APPEAL from the Superior Court of East Florida.

The appellee, Elizabeth Wiggins, on the 1st of August, 1815, presented a petition to Estrada, the governor of East Florida, stating that, 'owing to the diminution of trade, she will have to devote herself to the pursuits of the country;' and wishing to establish herself on the eastern side of the pond of St. George, 'she asked the governor to grant three hundred acres in the said place, as she had five children, and five slaves, with herself.'

By a decree of the 6th of August, 1815, the object of the petition was granted by Governor Estrada, and 'a certified copy of this instance and decree,' was ordered to be issued to the petitioner, 'from the secretary's office.' A certified copy of these documents was given to the petitioner, on the same day, by 'Don Tomas De Aguilar.'

A survey of the land was made by the surveyor general of the province, on the 23d of March, 1821. On the 26th of May, 1831, Elizabeth Wiggins presented a petition to the judge of the Superior Court of East Florida, stating her claim to three hundred acres of land, granted to her by Governor Estrada, and praying that the validity of the claim might be inquired into, and decided by the Court, in pursuance of the acts of Congress.

The answer of the District Attorney of the United States to this petition, denied the right of Elizabeth Wiggins to the land claimed on many grounds. Those which were brought into examination, and decided upon, were:

First, That the petitioner had never taken possession of or cultivated the land.

Second, The petitioner was required to make proof that a grant for the land had been issued.

Third, That the petitioner having failed and neglected to occupy, improve, or cultivate the land, and having abandoned it, the right and title thereto, if any had existed, were wholly forfeited and lost.

Subsequently, a replication to the answer of the United States was filed, and the original certified copy of the grant to Elizabeth Wiggins of the land, the same being certified by Tomas De Aguilar, secretary, &c., was offered in evidence by the claimant, and was objected to by the United States.

The Court admitted the evidence.

By an amended bill, the petitioner also stated, that no condition of settlement or improvement was contained in the grant of the land; and that if any condition of settlement had been contained in it, the unprotected situation of that part of East Florida from Indian depredations and aggressions, from the time of the grant to the cession of the territory of Florida to the United States, had rendered it impossible to settle in that portion of the country with safety to the persons or property of those who might venture so to do.

The United States in an amended answer, set up in further opposition to the claim of the petitioner, the usage, practice, and custom, of the government of Spain, which prevailed when the alleged arant was made; that ten years' occupancy and cultivation of the land, under such a grant, was necessary to give the grantee the title in fee simple to the land. The United States stated other objections to the title claimed by the petitioner; and denied that the settlement of the land was rendered dangerous by the disturbed state of the country.

The parties to the cause proceeded to take evidence in support and in opposition to the claim of the petitioner; and the cause was heard on the documents and evidence. At July term, 1838, the Superior Court made a decree confirming the title of Elizabeth Wiggins to the land claimed by her. From this decree the United States took an appeal to this Court.

The case was argued by Mr. Gilpin, Attorney General, and Mr. Dent, for the United States; and by Mr. Downing, for the appellee.

Mr. Gilpin, for the United States.

This is one of a numerous class of cases which has of late years repeatedly claimed the consideration of this Court. The rule laid down by the late Chief Justice is one that should be recognised whenever they are discussed: that 'it would violate the usage of nations, and outrage the sense of justice, to annul private rights.' To protect these is the duty of this Court; and it was also unquestionably the desire and object of the executive government, when it made the treaty with Spain. The eighth article of that treaty was adopted after much discussion and change; and these discussions turned mainly on the provisions which were to guard private and existing interests. But, on the other hand, fraud is to be prevented; the public domain, of which the acquisition was costly, is to be protected; opportunities of deception growing out of the change of dominion are to be watched; titles are to be saved from embarrassment and conflict; and the regulations made imperative on the landholder, by the Spanish laws, are not to be wantonly relaxed. The Spanish land law in Florida was one of great liberality; occupation and cultivation formed the only price which the government required from its grantees; but this price it did absolutely require. While, therefore, we sacredly uphold every vested right, and reserved to every citizen of Florida the privileges he derived under the Spanish law, we must exact of him proof of a compliance with the conditions that law imposed, before we allow him the benefit of its privileges. We have no right to tolerate what would facilitate or sanction fraud or unjustifiable negligence.

The Spanish government would not, in its most liberal spirit, have confirmed to the present claimant the grant of land she now seeks to obtain. Her claim is founded on a concession of three hundred acres, alleged to have been given by Governor Estrada, in 1815, and to have been surveyed in 1821; but never, as is admitted, possessed or cultivated to this day. Two inquiries, therefore, present themselves: first, whether such a concession was ever made in point of fact; and secondly, whether, if it was not, the acts of the claimant since have been such as now to authorize its confirmation.

1. That no such concession was ever granted by Governor Estrada may be inferred from the fact that none was ever produced or exhibited until the year 1833, eighteen years after it purports to have been made. The claim itself first appears in the report of the register and receiver, dated in January, 1827, twelve years after the alleged grant. Even then it is sustained only by an alleged certificate of survey, dated on the 23d March, 1821, purporting to have been made by the surveyor general, Clarke, six years after the grant, in face of the Spanish law, which required the possession to be taken within six months after the date of the grant. There was no evidence of occupation or cultivation; none of the existence of the concession now relied on; its existence was not even alleged till the year 1833; the claim up to that time was admitted to rest on the certificate of survey by Clarke, which, if genuine, was made by him in direct violation of the Spanish land law.

But, independent of the strong inferences resulting from these circumstances, the documentary title now set up is inadmissible as legal evidence. No original paper is exhibited; of the concession we have merely a copy certified by Aguilar, the governor's secretary; of the certificate of survey we have merely a copy certified by the keeper of the public archives. No evidence is offered to show that either of these papers ever existed. Aguilar, the person who copied the concession, is not produced; Clarke, the surveyor general, who is examined, does not prove either the concession or his own certificate of the survey; Alvarez, a clerk in Aguilar's office at the time, never saw or heard of the original concession; Cavedo, a clerk in the record office knows nothing of it; no evidence of its existence, and consequently of its loss or destruction, appears throughout the record.

To supply the want of this, the claimant attempts to establish a presumption of loss, by alleging that the documents in the record office were so carelessly kept as to make the loss of these papers very probable. But this allegation is quite inconsistent with the testimony before this Court. The papers are shown, at all events, to have been carefully kept from 1815 to 1821; yet Alvarez, who kept them, and constantly examined them, never saw such a concession; in 1821, the return of the survey must have led him to recur to it, if in existence: the surveyor general, who was well acquainted with the office papers, never saw it: in a list of documents made soon after the change of flags, neither the concession nor certificate of survey is alluded to. These circumstances, taken in connexion with the fact that the concession was never relied on by the claimant till 1833, are inconsistent with the presumption of existence and loss. Nor is this all; there is evidence which goes far to raise a contrary presumption: the loss of no grant from these archives has been alleged, except such as now depend on copies certified by Aguilar; and evidence was offered to prove, that, in two cases at least, he had proposed to forge, or did actually forge, documents of a similar character; although this evidence, being objected to by the claimant, was no doubt properly rejected, yet it forms a strong circumstance, taken in connexion with the rest, to authorize a presumption that there never was any original concession.

Admitting, however, the facts on which the claimant presumes this loss, yet they can have no weight, as legal evidence, without previous proof that the document in question did actually exist. Satisfactory testimony that the original existed, is absolutely necessary before the certified copy can be admitted. In the case of Goodier vs. Lake, 1 Atkyns, 446, Lord Hardwicke required, not merely that the existence but the genuineness of a note, alleged to be lost, should be shown before a copy was admitted; and in that of Irwin vs. Simpson, 7 Bro. Parl. Cases, 317, an office copy of a bill was rejected, though an officer of the Court was ready to prove that the original could not be found, after a search among the records. In the case of Cauffman vs. The Congregation of Cedar Springs, 6 Binney, 63, the Supreme Court of Pennsylvania held, that, in order to prove the substance of a written agreement, evidence of its existence must be first given, and then that it was lost or destroyed. So in the case of Meyer vs. Barker, 6 Binney, 237, the same Court say, that before secondary evidence of the contents of a written instrument can be given, 'there must be proof that such instrument once existed, and is lost or destroyed.' This rule has been repeatedly recognised by other judicial tribunals; Jackson vs. Todd, 3 Johns. Rep. 304; Spencer vs. Spencer. 1 Gallison, 624: and, in this Court, distinct proof that a lost deed had been in possession of a person to whom it properly belonged, was regarded as a necessary ground for the admission of secondary evidence of its contents. Minor vs. Tillotson, 7 Peters, 101. The present claimant offers no direct testimony whatever of the existence of her concession. The only evidence in fact is, that a copy of it is referred to in the certificate of survey; but even of that certificate of survey nothing but a copy is produced. Clearly, the case is not brought within the well established rule.

It is contended, however, that the rule in question does not apply where the originals are placed in a public office, and the office is allowed by law to give to the parties certified copies. To this it is answered, in the first place, that this exception does not in any case dispense with direct proof of the original having existed; but, in the second place, it is never applicable in a case where the genuineness of the original is contested. In the case of the United States vs. Percheman, 7 Peters, 84, where the question arose in regard to the admission of these certificates, it was declared by the Court, in admitting them, that the original must be produced, if either party should suggest the necessity of so doing. In the case of Minor vs. Tillotson, 7 Peters, 101, it was held, that wherever suspicion hung over the instrument, the copy was not to be admitted without rigid inquiry. In the case of the United States vs. Jones, 8 Peters, 382, it was held, that although a certified treasury transcript of documents filed in the public offices, is made, by law, of equal validity with the originals, yet the defendant is at liberty to impeach the evidence thus certified, and, on allegation of fraud, require the production of the original. In the case of Owings vs. Hull, 9 Peters, 626, where the copy of a bill of sale in Louisiana was admitted, it was done upon the express ground that the original was in the possession of the notary. In the case of Winn vs. Patterson, 9 Peters, 675, it was held, that there must be satisfactory proof of the genuineness and due execution of a power of attorney, before a copy from the public office of the recorder could be received. In the case of the United States vs. Delespine, 12 Peters, 656, the extent to which these certificates of Florida concessions were to be admitted, as evidence, was discussed; and their admission was made to depend upon the fact that there was positive proof of the existence of the original concession, in the office of the secretary who gave the certificate. This case, therefore, is not excepted from the common law rule, making proof of the existence of the original necessary, by the fact that its deposit in a public office was required.

It is however contended, that by the usages recognised in the Spanish law, the certificate is evidence without proving the existence of the original. No authority has been cited on this point; no law, order, receipt, or judicial decision to that effect, has been exhibited. The claimant relies on the parol evidence of a few persons in Florida, to prove what, if it exists, must be a well settled rule in the judicial tribunals of Spain. This is not a matter of mere local usage, which is to be established like an ordinary fact. But taking the parol testimony in the record, it will be found, that in every instance where the witnesses speak of a certified copy of a concession being of equal validity with the original, they explain themselves as referring to cases where the original is known or proved to exist. Alvarez, the principal witness of the claimant on this point, says, that 'he does not recollect a certified copy of a grant being received in evidence in a Spanish Court of justice, where the original was not on file in the proper office; and from his knowledge of the practice of the government, he does not believe that such a copy would be received in evidence in a Spanish Court, unless the party could prove that the original was in the office at the time the copy was made.'

On these grounds, it is submitted that there is no evidence of this concession ever having been made; but a strong presumption against it.

2. If, however, the original concession is proved, still the claimant is not entitled to a confirmation of it, because she performed none of the conditions which were required to perfect her title by the Spanish law.

Grants of land in Florida, by the Spanish authorities, so far as they have come before this Court, appear to have been of three classes.

First. Absolute grants, in consideration of services already performed, which were made by the governors, in special cases, either by virtue of a special power recognised by the laws of the Indies, (2 White's New Recopilacion, 38. 40. 52;) or by the authority given, in particular decrees, coming directly or indirectly from the sovereign, as in the case of the grants conferred upon Salus, Paulin, and Percheman, in reward for their services. 2 White's New Rec. 280. The very nature of these grants forbids a limitation on the quantity, or on the consideration that might move them. They are recognised by this Court in the cases of the United States vs. Percheman, 7 Peters, 97; and United States vs. Clarke, 8 Peters, 453.

Second. Grants in consideration of services to be performed, and deemed specially important for the improvement of the province. These do not seem to have grown out of any law or royal order, but were not infrequent for some years before the cession of Florida. They were established by usage, and recognised as lawful. 2 White's New Recopilacion, 386. 289, 290. The services appear to have been of three kinds: the erection of saw mills, factories, or mechanical works; the introduction and rearing of large numbers of cattle; and the establishment in particular places of large bodies of settlers. The titles to these were, in some instances, absolute on their face, and conveyed a present grant from their date, though coupled with conditions for the subsequent performance of the specified services; or they were mere concessions or incipient grants, securing a future absolute title, on the performance of the conditions. The first are recognised by this Court, in the cases of United States vs. Arredondo, 6 Peters, 745, 746. United States vs. Clarke, 8 Peters, 441. 467. United States vs. Sibbald, 10 Peters, 313; and others. The second, in the cases of United States vs. Mills, 12 Peters, 215, and United States vs. Kingsley, 12 Peters, 477. 486.

Third. But the great class of cases was that of gratuitous grants, in moderate quantities, for purposes of actual occupation and cultivation. To this class is applicable the general system of Spanish land law which existed in Florida and Louisiana; and the regulations embraced under it are as clear and distinct as those of the land laws of the United States. It is true, the grants were gratuitous, but the performance of the conditions annexed by that law, was a consideration as explicit as the payment required by our laws.

The regulations in regard to these grants are first found in the compilation of the laws of the Indies, promulgated by the Spanish sovereign in 1682. By those laws, grants were distributed by the governors to settlers, on condition that they should take actual possession of the lands granted in three months, and build upon and cultivate them; and after four years of such occupation, they were entitled to hold the land in absolute property. 2 White's New Rec. 48. 50, 51. The incipient grant, termed a concession, was deposited in the office of the governor's secretary; but, on proof of the necessary occupation and cultivation, the settler received an absolute grant, or, as it was called, a royal title, which was recorded in the office of the escribano, or notary of the province. 2 White's New Rec. 283. The quantity to be given to each settler is not prescribed in the laws of the Indies, but the governors are directed to graduate it. These regulations are subsequently recognised by the King of Spain, in his royal orders of 1735, 1754, and 1768, (2 White's New Rec. 62. 64. 71;) and in the latter it is declared, that 'where any shall not apply themselves in a proper manner to improve the lands allotted to them, the same shall be taken from them, (which I do without mercy,) and granted to others who shall fulfil the conditions.' In 1770, O'Reilley, the Governor of Louisiana, promulgated his regulations, fixing two hundred and forty arpens as the quantity of a concession for a family, and allowing an absolute title, in the name of the king, after three years' cultivation and improvement, to be ascertained after strict inquiry. 2 White's New Rec. 229, 230. In 1790, under the administration of Governor Quesada, in East Florida, and pursuant to a royal order, dated the 29th November, 1789, we have the quantity allotted to the settlers in that province specifically designated; one hundred acres are assigned to each head of a family, and fifty to each other person composing it, whether white or black; provision is also made, that foreign emigrants shall first take an oath of allegiance to Spain; the surveyor general is required to inform the settlers that they will obtain their concessions or incipient ttles from the governor's secretary; and also, to give them express notice that the conditions prescribed by law must be completed, before they can receive an absolute title. 2 White's New Rec. 276. 1 Clarke's Land Laws, 996-998. In 1797, Governor Gayoso, in Louisiana, enlarged the allotment to two hundred acres for the head of the family, fifty acres for each child, and twenty for each negro; he required possession to be taken within one year, and gave an absolute title after three years' cultivation. 2 White's New Rec. 233. In 1799, Governor Morales declared, explicitly, that notwithstanding the concession, or first grant, by which the settler obtained possession, he was 'not to be regarded as the owner of the land until his royal title was delivered complete.' 2 White's New Rec. 239. In 1803, Governor White, in East Florida, reduced the allotment to fifty acres for the head of the family, twenty-five acres to each child and slave above the age of sixteen years, and fifteen acres to each that was younger; he declared that 'every concession, in which no time was specified, should be null, if possession and cultivation were not commenced within six months.' He also required ten years' possession before an absolute or royal title was granted; and decreed, that if, in any case, the land was abandoned for two years, the title should be absolutely void. 2 White's New Rec. 259. 277. 278. 281. In 1811, Governor Estrada solicited permission to change these regulations, and to be allowed to sell the lands absolutely for money, in lieu of granting them gratuitously on conditions of cultivation and settlement; but all change in the system was explicitly refused. 2 White's New Rec. 266. 267. In 1813, the Cortes, under the new Spanish constitution, passed an ordinance authorizing such sales, but this was repealed the next year, and the previous laws and regulations were restored. Clarke's Land Laws, 1007. 1010. 8 Peters, 455. With this partial exception, (which does not appear to have been acted on in practice,) the regulations of Governor White continued in full force till 1815, when Governor Kindelan, on account of the Indian disturbance, relaxed them so far as to grant absolute titles to settlers who had actually built houses and improved their lands, though the ten years' settlement was not complete. 2 White's New Rec. 288. In 1818, Governor Coppinger, at the instance of Garrido, an agent of the Duke of Alagon, directed a full investigation and review of the land system of Florida to be made; and the report of Saavedra, which was sanctioned by the governor, fully establishes the regulations which have been cited, as then in existence; whether they relate to the absolute grants, the grants upon express condition, or the gratuitous concessions for purposes of settlement and cultivation. 2 White's New Rec. 282. 288.

The claimant's title in this case rests on a concession of Governor Estrada of three hundred acres; not asked or granted for any services, but because 'she has five children and five slaves, with herself.' This entitled her to three hundred acres. At that time the regulations of Governor White were in full force. She never occupied the land or cultivated it, at any time from the date of the concession to the present day. It cannot be doubted but that under the Spanish law, 'her concession is of no value or effect, the prescribed conditions not having been complied with, nor can she by means of it claim any right to the land granted, which should now be considered vacant.' These are the words of Saavedra. 2 White's New Rec. 283.

But it is said the eighth article of the treaty between Spain and the United States, ceding Florida, recognises this as a valid and existing title, because there is no condition expressed in it. The treaty declares, that 'Spanish grants, made before the 24th January, 1818, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid, if the territories had remained under the dominion of Spain.' 6 Laws of the United States, 618. 2 White's New Rec. 210. The meaning of this article has been fully canvassed and settled by this Court. In the case of the United States vs. Arredondo, (6 Peters, 741,) it was held, that under the treaty, and without the necessity of any further act by the United States, all complete and absolute titles then existing, 'stood confirmed;' and this decision was repeated in the case of the United States vs. Percheman, 7 Peters, 89. But all grants which were not complete and absolute, could only be made valid by the legislation of the United States. The question, then, resolves itself into this: has any legislation, in pursuance of this treaty, given validity to a concession or imperfect title, where the grantee had not performed the conditions required by the Spanish law, to make the grant valid? The first act, that of 8th May, 1822, (3 Story's Laws, 1870,) directs an examination by commissioners into the fact, whether the claim presented was valid, 'agreeably to the laws and ordinances previously existing of the governments making the grant.' The act of 3d March, 1823, (3 Story's Laws, 1907,) recognises and directs the same inquiry. The act of 28th February, 1824, (3 Story's Laws, 1935,) makes it incumbent on the claimant to establish, that 'the conditions required by the laws and ordinances of the Spanish government,' shall have been complied with. And the act of 23d May, 1828, (4 Story's Laws, 2124,) which finally submits the claims to a judicial decision, restricts them by the rule prescribed in the act of the 26th May, 1824, (3 Story's Laws, 1959,) to such as 'might have been perfected into a complete title under and in conformity to the laws, usages, and customs of the government, under which the same originated.' While, therefore, a complete and perfect grant is recognised as valid, without inquiring into the fact, how far it had been duly made; it is apparent that neither by the treaty, nor by the legislation of Congress, is an inceptive or imperfect grant confirmed, unless it might have been perfected under the laws and usages of Spain. It has been shown that the present claim could not have been so perfected, but that it was, and is, absolutely null; and 'the land granted should now be considered as vacant.'

Nor can any decision of this Court be shown which goes to establish such a claim; no case exactly similar has come before it; but so far as the principles heretofore laid down, are applicable to it, it submitted that they sustain the ground now taken, on behalf of the United States. If so, the decision of the Court below was erroneous, and the claim of the appellee should be rejected; even if it be admitted that the proof of the existence of the original concession is sufficient.

Mr. Downing, for the appellee, contended,

1. That this copy is full and sufficient proof of the grant: First, by the Spanish laws and usages; and, second, by the common law of England, adopted in Florida, as primary evidence before the Spanish Court—as secondary and sufficient before ours.

2. That the absence of the original from the archives, is accounted for by the carelessness with which the papers were kept; and does not furnish a presumption that it never existed.

The appellee may safely rest her case on the authority of the cases decided by this Court, as to the proof of the grant from Governor Estrada. A certified copy of the grant is presented, and this is the only paper a claimant of land in East Florida can have. The petition for the grant, and the order of the Governor of Florida upon it, are office papers; and always on file in the office of the secretary of the government. Certified copies, which serve as titles, are issued by the government. This was the practice in all such cases.

The question before the Court is upon the validity of the certificate of title.

As to the performance of the condition of settlement, it has been repeatedly held, by this Court, it is a condition subsequent, and does not affect the validity of the grant. 10 Peters, 321. But in the grant to Elizabeth Wiggins, there is no condition of settlement.

It has always been contended in Florida, that even if there is a condition of settlement in the grant, the forfeiture is to be enforced by the government: and until this is done, the grant is in full operation. No case is known in which the forfeiture has been claimed. Grants of this description were made as inducements to settlements and improvements. The government required an agricultural population, to increase the safety of the whole community from Indian depredations. Grants of land were freely given, when offers of settlement were made; but no rigid exaction of penalties followed the failure of the grantee to execute the purposes of improvement and settlement.

This Court, in the case of Percheman, have decided upon the legality of the certified copy of the petition and grant, as evidence. In other cases, the same decision has been made. 12 Peters, 655.

Cited also, in support of the general principles on which the title of the appellee rested, 6 Peters, 727-731. 738. 2 Peters' Digest, 313. Sibbald's case, 10 Peters, 322. 6 Peters, 735.

It is considered as having been settled by the decrees of this Court, in the Florida cases, that all other conditions, but those in Mill grants, are conditions subsequent.

Mr. Justice CATRON delivered the opinion of the Court.