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APPENDIX.

Page 114

 

 

AN ACT TO PROVIDE FOR THE DISPOSITION OF CERTAIN PROPERTY OF

THE STATE OP CALIFORNIA.

 

The People of the State of California, represented in Senate and Assembly, do enact as follows

 

SEC. 1. All the lots of land situate within the following boundaries, according to the survey of the city of San Francisco and the map or plat of the same now on record in the office of the Recorder of the county of San Francisco, are known and designated in this Act as the San Francisco beach and water lots ; that is to say, beginning at the point where the eastern line of Simmons Street intersects the southern boundary line of the city ; thence northerly on the eastern line of Simmons street to the southern line of South street ; thence easterly on the southern line of South street to a point three hundred and seventy-five feet easterly from Sim­mons street ; thence at right angles to South street, northerly to the eastern line of Hubbell street, thence easterly on the line of Hubbell street, two hundred and seventy-five feet ; thence northerly at right angles to Hubbell Street to the southern side of Hooper street; thence easterly on the southern line of Hooper street, to the eastern line of Fifth street; thence northerly on the eastern line of Fifth street, to the southern line of Channel street; thence easterly on the southern line of Channel street, to the eastern line of Third street ; thence northerly on the eastern line of Third street, to the southern line of Berry street; thence easterly on the southern line of Berry street, to the eastern line of Second street; thence northerly on the eastern line of Second street, to the southern line of King street ; thence easterly on the southern line of King street, three hundred and seventy-five feet ; thence northerly at right angles to King street, to the southern line of Townsend street ; thence easterly on the southern line of Townsend street, to to[sic] the eastern line of First street ; thence northerly on the eastern line of First street, to the southern line of Brannan street ; thence easterly on the southern line of Brannan street, to the erly on the eastern line of Beale street, to the southern line of Bryant street ; thence easterly eastern line of Beale street ; thence north on the southern line of Bryant street, to the eastern line of Spear street ; thence northerly on the eastern line of Spear street, to a point within one hundred and thirty-seven and one-half feet of the southern side of Harrison street ; thence easterly at right angles to Harrison street, to the eastern side of Stuart street ; thence northerly on the eastern line of Stuart street, to the southern line of Folsom street; thence easterly on the southern line of Folsom street, to the eastern line of East street, thence northerly on the eastern line of East street to its point of intersection with the northern side of Jackson street ; thence northerly at right angles with the northern side of Jackson street, to the northern line of Pacific street ; thence westerly along the northern side of Pacific street, to the eastern line of Davis street ; thence northerly along the eastern line of Davis street, to the northern line of Vallejo street ; thence westerly along the northern line of Vallejo street, to eastern line of Front street thence northerly on the eastern line of Front street, to the northern line of Greenwich street thence westerly on the northern line of Greenwich street, to the eastern line of Battery street thence northerly on the eastern side of Battery street, to the northern line of Lombard street thence westerly on the northern line of Lombard street to the eastern line of Sansome street; thence northerly on the eastern line of Sansome street, to the northern line of Chesnut street ; thence westerly on the northern line of Chesnut street, to the eastern line of Montgomery street; thence northerly on the eastern line of Montgomery street, to the northern line of San Francisco street; thence westerly on the northern line of Francisco street, to the eastern line of Kearny street;

 

 

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thence northerly on the eastern line of Kearny street, to the northern line of North Point street; thence westerly on the northern line of North Point street, to the east line of Dupont street thence northerly on the eastern line of Dupont street, to the northern line of Beach street thence westerly on the northern line of Beach street, to the eastern line of Powell street thence northerly on the eastern line of Powell street, to the northern line of Jefferson street thence westerly on the northern line of Jefferson street, to the western line of Larkin street thence following the line of ship’s channel to the western boundary line of said city thence south early along the western boundary line of said city, to the natural high water mark thence along the line of said natural high water mark, to the point of its intersection with the southern boundary line of said city ; thence easterly along the southern boundary line of said city, to its point of intersection with the eastern line of Simmons street, being the place of beginning.

 

SEC. 2. The use and occupation of all the land described in the first section of this Act, is hereby granted to the city of San Francisco, for the term of ninety-nine years from the date of this Act ; except as hereinafter provided. All the lands mentioned in the first section of this Act which have been sold by authority of the Ayuntamiento, or Town or City Council, or by any Alcalde of the said town or city, at public auction, in accordance with the terms of the grant known as Kearny’s grant to the city of San Francisco, or which have been sold or granted by any Alcalde of said city of San Francisco, and confirmed by the Ayuntamiento, or Town or City Council thereof, and also registered or recorded in some book of record now in the office or custo­dy or control of the Recorder of the county of San Francisco, on or before the third day of April A. D. one thousand eight hundred and fifty, shall be, and the same are hereby granted and confirmed to the purchaser or purchasers or grantees aforesaid, by the State relinquishing the use and occupation of the same, and her interests therein, to the said purchasers or grantees and each and of them, their heirs and assigns, or any person or persons holding under them, for the term of ninety-nine years from an and after the passage of this Act; provided that the city of San Francisco shall pay into the State Treasury twenty-five per cent, of all moneys heareafter arrising in any way from the sale or other disposition of time property described in the first section of this Act the same to be paid within twenty days after its receipt by said city. The property known as the Government Reservation is exempt from the operation of this Act, except that any estate held by virtue of any lease or leases executed or confirmed by any officer of the United States on be­half the same, shall be, and the same are hereby granted and confirmed to the lessees thereof; and the written instrument whereby such lease or leases was made, shall, in all actions brought by the lessees for the recovery of the lands so demised, he sufficient evidence of title and possession to enable the plaintiff to recover.

 

SEC. 3. That the original deed or other written or printed instrument of conveyance by which any of the lands mentioned in the first section of this Act were conveyed or granted by such Common Council, Ayuntamiento or Alcalde, or in case of its loss or not being within the control of the party, then a record copy thereof, or a record copy of the material portion thereof, properly authenticated, may be read in evidence in any court of justice in this State, upon the trial of any cause in which the contents of the same may be important to be proved, and shall be prima facie evidence of title and possession to enable plaintiff to recover the possession of the land so granted.

 

SEC. 4. The boundary line described in section first of this Act, shall be and remain a permanent water front of said city; the authorities of which shall keep clear and free from all obstructions, whatever time space beyond line, to the distance of five hundred yards therefore.

 

SEC. 5. The city of San Francisco shall, within thirty days after the passage of this Act, deposit in the office of the Secretary of State of California, and in the office of the Surveyor General of this State, and in the office of the Surveyor of San Francisco, a correct map of said boundary line, mentioned in section one of this Act, distinctly and properly delineated by a red line ; said map to be duly certified to by the Mayor and Surveyor of said city, and under the official seal of said city.

 

SEC. 6. Nothing in this Act shall be construed as a surrender by the State, of its right to

 

 

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regulate the construction of wharves or other improvements, so that they shall not interfere with the shipping and commercial interests of the bay and harbor of San Francisco.

JOHN BIGLER, Speaker of Assembly.

DAVID C. BRODERICK, President of the Senate.

Approved, March 26th, 1851.

JOHN McDOUGAL.

 

 

 

 

 

 

AN ACT CONCERNING THE CITY OF SAN FRANCISCO.

 

The People of the State of California represented in Senate and Assembly, do enact as follows:

 

SEC. 1. The city of San Francisco is hereby authorized and empowered to construct wharves at the end of all the streets connected with the bay of San Francisco ; the wharves to he made by the extension of said streets into the bay in the present direction, not exceeding two hundred yards beyond the present outside line of the beach and water lots; and the city is authorized to prescribe the rates of wharfage that shall be collected on said wharves, when con­structed. The space between the wharves, when they are extended, which is situated outside of the outer line of the beach and water property, as defined by the Legislature, shall remain free front obstructions, and be used as public slips for the accommodation and benefit of the general commerce of the city and State.

 

SEC. 2. The right of the State to beach and water lot property in the city of San Francisco is hereby relinquished to the said city ; provided, always, that the relinquishment to the city is made upon the excess condition that said city shall confirm the titles to all lots are which have been granted by any Justice of the Peace, which lots are situated on that part of the Kearny grant which is within the following boundaries, to wit: bounded on the north by Vallejo street, on the south by Harrison street, on the east by the easterly boundary of said beach and water lots, as defined by the Legislature, and on the westerly side by First and Fremont streets ; and the grants shall be and the same are hereby confirmed and made evidence of title in all Courts of the State, and holders under them shall have possession of said property so granted; provided, always, that this Act shall not be construed as confirming grants to the property known as the public slip, bounded by Davis, Clay and Sacramento streets, nor to any property the title or lease to which has been confirmed to individuals by any former Act of the Legislature ; and said grants must have been recorded in the Recorder’s office prior to the first of February, 1851.

JOHN BIGLER, Speaker of the Assembly.

I)AVID C. I3RODER1CK, 1’re~ident of tie Senate.

Approved, May 1st, 1851.

JOHN McDOUGAL.

 

 

 

 

 

 

ARTICLES EIGHTH AND NINTH OF THE TREATY OF GUADALUPE HIDALGO.

 

ART. 8. Mexicans now established in territories previously belonging to Mexico, and which remain in for the future within the limits of the United States, as defined by the present treaty, shall be free to continue where they now reside, or to move at any time to the Mexican republic, retaining the property which they possess in the said territories, or disposing thereof and removing the proceeds wherever they please, without their being subjected, on this account, to any contribution, tax and whatever.

 

Those who shall prefer to remain in the said territories, may either retain the title and rights and of Mexican citizens, or acquire those of citizens of the United States. But they shall be under the obligation to make their election within one year from the date of the exchange of ratifications of this treaty; and those who shall remain in the said territories after the expiration of that year,

 

 

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without having declared their intention to retain the character of Mexicans, shall be considered to have elected to become citizens of the United States.

 

In the said territories, property of every kind now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy, with respect to its guaranties, equally ample as if the same belonged to citizens of the United States.

 

ART. 9. The Mexicans who, in the territory aforesaid, shall not preserve the character of citizens of the Mexican Republic, conformably with what is stipulated in the preceding Article, shall be incorporated into the Union of the United States and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution; and in the meantime, shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction.

 

 

 

 

SECTION FOURTEENTH OF THE ACT TO ASCERTAIN AND SETTLE PRIVATE LAND CLAIMS

IN THE STATE OF CALIFORNIA.

 

SEC. 14. And be it further enacted, That the provisions of this Act shall not extend to any town lot, farm lot, or pasture lot, held under a grant from any corporation or town to which lands may have been granted for the establishment of a town by the Spanish or Mexican government, or the lawful authorities thereof, nor to any city, or town, or village lot, which city, town, on village existed on the seventh day of July, eighteen hundred and forty-six but the claim for the same shall be presented by the corporate authorities of the said town, or where the land on which the said city, town, or village was originally granted to an individual, the claim shall be presented by or in the name of such individual; and the fact of the existence of the said city, town, or village on the said seventh July, eighteen hundred and forty-six, being duly proved, shall be prima facie evidence of a grant to such corporation, or to the individual under whom the said lot­holders claim and where any city, town, or village shall be in existence at the time of passing this Act, the claim for the land embraced within the limits of the same may be made by the corporate authority of the said city, town, or village.

 

 

 

 

TRANSLATION OF THE INSTRUCTIONS AND POWERS OF MICHELTORENA.

 

Under date of the 11th of February, 1842, the Minister of War says what follows:

MOST EXCELLENT SIR: His Excellency, the President, ad interim, being desirious that the Department of California should take advantage of all the resources which it possesses for its prosperity, for placing itself in a state of defence, and for acquiring that happiness which nature itself invites her to take possession of; and bearing in mind the disturbances which have taken place in the country, and which, on account of the distance, the National Government has not been able to avoid ; the situation in which Y. E. will be placed and the measures which you will have to adopt, and which will produce the desired effect if you wait for the proper time to put them into execution, for there are matters which do not admit of the least delay, and in the persuasion that Y. E. will not abuse your powers but that you will exercise them for the welfare and service of all the inhabitants of that interesting and fertile department which the Supreme Government has placed under your charge and responsibility, he (the President) has been pleased to grant to Y. E. over and above the attributions assigned to you by the existing laws and regu­lations as Governor, Commandant General and Inspector, all the powers which the Supreme

 

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Government can confer upon you, in order that by virtue thereof you may remove from office all such civil and military officers dependent on said Government who shall not fulfill their duties or act up to the confidence reposed in them by the same, and fill their situations by appointing worthy citizens who shall take their places and enter upon their duties, but with the understand­ing nevertheless that you report to Government the motives of your proceedings for its approba­tion. The views of the Supreme Magistrate do not only refer to Upper California, but extend likewise to Lower California, where certain seditious movements have appeared, which being fomented by hidden enemies, it has caused some foreigners to take part when their very quality of foreigners prohibits them from intermeddling in domestic strife ; and as the President is resolved to protect the troops, authorities and citizens of said Peninsula, he has determined that your military command shall likewise extend to Lower California, as well as the civil command, separating it from Sinaloa, and the Commandant General of the Department of Sonora and Sinaloa will continue to furnish you with the resources and assistance which you may require for the purpose of securing peace, furnishing the troops, providing for the wants of the citizens, and enabling you to provide for the prosperity and happiness of the whole Department. Although the 1st article of the law of 2d of November, 1839, derogated the articles of that of the 18th February of the same year, which subjected the subordination of the staff of the army, and the 13th article of the first mentioned decree merely leaves the Commandant General of the East and West with the former attributions of Inspector which they possessed in the Companies of Presidios, his Excellency, the President, has determined that your powers shall extend as In­spector to the permanent Battalion of California, and that you take charge of all the mechanism thereof and report to the staff of the army. You will become acquainted with the good or bad management of the Maritime Custom Houses of both Californias you will have to examine the situation of all the Missions with respect to their management, improvements and state of accounts; you will have to proceed to the inspection and organization of the Companies of Presidios, and in all cases (were you not to act) the evil would have to remain until Government could resolve. The Supreme Government, trusting in your justice and activity, desires that you should meet with no obstacles, and therefore the powers conferred upon you are made extensive to those branches, and to all others which may conduce to the welfare of the country, including among others, the administration of the post office department, colonization, the establishment of presidios, the improvement of ports, the safety of towns, the civilization of wild Indians, the education of youth, the opening of roads, the furtherance of time arts, the protection of agriculture and commerce, the establishment of houses of correction, and the establishment of towns.

 

You know the views of the Supreme Government, and are well aware that being a friend to improvement it merely desires the union of Mexicans, and that the community in general may enjoy the protection of the laws, be obedient to their authorities, understand that it is our duty to procure the welfare of every one and avoid that all others be injured. I, therefore, will not detain myself by recommending you to propagate these principles, and will merely mention that when the Supreme Magistrate dictated his instructions, he wished to manifest to you his esteem, and the importance of the command he has confided to you, and to assure the inhabitants of California that the present administration desires their happiness, disavows all apathy, and is ready to impart to that Department all the resources which it may desire and be able to furnish it.

 

I communicate this to Y. E. for your satisfaction. God and Liberty. Tornel.

Mexico, 11 February, 1842.

 

To GENENAL DON MANUEL MICHELTORENA.

 

 

I certify that the foregoing copy is the same as the one that was copied from the original when I was in charge of the Governor’s Secretaryship.

Monterey, July 6, 1850

(Signed,)   MANL. JIMENO

 

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EXTRACTS FROM THE DECREE OF MICHELTORENA, 29th MARCH, 1843.

 

One of the ample instructions with which the undersigned, General and Governor, finds him­self invested, being that of examining the positions the Missions maintain, in their administra­tion, improvements and liabilities, and to regulate the same, and the National Supreme Govern­ment having invested him with all its powers, as shown in the supreme order of 11th of February, 1842; in accord and with consent of the most Reverend Father Friar JosE Joaquin Jimeno, Friar Jose de Ma. de Jesus Gonzales Rubio, whom to that end I caused to be called before this Government, as well as the Presidents of the other Missions, and in the name and representation of the most Reverend Father President Vicar Foraneo Friar Narciso Duran, being informed of all that was necessary, and considering that the vast and immense lands formerly property of the Missions have been distributed to private individuals, at a time when it was made one of the exigencies of the country; that those pious and beneficial establishments are reduced nearly to the gardens and grounds of their temples and edifices; that the most reverend F. ministers have no means of subsistence except mercenary, and that the divine worship, without prospering, is scarcely maintained; that the Indians, by their natural reluctance to labor, suffer from scanti­ness of food and nakedness, those not in private employment or subjection preferring to flee away and die impenitent in the woody deserts, dragging out a life of slavery fall of privations and without any of the social enjoyments ; that the continual emigration of natives from private indi­viduals to the Missions, and from the Missions to private individuals, and to the wilderness, more and more hinders agriculture, and instead of attracting the heathen, drives them away from the bosom of our holy religion; that in the administration of the Missions some frauds and notorious abuses have been committed, which all the inhabitants of the country lament; and that there are no other means to reanimate the skeleton of a giant, which the remains of the ancient Missions are, than to have recourse to experience and to sustain them with the levers of the civil and ecclesiastical powers; all having been considered and prudently weighed, I have thought proper to resolve the following articles:

 

ART. 1. The Government of the Department will order the Missions of San Diego, San Luis Rey, San Juan Capistrano, San Gabriel, San Fernando, San Buenaventura, Santa Bar­bara, Santa Cruz, La Purisima, San Antonio, Santa Clara, and San Jose to be delivered up to the very reverend fathers whom the respective prelate may appoint to each of them, and said Missions shall in future continue to be administered by the very reverend fathers, as tutors to the Indians, in the same manner as they held them formerly.

 

ART. 2. As policy makes irrevocable what has hitherto been done, the Missions will not claim any lands already granted up to this date; but they will collect the cattle, property and utensils which may have been lent by the priests or administrators, settling the time and manner in a friendly way with debtors or holders.

 

ART. 6. The Departmental Government, which prides itself in being religious, and at the same time entirely Californian, and as such interested in the same manner as each and every one of the inhabitants of both Californias in the progress of the holy Catholic faith amid prosperity of the country, offers all its powers for the protection of the Missions, and, as Commandant General, the force of arms to escort, defend and sustain them, as it will likewise do in respect to individual and private property, and guaranties, securing to the owners thereof the possession and preservation of the lands which they this day hold, and it undertakes not to make any new grants, except on information of said authorities of the reverend fathers, or where the lands are notori­ously unoccupied, or in case of necessity.

 

 

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AN ACT FOR THE RELIEF OF THE CITIZENS OF TOWNS UPON THE LANDS OF THE UNITED

STATES, UNDER CERTAIN CIRCUMSTANCES.

 

Be  it enacted by the Sc. ate and House of Representatives of the United States of America, in Congress assembled:

That whenever any portion of the surveyed public lands has been or shall be settled upon and occupied as a town site, and therefore not subject to entry under the existing preemption laws, it shall be lawful, in case such town or place shall be incorporated, for the corporate authorities thereof, and if not incorporated, for the Judges of the county court for the county in which such town may be situated, to enter at the proper land office, and at the minimum price, the land so settled and occupied, in trust, for the several use and benefit of the occupants thereof, according to their respective interests ; the execution of which trust, as to the disposal of the lots in such town, and the proceeds of the sales thereof, to be conducted under such rules and regula­tions as may be prescribed by the legislative authority of the State or Territory in which the same is situated: Provided, That the entry of the land intended by this act be made prior to the commencement of the public sale of for body of land in which it is included, and that the entry shall include only such land as is actually occupied by the town, and be made in conformity to the legal subdivisions of the public lands, authorized by the act of the 24th of April, 1820, and shall not in the whole exceeding three hundred and twenty acres: And provided, also, That any act of said trustees, not made in conformity to the rules and regulations herein alluded to, sha1l be void and of none effect.

Approved, May 23d, 1844.

 

 

 

 

 

DECISION OF UNITED STATES SUPREME COURT IN REGARD TO TITLE TO LAND

BELOW HIGH WATER MARK.

 

As the title of the city of San Francisco, derived from the State of California, to the lots lying between high water mark and ship channel, rests upon the construction which is to be placed upon the decision of the Supreme Court of the United States in the case of Pollard’s Lessee vs. Hagan et al., decided at the January term, 1845, and reported on page 212 of the third volume of Howard’s Supreme Court Reports, the author has deemed it proper to publish the decision of the court in that case at length, and which was as follows:

 

“This case comes before this court upon a writ of error to the Supreme Court of Alabama.

An action of ejectment was brought by the plaintiffs against the defendants, in the Circuit Court of Mobile county, in said State ; and upon the trial, to support their actions, ‘the plaintiffs read in evidence a patent from the United States for the premises in question, and an act of Congress passed the 6th day of July, 1836, confirming to them the premises in the patent mentioned, together with an act of Congress, passed the 20th of May, 1824. The premises in question were admitted by the defendants to be comprehended within the patent; and there was likewise an admission by both parties that the land lay between Church street and North Boundary street, in the city of Mobile ; and there the plaintiffs rested their case.’

 

"‘The defendants, to maintain the issue in on their part, introduced a witness to prove that the premises in question, between the years 1819 and 1823, were covered by water of the Mobile River at common high tide ;’ to which evidence the plaintiffs by their counsel objected; but the court overruled the objection and permitted the evidence to go to the jury. ‘It was also in proof, on the part of the defendant, that at the date of the Spanish grant to Panton, Leslie & Co., under which they claim, the waters of the Mobile bay, at high tide, flowed over what is now Water street, and over about one-third of the lot west of Water street, conveyed by the Spanish grant to Panton, Leslie & Co.; and that the waters continued to overflow Water street, and the premises sued for, during all the time up to 1822 or 1823 ; to all which admissions of evidence,

 

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on part of the defendants, the plaintiffs excepted.’  The court charged the jury that if they believed the premises sued for were below usual high water mark, at the time Alabama was admitted into the Union, then the act of Congress, and the patent in pursuance thereof, could give the plaintiffs no title, whether the waters had receded by the labor of man only, or by alluvion; to which the plaintiffs excepted. Whereupon a verdict and judgment were rendered in favor of the defendants, and which judgment was afterwards affirmed by the Supreme Court of the State.’

 

“This question has been heretofore raised before this court in cases from the same State, but they went off upon other points. As now presented, it is the only question necessary to the decision of the case before us, and must, therefore, be decided. And we now enter into its examination with a just sense of its great importance to all the States of the Union, and par­ticularly to the new ones. Although this is the first time we have been called upon to draw the line that separates the sovereignty and jurisdiction of the Government of the Union, and the State Governments, over the subject in controversy, many of the principles which enter into and form the elements of the question have been settled by previous well considered decisions of this court, to which we shall have occasion to refer in the course of this investigation.

 

The counsel for the plaintiffs insisted, in argument, that the United States derived title to that part of Alabama in which the land in controversy lies from the King of Spain; and that they succeeded to all his rights, powers, and jurisdiction over the territory ceded, and therefore hold the land and soil under navigable waters according to the laws and usages of Spain ; and by those laws and usages the rights of a subject to land derived from the crown could not extend beyond high water mark on navigable waters without an express grant; and that all alluvion belonged to the crown, and might be granted by this King, together with all land between high water and the channel of such navigable waters ; and by the compact between the United States and Alabama, on her admission into the Union, it was agreed that the people of Alabama forever disclaimed all right or title to the waste or unappropriated lands lying within the State, and that the same should remain at the sole disposal of the United States ; and that all the navigable waters within the State should forever remain public highways and free to the citizens of that State and the United States, without any tax, duty or impost, or toll therefor, imposed by that State. That by these articles of the compact the land under the navigable waters and the public domain above high water were alike reserved to the United States, and alike subject to be sold by them; and to give any other construction to these compacts would be to yield up to Alabama and the other new States all the public lands within their limits.

 

“We think a proper examination of this subject will show that the United States never held any municipal sovereignty, jurisdiction or right of soil in and to the territory of which Alabama or any of the new States were formed, except for temporary purposes and to execute the trusts created by the acts of the Virginia and Georgia legislatures, and the deeds of cession executed by them to the United States, and the trust created by the treaty with the French Republic of the 30th April, 1803, ceding Louisiana.

 

“All that part of Alabama which lies between the thirty-first and thirty-fifth degree of north latitude was ceded by the State of Georgia to the United States, by deed bearing date the 24th day of April, 1802, which is substantially, in all its principles and stipulations, like the deed of cession executed by Virginia to the United States on the 1st day of March, 1784, by which she ceded to the United States the territory northwest of the river Ohio. Both of these deeds of cession stipulated that all the lands within the territory ceded, and not reserved or appropriated to other purposes, should be considered as a common fund for the use and benefit of all the United States, to be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatever. And the statute passed by Virginia authorizing her delegates to execute this deed, and which is recited in it, authorizes them, in behalf of the State, by a proper deed to convey to the United States, for the benefit of said States, all the right, title and claim, as well of soil as jurisdiction, ‘upon condition that the territory so ceded shall be laid out and formed into States containing a suitable extent of territory, not less than one hundred nor more than one hundred

 

 

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and fifty miles square, or as near thereto as circumstances will admit; and that the States so formed shall be republican States and admitted members of the federal Union, having the same rights of sovereignty, freedom and independence as the other States.’ And the delegates con­clude the deed thus Now know ye, that we, time said Thomas Jefferson, Samuel Hardy, Arthur Lee and James Munroe, by virtue of the power and authority committed to us by the act of the said General Assembly of Virginia before recited, and in the name and for and on behalf of the said Commonwealth, do by these presents convey, transfer, assign and make over unto the United States, in Congress assembled, for the benefit of said States, Virginia inclusive, all right, title and claim, as well of soil as of jurisdiction, which the said Commonwealth hath to the territory or tract of country within the limits of the Virginia charter, situate, lying and being to the north­west of the river Ohio, to and for the uses and purposes, and on the conditions of the said recited act.’

 

And in the deed of cession by Georgia it is expressly stipulated: ‘That the territory thus ceded shall form a State and be admitted as such into the Union as soon as it shall contain sixty thousand free inhabitants, or at an earlier period if Congress shall think it expedient, on the same conditions and restrictions, with the same privileges, and in the same manner as is provided in the ordinance of Congress of the 13th day of July, 1787, for the government of the Northwestern Ter­ritory of the United States, which ordinance shall in all its parts extend to the territory contained in the present act of cession, that article only excepted which forbids slavery.’ The manner in which the new States were to be admitted into the Union, according to the ordinance of 1787, as expressed therein, is as follows : And whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted by its delegates into the Congress of the United States, on an equal footing with the original States in all respects whatever.’ Thus it appears that the stipulations, trusts and conditions are substantially the same in both of these deeds of cession ; and the acts of Congress and of the State Legislatures in relation thereto are founded in time same reasons of policy and interest, with this exception, however—the cession made by Virginia was before the adoption of the Constitution of the United States, and that of Georgia afterwards. Taking the legislative acts of time United States, and the States of Virginia and Georgia, and their deeds of cession to the United States, and giving to each, separately, and to all jointly a fair interpretation, we must come to the conclusion that it was the intention of the parties to invest the United States with the eminent domain of the country ceded, both national and municipal, for the purposes of temporary government, and to hold it in trust for the performance of the stipulations and conditions expressed in the deeds of cession and the legislative acts connected with them. To a correct understanding of the rights, powers and duties of the parties to these contracts, it is necessary to enter into a more minute examination of the rights of eminent domain, and the right to the public lands. When the United States accepted the cession of the territory they took upon themselves being trust to hold the municipal eminent domain for the new States, and to invest them with it, to the same extent in all respects that it was held by the States ceding the territories.

 

“The right which belongs to the society or to the sovereign, of disposing, in case of neces­sity, and for the public safety, of all the wealth contained in the State, is called the eminent domain. It is evident that this right is in certain cases necessary to him who governs, and is consequently a part of the empire or sovereign power. Vat. Law of Nations, section 244. This definition shows that the eminent domain, although a sovereign power, does not include all sove­reign power, and this explains the sense in which it is used in this opinion.  The compact made between the United States and the State of Georgia was sanctioned by the Constitution of the United States, by the 3d section of the 4th article of which it is declared that New States may be admitted by the Congress into this Union ; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by time junction of two or more States or parts of States, without the consent of the Legislatures of the States concerned, as well as of Congress.

 

“When Alabama was admitted into the Union on an equal footing with the original

 

 

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States, she succeeded to all the rights of sovereignty, jurisdiction and eminent domain which Georgia processed at the date of the cession, except so far as this right was diminished by the public lands remaining in the possession and under the control of the United States, for the tem­porary purposes provided for in the deed of cession and the legislative acts connected with it. Nothing remained to the United States, according to the terms of the agreement, but the public lands. And if an express stipulation had been inserted in the agreement granting the municipal right of sovereignty and eminent domain to the United States, such stipulation would have been void and inoperative ; because the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty or eminent domain, within the limits of a State or elsewhere, except in the cases in which it is expressly granted.

 

“By the 16th clause of the 8th section of the 1st article of the Constitution, power is given to Congress ‘to exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may by cession of particular States and the acceptance of Con­gress become the seat of Government of the United States, and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same may be, for the erection of forts, magazines, arsenals, dock yards and other needful buildings.’ Within the District of Columbia and time other places purchased and used for the purposes above men­tioned, the national and municipal powers of government, of every description, are united in the Government of the Union. And these are the only cases, within the United States, in which all the powers of government are united in a single government, except in the cases already mentioned of the temporary territorial governments, and there a local government exists. The right of Alabama and every other new State to exercise all the powers of government which belong to and may be exercised by the original States of the Union, must be admitted and remain unques­tioned, except so far as they are temporarily deprived of control over the public lands.

 

“We will now inquire into the nature and extent of the him in and right of the United States to these lands, and whether that right can in any manner affect or control the decision of the case before us. This right originated in voluntary surrenders made by several of the old States of their waste and unappropriated lands to the United States, under a resolution of the old Congress of the 6th of September, 1780, recommending such surrender and cession to aid in paying the pub­lic debt incurred by the war of the Revolution. The object of all the parties to these contracts and of cession was to convert the land into money for the payment of the debt, and to erect new States over the territory thus ceded ; and as soon as these purposes could be accomplished the power of the United States over these lands, as property, was to cease.

 

“Whenever the United States shall have fully executed these trusts the municipal sove­reignty of the new States will be complete throughout their respective borders, and they and the original States will be upon an equal footing in all respects whatever. We, therefore, think the United States hold the public lands within the new States by force of the deeds of cession and to the statutes connected with them, and not by any municipal sovereignty which it may be sup­posed they possess or have reserved by compact with the new States for that particular purpose. The provision of the Constitution above referred to shows that no such power can be exercised by the United States within a State. Such a power is not only repugnant to the Constitution, but it is inconsistent with the spirit and intention of the deeds of cession. The argument so much relied on by the counsel for the plaintiffs, that the agreement of the people inhabiting the new States, that they forever disclaim all right and title to the waste or unappropriated lands lying within the said territory, and that the same shall be and remain at the sole and entire disposition of the United States,’ cannot operate as a contract between the parties, but is binding as a law. Full power is given to Congress ‘to make all needful rules and regulations respecting the territory or other property of the United States.’ This authorizes the passage of all laws necessary to secure the rights of the United States to the public lands, and to provide for their sale and to protect them from taxation.

 

“And all constitutional laws are binding on the people, in the new States and the old ones, whether they consent to be bound by them or not. Every constitutional act of Congress is

 

 

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passed by the will of the people of the United States, expressed through their representatives on the subject matter of the enactment ; and when so passed it becomes the supreme law of the land, and operates by its own force on the subject matter in whatever State or Territory it may happen to be. The proposition, therefore, that such a law cannot operate upon the subject mat­ter of its enactment, without the express consent of the people of the new State where it may happen to be, contains its own refutation, and requires no farther examination. The propositions submitted to the people of the Alabama territory for their acceptance or rejection, by the act of Congress authorizing them to form a Constitution and State Government for themselves, so far as they related to the public lands within that territory, amounted to nothing more nor less than rules and regulations respecting the sales and disposition of the public lands. The supposed compact relied on by the counsel for the plaintiffs conferred no authority, therefore, on Congress to pass the act granting to the plaintiffs the land in controversy.

And this brings us to the examination of the question whether Alabama is entitled to the shores of the navigable waters, and the soils under them, within her limits. The principal argu­ment relied on against this right is that the United States acquired the land in controversy from the King of Spain. Although there was no direct reference to any particular treaty, we presume the treaty of the 22d of February, 1819, signed at Washington, was the one relied on, and shall so consider the argument. It was insisted that the United States had, under the treaty, suc­ceeded to all the rights and powers of the King of Spain ; and as by the laws and usages of Spain the King had the right to grant to a subject the soil under navigable waters, that therefore the United States had the right to grant the land in controversy, and thereby the plaintiffs acquired a complete title.

 

‘‘ If it were true that the United States acquired the whole of Alabama from Spain, no such consequences would result as those contended for . It cannot be admitted that the King of Spain could, by treaty or otherwise, impart to the United States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the constitution amid laws of its own government, and not according to those of the government ceding it. Vat. Law of Nations b. 1, c. 19, s. 210, 244 , 245, and b. 2, c. 7, s. 80.

 

The United States have never claimed any part of the territory included in the States of Mississippi or Alabama under any treaty with Spain, although she claimed at different periods a considerable portion of the territory in both of those States. By the treaty between the United States and Spain , signed at San Lorenzo el Real, on the 27th of October, 1795, The high contracting parties declare and agree that the line between the United States and East and West Florida shall be designated by a line beginning on the river Mississippi, at the northernmost part of the thirty-first degree of north latitude, which from thence shall be drawn due east to the middle of the Chatahouchee river, ’&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. 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.

 

“Had Spain considered herself as ceding territory, she could not have neglected to stipulate for the property of the inhabitants, a stipulation which every sentiment of justice and of national honor would have demanded, and which the United States would not have refused. But, instead of requiring an article to this effect, she expressly stipulated to withdraw the settlements then within what the treaty admits to be the territory of the United States, and for permission to the settlers to take their property with them. We think this an unequivocal acknowledgment that the occupation of the territory by Spain was wrongful, and we think the opinion thus clearly indicated was supported by the state of facts. It follows, that Spanish grants made after the treaty of peace can have no intrinsic validity.’ Henderson v. Poindexter, 12 Wheat. 535.

 

“Previous to the cession made by Georgia, the United States, by the act of Congress of the

 

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7th of April, 1798, had established the Mississippi territory including the territory west of the Chatahouchee river, to the Mississippi river, above the 31st degree of north latitude, and below the Yazous river, subject to the claim of Georgia to any portion of the territory. And the terri­tory thus erected was subjected to the ordinance of the 13th of July, 1787, for its government, that part of it excepted which prohibited slavery: 1 Story’s Laws, 494. And by the act of the 1st of March, 1817, having first obtained consent of Georgia to make two States instead of one within the ceded territory, Congress authorized the inhabitants of the western part of the Mississippi territory to form for themselves Constitution and State Government, to consist of all the territory included within the following boundaries, to wit: Beginning on the river Mississippi at the point where the southern boundary line of the State of Tennessee strikes the same ; thence east along the said boundary line to the Tennessee river; thence up the same to the mouth of Bear creek ; thence by a direct line, to the northwest corner of Washington county ; thence due south to the Gulf of Mexico ; thence westwardly, including all the islands within six leagues of the shore, to the junction of Pearl river with Lake Borgne ; thence up said river to the thirty-first degree of north latitude ; thence west along said degree of latitude to the Mississippi river thence up the same to the beginning.’ 3 Story’s Laws, 1620. And on the 3d of March, 1817, Congress passed an act declaring,  ‘That all that part of the Mississippi territory which lies within the following boundaries, to wit: Beginning at the point where the line of the thirty-first degree of north latitude intersects the Perdido river ; thence east to the western boundary line of the State of Georgia ; thence along said line to the southern boundary line of the State of Tennessee thence west along said boundary line, to the Tennessee river ; thence up the same to the mouth of Bear creek ; thence by a direct line to the northwest corner of Washington county ; thence due south to the Gulf of Mexico ; thence eastwardly, including all the islands within six leagues of the shore to the Perdido river ; thence up the same to the beginning; shall for the purposes of temporary government, constitute a separate territory and be called Alabama.’

 

"And by the 2d section of the same act it is enacted, That all offices which exist, and all laws which may be in force when this act shall go into effect, shall continue to exist and be in force until otherwise provided by law.’ 3 Story’s Laws, 1634, 1635. And by the 2d article of the compact contained in the ordinance of 1787, which was then in force in the Mississippi terri­tory, among other things, it was provided, that ‘The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury, and of judicial proceedings according to the course of the common law.’ And by the proviso to the 5th section of the act of the 2d of March, 1819, authorizing the People of the Alabama territory to form a Constitution and State Government, it is enacted, That the constitution, when formed, shall be republican, and not repugnant to the ordinance of the 13th of July, 1787, between the States and the people of the territory northwest of the Ohio river, so far as the same  has been extended to the said territory [of Alabama] by the articles of agreement between the United States and the State of Georgia.’ By these successive acts on the part of the United States, the common law has been extended to all the territory within the limits of the State of Alabama, and therefore excluded all other law, Spanish or French.

 

It was after the date of the treaty of the 22d of February, 1819, between the United States and Spain _ but before its ratification, the people of the Alabama territory were authorized to form a Constitution ; and the State was admitted into the Union, according to the boundaries established when the country was erected into a territorial government. But the United States have never admitted, that they derived title from the Spanish Government to any portion of the territory included within the limits of Alabama. Whatever claim Spain may have asserted to the territory above the thirty-first degree of north latitude,  prior to the treaty of the 27th of October, 1795, was abandoned by that treaty, as has been already shown. We will now inquire whether she had any right to territory below the thirty-first degree of north latitude, after the treaty between France and the United States signed at Paris on the 30th of April, 1803 by which Louisiana was ceded to the United States. The legislative and executive departments of the Government have constantly asserted the right of the United States to this portion of the

 

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territory under the 1st article of this treaty; and a series of measures intended to maintain the right have been adopted. Mobile was taken possession of, and erected into a collection district, by act of the 24th of February. 1804, chap. 13, (2 Story’s Laws, 914.) In the year 1810, the President issued his proclamation, directing the Governor of the Orleans territory to take possession of the country, as far as the Perdido, and hold it for the United States. In April, 1812, Congress passed an act to enlarge the limits of Louisiana. This act includes part of the country claimed by Spain as West Florida. And in February, 1813, the President was authorized to occupy and hold all that tract of country called West Florida, which lies west of the river Perdido, not then in the possession of the United States. And these measures have been followed by the erection of Mississippi territory into a State, and the erection of Alabama into a territory, and afterwards into a State, in the year 1819, and extending them both over this territory, could it be doubted that these measures were intended as an assertion of the title of the United States to this country?

 

“In the ease of Foster and Elam v. Neilson, 2 Peters, 253, the right of the United States to this country underwent a very able and thorough investigation. And Chief Justice Marshall, in delivering the opinion of the court, said: ‘After these acts of sovereign power over the territory in dispute, asserting the American construction of the treaty, by which the Government claims it, to maintain the opposite construction in its own courts would certainly be an anomaly in the history and practice of nations. If those departments, which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty ; if the legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied.’ The Chief Justice then discusses the validity of the grant made by the Spanish Government, after the ratification of the treaty between the United States and France, and it is finally rejected on the ground that the country belonged to the United States, and not to Spain, when the giant was made. The same doctrine was maintained by this court in the case of Garcia v. Lee, 12 Peters, 511. These cases establish, beyond controversy, the right of the United States to the whole of this territory, under the treaty with France.

 

“Alabama is, therefore, entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it before she ceded it to the United States. To maintain any other doctrine, is to deny that Alabama has been admitted into the Union on an equal footing with the original States, the constitution, laws, and compact, to the contrary notwithstanding.  But her rights of sovereignty and jurisdiction are not governed by the common law of England as it prevailed in the colonies before the Revolution , but as modified by our own institutions. In the case of Martin and others v. Waddell, 16 Peters, 410, the present Chief Justice, in delivering the opinion of the court, said, When the Revolution took place, the people of each State became themselves sovereign ; and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the Constitution.’ Then to Alabama belong the navigable waters, and soils under them, in controversy in this case, subject to the rights surrendered by the Constitution to the United States ; and no compact that might be made between her and the United States could diminish or enlarge these rights.

 

“The declaration, therefore, contained in the compact entered into between them when Alabama was admitted into the Union, that ‘all navigable waters within the said State shall forever remain public highways, free to the citizens of said State, and of the United States without any tax, duty, impost or toll therefore, imposed by the said State would be void if inconsistent with the Constitution of the United States. But is this provision repugnant to the Constitution? By the 8th  section of the 1st article of the Constitution, power is granted to Congress ‘to regulate commerce with foreign nations, and among the several States.’ If in the exercise of this power, Congress can impose the same restrictions upon the original States, in relation to their navigable waters, as are imposed, by this article of the compact, on the state of Alabama, then this article is a mere regulation of commerce among the several States, according to the Constitution, and, therefore, as binding on the other States as Alabama.

 

 

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“In the case of Gibbons it Ogden, 9 Wheat. 196, after examining the preliminary questions respecting the regulation of commerce with foreign nations, and among the States, as connected with the subject-matter there in controversy, Chief Justice Marshall said: We are now arrived at the inquiry: What is this power?

 

“ ‘ It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case. If as has been always understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single Government having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.’ As the provision of what is called the compact between the United States and the State of Alabama does not, by the above reasoning, exceed the power thereby conceded to Congress over the original States on the same subject, no power or right was, by the compact, intended to be reserved by the United States, nor to be granted to them by Alabama.

 

This supposed compact is, therefore, nothing more than a regulation of commerce, to that extent, among the several States, and can have no controlling influence in the decision of the case before us. This right of eminent domain over the shores and the soils under the navigable waters, for all municipal purposes, belongs exclusively to the States within their respective territorial jurisdictions, and they, and they only, have the constitutional power to exercise it. To give to the United States the right to transfer to a citizen the title to the shores and the soils under the navigable waters, would be placing in their hands a weapon which might be wielded greatly to the injury of State sovereignty, and deprive the States of the power to exercise a numerous and important class of police powers. But in the hands of the States this power can never be used so as to affect the exercise of any national right of eminent domain or jurisdiction with which the United States have been invested by the Constitution. For, although the territorial limits of Alabama have extended all her sovereign power into the sea, it is there, as on the shore, but municipal power, subject to the Constitution of the United States, and the laws which shall be made in pursuance thereof.’

 

“By the proceeding course of reasoning we have arrived at these general conclusions: First, The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the States respectively. Secondly, The new States have the same rights, sovereignty and jurisdiction over this subject as the original States. Thirdly, The right of the United States to the public lands, and the power of Congress to make all needful rules and regulations for the sale and disposition thereof conferred no power to grant to the plaintiffs the land in controversy in this case. The judgment of the Supreme Court of the State of Alabama is, therefore, affirmed."

 

 

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NOTE.

 

 

The “SCHEDULE J,” containing the property sold by order of the Commissioners of the Funded Debt, has been added since the other portion of the book was made up—the sales having taken place since the first portion of the book was printed. The matter should properly have been inserted opposite the respective numbers through the book.

There is also an omission of one grant in “SCHEDULE E OF FIFTY VARA LOTS” lot 1349, which has no sale or grant indicated, should have opposite to it, “December 10, 1849;

Geary, Alcalde; P. Dexter Tiffany; Town Sale.”

 


© 2004 Nancy Pratt Melton



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