their instructions unto his excellency the governor, bearing date the 10th day of November, 1698, directed his said excellency to use all legal measures for the breaking of extravagant grants of lands in this province." It then goes on to recite eight grants to Godfrey Dellius, Dellius and others, Nicholas Bayard, John Evans, The Churchwardens, &c., of Trinity Church, and Caleb Heathcote; declares them all extravagant, within the meaning of the lords justices' instructions; breaks, vacates, and annuls them, and directs the records to be obliterated, and declares the crown to be reseized and possessed of the premises. Whatever may be thought of the right to annul these grants; as to their extravagance a notion may be formed from the first to Godfrey Dellius, which contained about seventy miles on the Hudson river, by twelve broad, at the reserved rent of one raccoon skin per annum ! Van Schaick's Laws, vol. i, pp. 31 and 51. This act was repealed on the 27th of November, 1702, and the repealing act was itself repealed, or rather disapproved by the queen on the 26th of June, 1708. The act of 1699 also contained a clause that it should not be in the power of the provincial governors to grant or demise certain lands for any longer period than for their own time in the government, and in regard to this, in Bogar dus v. Trinity Church, 4 Sandf. Ch. R. 737, it was contended that the effect of the repeal or disapproval of the repealing act was to I have said that the Governments of the Union and of the States have succeeded to the right of the British sovereign in the public lands. That right was frequently exercised during the colonial power, and many titles grow out of royal grants or patents. In regard to these, it has been said that in England nothing passes as against the crown by implication, and that royal grants are always to be strictly construed.* But we have already had occasion to notice that on this subject the cases are somewhat conflicting. In regard to this rule of strict construc tion, so far as it exists, the Supreme Court of the United States has said that "the decisions and authorities on this point apply properly to a grant of some prerogative right to an individual to be held by him as a purchase, and which is intended to become private property in his hand. For instance, the grant to an individual of an exclusive fishery in any portion of it, is so much taken from the common fund intrusted to his care for the common benefit. In such cases, whatever does not pass by the grant still remains in the crown for the benefit and advantage of the whole community. Grants of that description, are therefore construed strictly." + There are in the State of New York, many grants from colonial governors, which have been upheld to pass the land under water if within the grant, on the ground that the king of England was originally the proprietor of the soil under navigable waters; that his title extended to the province of New York; undo all that had been done while the repealing law continued in force; but it was held not to be so. "Such a rule of construction," said Mr. V. C. Sandford, "applied to private rights, would be deemed most tyrannical, arbitrary, and unjust. For instance, we have an act of Congress requiring a residence of five years to entitle an alien to naturalization. Suppose that Congress at its late session had repealed this law, and enabled aliens at once to become citizens, and an alien now arriving here should take the necessary oaths, become a citizen and purchase lands, and at the next session of Congress the act of the late session should be repealed,-would not the doctrine that thereby all that was done under the statute while it existed was avoided, be deemed monstrous and absurd? The principle is the same in respect of the repeal act of 1702. Rights acquired under it prior to the queen's disapproval were as valid and effectual as if the act of 1699 had never been enacted." that he had power to grant such title to a subject; and that the power was delegated to the colonial governor, as the immediate representative of his sovereign.* And in cases of this kind the conveyance of land by the sovereign authority invests the grantees with the requisite power to take and hold them.† The subject of grants or patents of land is still one of great importance in this country. Vast districts of land still belong, in this country, in fee simple to the Goverment of the United States. Other tracts belong to the separate States. The legis lative bodies exercising the power of these sovereignties, which have succeeded to the rights of the British Crown, have appointed certain public officers to sell and grant these lands, and have provided many forms and checks to secure regularity and to protect equally the public and private rights. But the general principle is, that when these proceedings are consummated by a grant the earlier steps can no longer be inquired into, and that in the absence of fraud a good title is acquired. The patent or grant establishes the fact of every prerequisite having been performed. In New York it is now declared (1 R. S. 198, part i, chap. ix, title 5, art. 1), that the commissioners of the land office shall have the general care and superintending of all lands belonging to the State, the superintendence whereof is not vested in some other office or board; and they have also the power to direct the granting of the unappropriated lands of the State according to the directions from time to time to be prescribed by law. This includes the power to grant lands under the waters of navigable waters or lakes. The New York statute provides that every ap * Gould v. James, 6 Cowen, 396; Rogers v. Jones, 1 Wend. 237; The People v. Schermerhorn, 19 Barb. 540. Goodel v. Jackson, 20 J. R. 706; Jack son v. Lervey, 5 Cowen, 397; North Hempstead v. Hempstead, 2 Wend. 109. Martin v. Waddell, 19 Peters, 367. Polk's Lessee v. Wendell et al. 9 Cranch, 87; Polk's Lessee v. Wendell et al. 5 Wheat. 293; Bouldin v. Massie's Heirs, 7 Wheat. 122, 149; Stringer et al. v. Lessee of Young et al. 3 Pet. 320, 340; Patterson v. Winn, 11 Wheat. 380; Patterson v. Jenks et al. 2 Pet. 227; Sampeyreac and Stewart v. The United States, 7 Peters, 222; New Orleans v. The United States, 10 Peters, 662; Pollard and Pickett v. Dwight et al. 4 Cranch, 421; Bodley and others v. Taylor, 5 Cranch, 191; Massie v. Watts, 6 Cranch, 148; Blunt's Lessee v. Smith and others, 7 Wheat. 248; Boardman and others v. The Lessees of Reed and Ford et al. 6 Peters, 328; Bagnell et al. v. Broderick, 13 Peters, 436; The Philadelphia and Trenton Railroad Co. v. Stimpson, 14 Peters, 448; Brush v. Ware et al. 15 Peters, 93; Stoddard et al. v. Chambers, 2 Howard U. S. R. 284; The People v. Mauran, 5 Denio, 389; Jackson v. Marsh, 6 Cowen, 281; See Mr. Blackwell's able work on Tax Titles, p. 99. TIR. S. 208, part i, chap. ix, title 5, art. 4; Gould v. James, 6 Cowen, 369; |