
    ESLAVA’S HEIRS vs. BOLLING & BOLLING.
    1. The act of Congress of March 3, 1841, entitled “ an act for the relief of the heirs of Miguel Eslava,” was intended to furnish them and their adversaries, Hunt and Gazzam, with the evidence of a legal title, so that each party might have a standing, prima facie, in court, and thus be enabled to settle the question at issue betweeu them by a judicial determination.
    2. A grant made by the Spanish authorities after the treaty of St. Ildefonso, of lands situated within the territory of Louisiana, is void, although Spain had the actual possession of the province at the time of the grant.
    3. The report of the register and receiver on Eslava’s claim, under the provisions of the act of Congress of March 2, 1829, and the confirmation thereof by the act of March 3, 1841, does not conclude the question of possession as between Eslava’s heirs and Hunt and Gazzam, but leaves it open to be controverted between them.
    4. A void Spanish grant, accompanied by possession, and a survey of the land after the passage of the act of Congress of March 26, 1804, prohibiting such surveys, confer no title whatever on the claimants, when considered in the courts of justice, unless their possession is sufficient to bring them within the act of March 2, 1829, and create no obligation on the United States to recognize their claim.
    5. when a claim to land is confirmed by the government, as a mere matter of favor to the grantee, prorhpted by a sense of moral duty, without any strict legal obligation, Congress has the undoubted right to prescribe the terms on which the title will be conferred, and to declare the effect of the confirmation as against other antagonistic claims.
    
      Erroe. to tbe Circuit Court of Mobile.
    Tried before tbe Hon. LymaN GibboNS.
    This was an action of ejectment, by tbe plaintiff in error, to recover a tract of land situate in Mobile county, known as section No. 5, in township 5 south, of range 1. Tbe defendants were admitted to defend as tenants in possession, under tbe usual consent rule; and having pleaded not guilty, a jury came wbo returned a verdict for them, and judgment was accordingly rendered against tbe lessors of tbe plaintiff for costs.
    Upon tbe trial, a bill of exceptions was sealed by tbe presiding judge, wbicb presents substantially tbe following case: Tbe lessors of tbe plaintiff proved, that they were tbe beirs at law of Miguel Eslava, deceased; and they claimed title under a patent issued by tbe government of tbe United States on tbe 29tb day of June, 1849, to tbe beirs of Miguel Eslava, in pursuance of tbe act of Congress passed tbe 3d day of March 1841, entitled " an act for tbe relief of tbe beirs of Miguel Eslava,” wbicb patent was read to tbe jury. It embraced four thousand, two hundred and thirty-one acres of land designated by metes and bounds according to a survey previously made and approved by tbe United States; and after reciting tbe act of Congress in virtue of wbicb it was issued, and that several sales of land bad been previously made by tbe government wbicb conflicted with tbe survey, among wbicb was tbe sale and patent to Audley H. Gazzam for five hundred and eight acres, of which tbe land in controversy constitutes a part, tbe United States government proceeds “to release, remise and forever quit-claim, unto tbe beirs of Miguel Eslava, and to their beirs, tbe land, &c., subject to any just claim or claims in virtue of any of tbe sales and patents aforesaid, or of any other claim or claizns to all and every part thereof, of all and everjr person or persons, bodies politic or corporate, derived from the United States, or from either tbe British, French or Spanish authorities.”
    Tbe defendants claimed title under a patent issued to Aud-ley H. Gazzam, in virtue of tbe same act under wbicb tbe patent bad issued to tbe lessors of tbe plaintiff, dated tbe 13th day of April, 1841, and containing tbe following reservation: “ With tbe exception and reservation of all tbe rights of tbe Spanish grantees, (meaning tbe grantees intended in tbe act of 3d March, 1841,) their heirs and assigns, under tbe titles claimed by them under tbe Spanish government, to land embraced in claim No. 3, in report No. 2, of tbe register and receiver of tbe land office at St. Stephens, Alabama, acting as commissioners, and bearing date tbe 3d of May, 1832; this exception and reservation being intended to be according to tbe true intent and meaning of said act of 3d March, 1841.”
    Tbe land in dispute was covered by both these patents, and tbe defendants produced in proof mesne conveyances from said Grazzam to them.
    Tbe plaintiffs also gave in evidence, from tbe translated Spanish records on file in tbe Probate Court of Mobile, copies of a petition by Miguel Eslava to tbe Spanish commandant, dated 9 th February, 1803, setting forth bis services to tbe Spanish government, and that finding bis pecuniary condition doubtful “ by reason of tbe cession (retro-cession) of the Province to tbe French Republic, or by a sale which is said to have been made of it to tbe United States of America, so far as tbe ancient limits, that is to say, tbe river Perdido, of this jurisdiction,” &c.; and soliciting a grant of five thousand superficial arpénts, from tbe pine lands belonging to Spain, a league from Mobile on tbe bayou named Durand, situate S. W. in its course, on tbe side of its channel upon Dog river, with a view of making an establishment thereon, binding himself “ to pay tbe expenses of survey, which Joseph Collins, tbe deputy surveyor, will effect, in conformity with tbe accompanying figurative plat,” &c.; and a copy of what purported to be a Spanish concession made upon said application, which sets forth that, In consequence of the death of the assessor of this Intendancy, it is ordered by Don Juan Yen-tura Morales, Intendant pro tern, of this Province, that no petitions on matters relating to lands be sent to his office; and the prayer of the petitioner being just, I grant him the land he asks for, in order that he make, forthwith, the necessary clearings and erect suitable buildings, with the express condition, that, as soon as the office of the Intendant General of this Province is open, he shall have a valuation made of said lands, in conformity with the regulations of that office respecting lands, and shall forward the proceedings therein to the Intendant, for the purpose of obtaining a regular title ; this, in the mean time, serving as such, (dated) Mobile, 25 Feb., 1803. (Signed) Joaquim De OesoNO.”
    Plaintiffs also made proof that Eslava, to whom the above concession purported to have been made, was a commissary under the Spanish government, and keeper of the public stores of the King, and a man of substance and influence in the port of Mobile, where he then resided.
    They further read in evidence a certified transcript of the proceedings had upon said claim, as found in the land office at St. Stephens, embracing the petition of Eslava claiming, before the commissioner, a tract of land situate on Dog river, containing five thousand superficial arpents, by virtue of a permit issued by Joaquim De Orsono,” &c., (being the same above copied;) also the several reports made on said claim; a plat of what purported to be a Spanish survey by Joseph Oollins, deputy surveyor, &e., purporting to have been made by him on the 20th April, 1804, in virtue of an order from Joaquim De Orsono, bearing date the 2d April, 1804; the report of the commissioner, William Crawford, adverse to said claim; a subsequent application, and an unfavorable report ; and, finally, an application by the heirs of Miguel Es-lava to the register and receiver of the land office at St. Stephens, acting as commissioner, under the act of March 2,1829, who report that the applicants and their ancestors have had the land in possession from- 1802 down to the date of their report, and recommend the same for confirmation, inasmuch as they found that the original claimant, or his legal representatives, were inhabitants, as required by the act of the 15th April, 1813, and on that day, and for ten consecutive years previous thereto, had been in possession. This report was forwarded on the 3d of May, 1832, and was not finally acted on until the 3d of March, 1841, when an act of Congress was passed confirming it, which act will be found copied in the opinion of the court.
    The plaintiffs proved a survey by a deputy surveyor of the United States, under an order of survey and location issued from the land office at St. Stephens. This was made after the passage of the act of 1841, and in conformity with the Span-isb plat of survey filed in the land office; and that he had duly returned said survey, which was afterwards approved by the government, as recited in the patent to the heirs of Eslava.
    There was evidence tending to prove that Eslava was in the occupation of the land while Mobile was in possession of the Spanish authorities, but no one proved that he had any actual possession or occupation earlier than 1809 or 1810. The only evidence of a survey was a copy from the land office. No original Spanish survey was shown, nor was the existence of one proved.
    It was admitted by the parties, on the trial in the Circuit Court, that while the claim of the plaintiff was being prosecuted before the government for confirmation, Hunt and Graz-zam contested before Congress the authenticity of their alleged Spanish concession and survey, and the fact of inhabi-tation and possession by Eslava under the act of 1829.
    The defendants relied upon the patent to Grazzam, and conveyances from him, and offered no other evidence of title.
    The plaintiffs asked of the court the following charges to the jury:
    1. That the claim of Eslava, when located, surveyed and patented under the provisions of the act of 1841, by force of said act and patent, and the proceedings under the act of 1829, became a confirmed title, and was, by the proper construction of said,act of 1841 and of the patent issued under the same, a titla^superior and paramount to that vested in Grazzam by virtufe of said act and the patent issued to him under its authority;
    
      % That, if the title so patented to Eslava was not, of itself, afid by its proper construction, superior to that issued to Graz-Sam under the same act, then, as no title was shown by the 'defendants except under the act of 1841, the effect of the records of the claim of Eslava in the land office, and of the report in his favor under the act of 1829, would be to cause the title granted to Eslava by his patent to relate back, and give him a title anterior to the period when the act was passed; and being older in date than the title of Grazzam, it was superior, in point of law, to the title held by the defendants under him;
    3. That the prior claim of Eslava under the Spanish government, bis prior possession, bis claim for confirmation, tbe proceedings bad tbereon, tbe reports of tbe commissioner and register and receiver, tbe confirmation by tbe United States, location, survey, and patent under tbe several acts of Congress relating thereto, would make tbe title in Eslava’s beirs superior to that of Gazzam, derived under the act of 1841 by tbe patent to him, and would create a title paramount to it.
    These several charges the court refused to give, and instructed tbe jury, in substance, that tbe true construction of the act of 1841, and tbe patents issued under it, was, to transfer tbe question of title, as between tbe beirs of Eslava and Gaz-zam, from tbe government of tbe United States to tbe courts for determination: that tbe act transferred to Gazzam all tbe title of tbe United States, and put him in tbe place of tbe United States ; and that standing in tbe shoes of tbe government, be held the title, unless Eslava’s heirs could show that they held a title under some one of the clauses of exception specified in tbe act and in the patent issued to them; that is to say, unless they could show a legal or equitable right under tbe law of nations, or under tbe constitution and laws of tbe United States, or treaties applicable, to said Spanish concession: that tbe title of Eslava, taken by itself, would be a good title, against all tbe world, except as against Gazzam, and those claiming under him; but as to them, it co'idd not avail, unless it could be sustained under one or tbe other-pf tbe exceptions contained in tbe act of 1841: that the Spanish concession was void, being made when Spain had no p^wer to grant tbe land; but if the heirs of Eslava had proved that they came within the provisions of the act of 1829, then; they had tbe better title. 1
    The court also instructed the jury, that, to make out aglpod title under tbe act of 1829, it was incumbent upon Eslavas heirs to prove, that be had been in possession on tbe d¡ay named in tbe act, and for ten consecutive years preceding that date; and if tbe evidence before them did not establish such possession during said length of time, it would not suffice: that to constitute such possession as required by tbe act of 1829, it must be one which was defined, either actual or constructive, with fixed boundaries to tbe tract; that tbe survey on record would be sufficient to fix and define- tbe boug-claries (if they believe said survey was made when it bears date) from the date of said survey; but a mere claim, founded on a Spanish concession, as in this case, prior to the year 1804, (that being the date of the Spanish plat) without any fixed boundaries, or any thing else to separate it from the public domain, and 'without proof of any actual possession or occupation, would not be sufficient to answer the requirements of the act of 1829; that possession might be either actual or constructive ; and constructive possession might be shown, by the fact that .the land was vacant, and that a valid Spanish concession had issued for it at the date mentioned in the concession in evidence; but that the land must be so described in the concession, as to render it capable of being separated from the other public lands, and this the concession in evidence failed so to describe: that possession in fact could be shown by actual entry on the land, or the exercise of control over it, or an entry on a portion of the land and actual possession thereof with a claim upon the whole: that whether there had been this possession held for ten consecutive years prior to the 15th April, 1813, were questions of fact for the jury.
    The plaintiffs requested the court to charge the jury, that the report of the register and receiver of the land office, to the effect that Eslava had been for ten consecutive years in possession before the 15th April, 1813, would, with the confirmation of that report, be sufficient evidence of that fact to support the title of the heirs of Eslava, as to that point; and that it was not necessary for them to make that proof by witnesses on the trial. This charge the court refused; but charged, that, although the report and confirmation would be conclusive against the government, it was not as against Gazzam ; and that to entitle the plaintiffs to prevail, they must prove it by witnesses on the trial.
    To the refusals of the court to charge as asked, and to the charges given, the plaintiffs excepted, and now assign the same for error in this court.
    Geo. N. Stewart and P. HAMILTON, for plaintiffs in error :
    The plaintiffs contend that the act of 1841, on its face, without more, gives them a title paramount to that of Hunt and Gazzam. The act makes the title of Hunt and Gazzam subject to Eslava’s, but it contains no clause making Eslava’s subject to tbeirs. It confirms tbe decision of tbe register and receiver under tbe act of 1829, and directs patents to issue. Its provisions as to tbe effect of tbe patent, and as to its construction, are only what tbe law would imply without their insertion. Tbe United States, being tbe grantee of France ■and Spain, could only convey what it obtained by its grant. 7 Peters 222 ; 5 Wheaton 308.
    Tbe title in fee was, incontestably, in the United States at tbe time of tbe passage of tbe act of 1841; and that act grants to Bslava’s heirs a quit-claim of all tbe right and title of tbe United States, in and to tbe lands claimed by Eslava. This passes tbe whole title, in praesenti, even if tbe location of tbe grant bad not been ascertained, and it wanted identity to make it perfect. Lessieur v. Price, 12 Howard 76.
    But tbe act does more than this: it recognizes all tbe equity which plaintiffs may claim antecedently to that period, under tbe Spanish government, tbe treaty, and constitution and laws of the United States; and adds to this tbe confirmation of tbe United States. This is as full right and title as could be given. It is said that our Spanish title is void, because Spain could not make a grant after she had ceded tbe province. As grants, such titles are void ab initio, and can never ripen into a good title. 13 Smedes & M. 168; 9 Howard 155. But this rule has no application to a case like ours, which is that of an incipient concession accompanied by possession. The possession under Spain was lawful, as she bad the right to dispose of it while she held the territory, though not of tbe title. 2 Howard 60S. If Spain bad retained tbe territory, this possession would have been recognized as giving a claim for a title. Tbe United States has succeeded Spain, and has done what it supposed Spain would have done. That Spain is to be considered as succeeded by tbe United States in this respect, see 2 Howard 374; 7 Peters' 95. Claims of this kind have not been considered or treated as nullities before confirmation. 14 Peters 365; 2 Howard 603; 10 ib. 348.
    Plaintiffs’ claim has its inception and foundation under tbe Spanish government; it was protected by tbe treaty with Prance, and recognized by tbe United States under tbe obligations created by that treaty; it was not a mere gratuity from tbe government, without any claim on its justice. By tbe terms of tbe treaty, tbe United States acquired only tbe “ vacant lands;” this land was not vacant at tbe date of tbe treaty, but was in tbe possession of Eslava. It is immaterial whether Eslava’s title was good, bad or indifferent; it has been recognized and confirmed, and this confirmation must be regarded as a confirmation under tbe treaty. Tbe United States government has always decided for itself, as to what rights should be recognized under tbe treaty, and what not. It has not suffered tbe courts to do this, as to equitable titles at least. Tbe established rule is, that the political power of tbe government has tbe right to decide how it will execute its treaty, and that tbe judicial power shall not defeat its action. 3 Howard 787 ; 9 ib. 155.
    In execution of its treaty duty, tbe United States has enacted a series of laws for tbe benefit of Spanish claimants, aiming to reach and satisfy all classes of just claims. It has made no distinction between perfect and imperfect titles. It has confirmed titles lost by time or accident; and has made donations to those who bad possession only, without claim of title. See what is said on this subject, in 9 Howard 151; 2 ib. 603; 4 Peters 512; 12 ib 436; 14 ib. 365; 12 Wheat. 601. Under these enactments, Eslava’s claim was pressed upon the government at an early day, and constantly renewed at every opportunity until its final recognition and confirmation. Plaintiff’s attitude was that of petitioners; they were obliged to wait the delays of the government, as they could not enforce their claim at pleasure. It is now no objection to the claim, that it was not admitted at an earlier day; it was not rejected, but only “suspended and protected ” till finally confirmed. 2 How. 603.
    The act of Congress of 1829 was induced by the treaty, and was passed for the benefit of Spanish subjects, (not of Amer ican citizens.) In defining the requisites to obtain a confirmation under that act, the whole consideration of the grant was placed on the ground of meritorious acts advantageous to Spain, viz: ten years’ possession and a residence under the Spanish government.
    If this, then, was a confirmation under the treaty, the title, when perfected, relates back to its incipiency. 11 Howard 552; 12 ib. 77; 9 ib. 335; 10 ib. 372; 4 ib. 462; 18 ib. 244; 1 Peters 655; 13 Smedes & M. 161. But it is not necessary that our title should relate back so far, in order to render it paramount to that of Hunt and G-azzam, which was created by the act of 1841, and had no antecedent right., If our confirmation only relates back to the filing of our petition under the act of 1829, our title will be superior to theirs.
    The confirmation of Eslava’s title made and reported by the commissioners in 1832, and expressly confirmed by the act of 1841, is conclusive, and cannot be overthrown by the courts; nor can it be inquired into, avoided or vacated. Neither can it be shown in any court that the facts did not exist which the act establishes, nor that the right did not exist. The courts have no jurisdiction to impeach that act of the sovereign power. 9 Howard 167; 10 ib. 370; 3 ib. 750; 13 Smedes & M. 161.
    It is argued, that the effect of this act is only to refer the question of title to the courts for decision, and that therefore all the decisions under the act of 1824 apply to this case. This would be true, if our claim or title had not already been investigated and confirmed by the government itself; while, under the act of 1824, the very question to be decided was, whether the claimant was entitled or not to a confirmation. This question has already been decided in our favor, and by the highest authority.
    JohN A. Campbell, contra:
    
    The act of Congress of March 3d, 1841, was passed with the view of putting an end to the controversy between Es-lava’s heirs and Hunt and G-azzam. That act confirms Esla-va’s title, with all such legal and equitable rights as may exist under the law of nations, or under the constitution and laws of the United States, or treaties applicable to the said grants, under and by virtue of said Spanish grants.
    The act of May 26, 1824, (4 U. S. Statutes at large 52,) was revived, and extended to Louisiana and other States in 1844 (5 ib. 676.) The second section of the act of 1824 contains the grounds upon which an incomplete title could be submitted to the court, and receive confirmation. The final decree was “ to settle and determine tbe question of validity of tbe title, according to tbe laws of nations, tbe stipulations of any treaty and proceedings under tbe same, tbe several acts of Congress in relation thereto, and tbe laws and ordinances of tbe government from wbicb it is alleged to have been derived; and all other questions properly arising between tbe claimants and tbe United States.” Tbe cases wbicb bave been decided under tbis statute, are directly applicable to tbe present case. Tbe position of Hunt and G-azzam is that of claimants from tbe United States, burdened with tbe maintenance of all sucb legal and equitable claims as Eslava might bave under tbe laws of nations, treaties, or laws of tbe Union.
    1. As to tbe laws of nations: Tbe Supreme Court has decided, that no claimant has any just title, under tbe laws of nations, to any parcel of tbe land in Louisiana conceded by Spain after tbe treaty of St. Ildefonso, although before possession was given by tbe Spanish government to tbe French or American authorities. 9 Howard 127; 10 ib. 609; 12 ib. 47; 13 ib. 9. The Spanish grant is, therefore, void under tbe laws of nations.
    2. Tbe Spanish grant is void for want of compliance with its conditions. Tbe commandant recites that be is forbidden to make concessions, but be grants an occupancy permit, and imposes as a condition that Eslava shall cause an appraisement to be made, and titles in due form to be given, 11 Howard 96; 12 ib. 433; 13 ib. 261.
    3. Tbe Spanish concession was void for uncertainty. There are no words by wbicb its location can be identified. 11 Howard 63; 13 ib. 261; 16 Peters 156.
    4. Tbe survey cannot be referred to, for tbe purpose of identifying it. That was void by tbe act of Congress of March 26, 1804. 11 Peters 63,115; 13 Howard 261.
    5. Tbe question then arises, was there any legal or equitable right in Eslava arising under any law of tbe United States. Tbe statutes in relation to Spanish concessions contemplate the action of Congress on specific reports in which tbe grantee is recommended to tbe favorable consideration of Congress. Tbis was tbe fact in relation to tbe acts of 1812, 1819,1822, 1827, and 1829. 2 D. S. Statutes at large 713; 3 ib. 528, 699, 707; 4 ib. 239. Under none of these acts, prior to 1829, did Eslava obtain a favorable report. His claim was rejected under each one of the previous acts. The act of 1829 allowed claimants of a single class to file their claims. Under the third section of the act, the claimant must show: 1. That, on the 15th day of April, 1813, he was a resident of the country between the Perdido and Pearl rivers, in the Spanish territory; 2. That, prior to that day, he had held, for ten consecutive years, a tract of land not claimed by any other person; 3. That he had possession at the date of the act. The register and-receiver reported favorably on the claim to Congress, according to the act. Congress did not give an absolute, but a qualified confirmation: a confirmation of the rights under the grant and law. Here there is an equitable right under the law, provided the facts can be established upon which the claim rests. Hunt and Grazzam contested this right. The possession required by the act is obviously an actual possession, pedis possessio. The claim is acknowledged in consequence of a “ ten years’ consecutive possession,” ten years being the ordinary Spanish prescription. Such a possession implies occupancy, and visible, notorious works of ownership, showing that the party controls the property under claim. The definition of such a possession, as given in the Partidos, always includes the idea of improvement, or visible dominion. 1 Part. 394. The Spanish regulations always exacted improvements, as a condition of title. 11 Howard 63; Tillinghast’s Adams 488 et seq.
    
   CHILTON, C. J.

'This was an action of ejectment, brought by the heirs of Miguel Eslava, to recover certain lands claimed by them under a patent from the government of the United States, issued in pursuance of an act of Congress approved the 3d of March, 1841. The defendants claim title to a portion of the land under a patent from the same source, issued in pursuance of the same act, to Audley H. Grazzam, and which has vested in them by mesne conveyance. It is apparent that the question, as to which of these alleged titles shall prevail, depends upon the construction to be placed upon the act of Congress under which they respectively accrued.

This act is in the following words: “ Be it enacted, &c., That tbe decision of tbe register and receiver of tbe land office for tbe district of St. Stephens, in tbe State of Alabama, as contained in tbeir report bearing date tbe 3d day of May, 1832, confirming a claim of tbe beirs of Miguel Eslava, deceased, (being claim number 3, in report number 2,) and made in pursuance of tbe act of Congress approved tbe 2d day of March, 1829, entitled “ an act confirming tbe reports of tbe register and receiver for tbe district of St. Stephens, in tbe State of Alabama, and for other purposes,” be, and tbe same is hereby confirmed: Provided, That tbe confirmation provided to be made by this act, shall amount only to a relinquishment, forever, on tbe part of tbe United States, of all right and title whatever to tbe land so confirmed or granted; Provided, also, That tbe survey and location hereafter to be made of said claims, which are hereby confirmed, shall be made in conformity with the original Spanish title papers, unless tbe surveys of said claims be found variant from tbe grants, according to the usages of the Spanish government; in which case, tbe grants are to govern.

Sec. 2. And be it further enacted, &c., That after the proper location of tbe claims hereby confirmed, it shall be the duty of the commissioner of the general land office, to issue patents for the same, containing a reservation of the rights of all third persons: Provided, That the said patents shall be construed to convey to the claimants all such legal and equitable rights only, as may exist under the laws of nations, or under the constitution and laws of the United States, or treaties applicable to the said grants, under and by virtue of the said Spanish grants; and it shall be also the duty of the commissioner of the general land office, forthwith to issue patents to Jonathan Hunt and Audley H. Gazzam, for all such portion of said lands for which they now hold receipts issued by the receiver of the land office at St. Stephens, in the State of Alabama; which patents shall contain an exception and reservation of all the rights of the Spanish grantees, their heirs or assigns, under the titles claimed by them under the Spanish government : Provided, That the patents issued to the said Hunt and Gazzam, shall be construed to convey to them all such rights only as are not inconsistent with the legal or equitable rights of the Spanish grant ees, their heirs or assigns, under the laws of nations, or under tbe constitution and laws of tbe United States, or treaties applicable to said grants, under and by virtue of tbe Spanish grants hereby confirmed.”

Tbe better to comprehend tbe true intent and meaning of tbe foregoing enactment, it is proper that we briefly recur to tbe circumstances which gave rise to it.

Miguel Eslava, tbe father of tbe lessors of tbe plaintiff, bolding tbe office of military store-keeper under tbe Spanish government, at the port of Mobile, in consideration of bis services rendered tbe king of Spain, and in anticipation of a treaty, by which tbe province in which be resided was to be transferred to tbe French Kepublic, or to tbe United States, solicited, by petition to tbe Spanish commandant, of tbe Spanish government five thousand superficial arpents of land on bayou Durand, a league from Mobile.

In consequence of tbe death of tbe assessor of tbe inten-dancy, tbe land office was closed, but a temporary concession was made, to enable tbe petitioner to make the necessary clearings and erect suitable buildings; but the grant was upon tbe express' condition, that, as soon as tbe office of tbe inten-dant general of tbe province should be open, tbe petitioner should have a valuation of said lands made in conformity with tbe regulations of that office respecting lands, and should forward tbe proceedings to tbe superintendent for tbe purpose of obtaining a regular title. This was done on tbe 25th day of February, 1803.

In 1814, Eslava presented bis claim before tbe United States commissioner, predicated upon this concession, and what purported to be a survey by Joseph Collins, tbe deputy surveyor of tbe port of Mobile, but it was rejected. (3 Amer. St. Papers 14.) It was again presented by him in 1827, but again rejected. (5 ib. 124.) Finally, be having died, bis heirs presented tbe claim before the register and receiver of tbe land office at St. Stephens, under tbe third section of tbe act of Congress of tbe 2d of March, 1829. This section provides: “ That every person or persons, or tbe legal representatives of such person or persons, who, on tbe 15th day of April, 1813, bad, for ten consecutive years prior to that day, been in possession of a tract of land, not claimed by any other person, and not exceeding tbe quantity claimed in one league square; and who were, on that day, resident in that part of Louisiana situate east of Pearl river and west of the Perdido, and below the thirty-first degree of nortl| latitude, and had still possession of such tract of land, shall be authorized to file their claim, in the manner required in other cases, before the said register and receiver for their decision thereon: and it shall be the duty of the said register and receiver, to hear and record the evidence offered to support such claim; and if the same shall be established by sufficient proof, agreeably to the provisions of this section, the said officers shall, in their report, recommend the confirmation of the right to such claim as in other cases,” &c. 4 U. S. Stat. at large 358-9.

The register and receiver, having investigated the claim of the heirs of Eslava, reported favorably upon it, as falling within the provisions of the act above recited, and their report was forwarded to the general land office on the 3d of May, 1832. See 5 Amer. St. Papers 124.

In the meantime, Jonathan Hunt and Audley H. Gazzam had made entries embracing portions of the land supposed to be claimed by the heirs of Eslava, and when the report of the register and receiver was laid before Congress for final action and confirmation, they contested their right before Congress; and to settle this controversy, the act under consideration was passed.

The plaintiffs say that their title, as reported by the register and receiver at St. Stephens, for confirmation, was confirmed ; and that thereby the fee, which up to that time was in the United States, immediately became vested in them, and that the act makes the title of Hunt and Gazzam subservient to theirs.

It is true, the first section of the act does confirm the report of these officers, and had it stopped there, this difficulty would hardly have arisen; for there could have been no doubt of the intention of Congress to confer the title which was in the United States absolutely on the plaintiffs, subject to the limitations contained in the provisoes. And we may venture to assert, that if the controversy between the parties before Congress involved merely a question of boundary, the act would have stopped here, or it would merely have superadded, that Hunt and Gazzam should have a patent for so much of the land claimed by them as was not embraced in tbe claim of Esla-va’s beirs. But it does not stop here. On tbe contrary, it contains other provisions, which, so far as they explain and qualify the first section, must be regarded by us; for “ a law is tbe best expositor of itself; and every part of an act is to be taken into view, for tbe purpose of discovering the mind of tbe legislature.” Pennington v. Coxe, 2 Cranch 52; ib. 358; 1 Brock. C. C. R. 162.

Tbe second section provides, that after tbe proper location of tbe claims thereby confirmed, tbe commissioner of tbe general land office shall issue patents for tbe same, containing a reservation of tbe rights of third persons; and it then declares what shall be tbe legal effect of these patents, namely: that they shall be construed to convey to the claimants “ all such legal and equitable rights only as may exist under tbe laws of nations, or under tbe constitution and laws of tbe United States, or treaties applicable to said grants, under and by virtue of said Spanish grants.” It then proceeds to make provision for arming Hunt and Gazzam with the evidence of legal title to tbe lands claimed by them. Patents are to issue to them for portions of tbe same land, but these patents are to contain an exception and reservation of all tbe rights claimed by tbe Spanish grantees, their beirs and assigns, under tbe titles claimed by them under tbe Spanish government; that is to say, these patents to Hunt and Gazzam “shall be construed to convey to them all such rights only as are not inconsistent with tbe legal or equitable rights of tbe Spanish grantees, their beirs or assigns, under the laws of nations, or under tbe constitution and laws of tbe United States, or treaties applicable to said grants, under and by virtue of tbe Spanish grants hereby confirmed.”

If tbe effect of this act be, to confer the land upon Eslava’s beirs, irrespective of tbe fairness or validity of their claim derived under tbe Spanish government, then, all that is said in tbe second section about tbe patents to Hunt and Gazzam, is useless and nugatory. So also, if Congress, by this act of confirmation, designed to create an equity which did not previously exist in favor of Eslava, under tbe laws of nations, or treaties, or constitution and laws of tbe United States, then the act is repugnant and suicidal, in conferring on Hunt and Gazzam a title which this equity was designed to over-ride and destroy. But the act is susceptible of a construction which gives effect to all its provisions, and renders it neither repugnant nor absurd. It was designed to meet and provide for every phase which the controversy before Congress had assumed. Eslava’s heirs contended that they had a claim upon the government in virtue of their Spanish concession; and if this, under the treaties with France and Spain, and the laws of nations, imposed no obligation on this government, then that their claim fell within the third section of the act of 1829. The claim upon all these grounds being contested by Hunt and Gazzam, who claimed to have purchased a portion of the land from the United States, Congress, without undertaking to decide upon the questions at issue between the parties, determined to furnish them both with the evidence of a legal title, so that each might have a standing, prima facie, in court, and thus be enabled to settle the difficulty by a judicial determination. In order, however, to protect the rights of the Spanish claimants, and to confer upon them all the benefits which this government, in the exercise of its political power, was accustomed to secure to those who held under imperfect or equitable titles, certain rules were prescribed by which the court, in “ construing” the patents, should be governed ; that is to say, the patent to Eslava’s heirs shall be construed to convey “ all such legal and equitable rights only” as may exist under and by virtue of said Spanish grants: 1st. Under the laws of nations; 2d. Under the constitution and laws of the United States; 3d. Under treaties applicable to said grants. On the other hand, the patents to Hunt and Gazzam shall be construed to convey to them all such rights only as are not inconsistent with the legal or equitable rights of the Spanish grantees, under and by virtue of the Spanish grants confirmed by the act, existing under the laws of nations, the constitution and laws of the United States, and treaties applicable to said grants.

Let us briefly consider what right the heirs of Eslava have, in virtue of their alleged Spanish concession, under the laws of nations.

In the United States v. Reynes, 9 How. 127, it was held, that a grant from the Spanish authorities, after the treaty of St. Ildefenso, although at tbe time of tbe grant, and for several years afterwards, Spain bad tbe actual occupation of tbe province in wbicb tbe land granted was situate, was void. It was also further beld, that sucb grant was not protected by tbe treaty of Paris between the United States and Prance, of tbe 30th September, 1803, stipulating for tbe protection of tbe citizens of Louisiana in tbe free enjoyment of their liberty and property, as tbe term property,” in tbe correct acceptation, was applicable alone to possessions or rights founded in justice and good faith, and based upon authority competent to their creation. Tbe doctrine announced by this case, has been repeatedly re-asserted by tbe same court. United States v. D’Auterive et al., 10 How. 609; Montault et al. v. The United States, 12 ib. 47; The United States v. Pillerin, 13 ib. 9. These decisions very clearly show, that tbe grant from Orsono to Eslava was void; and being void for this reason, it is unnecessary that we examine tbe other objections raised to it, of uncertainty in respect of tbe land granted, and tbe failure of Eslava to comply with the conditions upon wbicb be was to have a title in form by tbe Spanish government.

As tbe act of 1841 gives to tbe claim of tbe plaintiffs a qualified confirmation only, ripening into a legal, available title any right, legal or equitable, wbicb accrued to them in virtue of their Spanish grant, or possession beld under it, under tbe laws of nations, treaties, or constitution and laws of tbe United States; and having shown that, according to tbe repeated decisions of tbe Supreme Court of tbe United States, tbe grant was void, and conferred no right under tbe laws of nations or tbe treaties, let us turn to tbe last consideration : whether tbe laws of tbe United States confer a title upon them, otherwise than as given in charge by tbe Circuit Court, whose decision we are revising.

Tbe plaintiffs rely upon tbe act of 2d March, 1829. Their claim under the previous laws passed for tbe benefit of persons resident in tbe ceded territory, bad been, up to that time, rejected. In order to bring them within that act, three things are necessary: 1. Residence in that part of tbe country east of Pearl and west of Perdido rivers, and below tbe thirty-first degree of north latitude, on the 15th day of April, A. D. 1813; 2. Possession for ten consecutive years prior to that date; 8. Possession of tbe tract claimed on tbe 2d March, 1829, tbe date of tbe passage of tbe act. 4 Stat. at large, 358.

As to whether tbe possession required by this act must be an actual, pedis possessio, or may be constructive merely, is not properly before us for decision; for tbe court below charged tbe jury that either was sufficient, so that it was defined in such manner as to render it practicable to separate tbe tract so passed and claimed from tbe public domain. But it is insisted on tbe part of tbe plaintiffs, that their claim having been submitted before tbe register and receiver, tbe proof having been taken, and a decision predicated on that proof made by them in their favor, the action of these accredited officers is binding upon tbe government; and to this point we are cited to Bissell v. Penrose, 8 How. 339, and Lytle v. The State of Arkansas, 9 ib. 333. In tbe first case it is said: “ In cases where tbe report recommends tbe confirmation of tbe claim according to tbe survey, tbe effect of tbe confirmation under tbe act of 1836 is, probably, to conclude tbe government; so that an error in tbe private survey cannot be corrected on a re-survey of tbe tractbut it is added : “ when recommended in tbe general form of tbe present case, any such error may be corrected, agreeably to tbe intention of Congress, in declaring, as they did in the act of 1806, that these surveys should be regarded only as private surveys;” thus showing that where tbe report is specific, and is confirmed, then tbe confirmation becomes specific, and tbe government is concluded by tbe specifications contained in it; but it is very certain that Congress was, not bound to confirm tbe report, as to each claim recommended for its confirmation by these officers. Tbe numerous acts which have been passed upon tbe subject of organizing such boards, seem to contemplate their action as furnishing a basis for tbe final action of Congress. If their action was final, then tbe confirmation of tbe reports by Congress was a matter of supererogation. In tbe case of Lytle v. Tbe State of Arkansas, tbe determination of tbe register and receiver of tbe land office, in tbe matter of a contested pre-emption right, was held final, for tbe reason that Congress bad invested them with tbe power of deciding, and allowed no appeal; a very different case from tbe one before ns, where the officers were required to prepare abstracts of their reports, embracing the substance of the proof, and transmit them to the proper department, that the same might be laid before Congress, “for their determination thereon.” 2 Stat.,at large 716 § 7; 3 ib. 528, 699, 707; 4 ib. 239.

The report is only conclusive, so far as made so by the act of confirmation, and this act, as we have endeavored to show, limits and restricts the effect of the confirmation, and the patent to be issued thereupon, to a conveyance of such legal or equitable right as existed under the grant and the laws and treaties applicable to it. All the title which the United States held, and which was not inconsistent with the legal or equitable title of the plaintiffs, as above limited and restricted, to the land for which Hunt and Grazzam held the receiver’s receipts, was vested by the act and patents in the latter. We think, therefore, that the question of possession was not concluded by the act and confirmation, but was open to be controverted by the parties.

The construction which we feel constrained to put upon this act of confirmation, distinguishes this case from the numerous decisions predicated upon the doctrine of relation. It is certainly true, that the United States, in the exercise of their political power, could recognize, and often have recognized as valid, claims which, stricti juris, create no obligation upon the government, and which, when confirmed, may relate back to their inception. But the act of 1841 was not designed to give validity to that which possessed none before; but merely, by a confirmation of the report, and the issue of a patent, to vest in the plaintiffs a legal title, the efficacy of which as such was to depend upon the existence of their legal or equitable rights, growing out of the Spanish concession to their ancestor, as recognized by the laws of nations, the treaties, or laws and constitution of the United States. What these legal or equitable rights are, Congress did not attempt to define; nor were they in any wise affected by the act. The court below, therefore, very properly went into an inquiry concerning them ; and guided by the decisions of the Supreme Court in analogous cases, we are of opinion, that the charges of the circuit judge were fully as favorable for the plaintiffs as the law will warrant.

We have duly considered tbe argument of the counsel for the plaintiffs, which endeavors to deduce a right to the land in controversy, or to enforce an equitable obligation on the United States to confer it upon the plaintiffs, from the void grant of Eslava, his survey defining the limits of such grant, and his possession under it. Without stopping to inquire whether these did not furnish plausible grounds for a resort to the political power of the government, we think it quite clear, that when considered in the courts of justice, if the possession does not bring the plaintiffs within the act of 1829, the void grant, and the survey made of the land supposed to be granted after the passage of the act of 26 March, 1804, prohibiting such survey under a heavy penalty, (2 Statutes at large 289,) and the possession short of ten years, conferred no title whatever, and created no obligation upon the United States to recognize their claim.

If the possession by Spain of the ceded province was wrongful after October, 1800, and her officers had no authority to make grants, or to dispose of the public domain, so as to bind the United States, as was held in 9 How. 127, and several subsequent cases, we are at a loss to perceive how the prohibited survey of the 20th April, 1804, or the possession of Eslava, either actual or constructive, could confer any right upon the claimants, aside from legislation on the part of the United States. True, if this government chooses to recognize such claim as valid, by its specific action in the confirmation of favorable reports made by its officers charged with their investigation, the title passes from the government to the claimants, and no one has a right to controvert it with them. But as the United States is in such cases the source of title, and confers it upon the claimants more as a matter of favor, prompted by a sense of moral duty, than as fulfilling a strict legal obligation, Congress has the unquestioned right to prescribe the terms upon which the title will be conferred, and to declare the effect of the confirmation as it respects other antagonistic claims. In other words, as was decided in Bagnell et al. v. Broderick, 13 Peters 436-450, “Congress has the sole power to declare the dignity and effect of titles emanating from the United States.” See, also, Hall et al. v. Doe ex dem. Root, 19 Ala. Rep. 378-394. In tbe case before ns, Congress has declared, in no equivocal terms, wbat shall be the effect of the titles conferred upon the parties respectively.

The vice of the plaintiffs’ argument, which attempts to deduce an estoppel against the government, as binding upon those claiming under it, from the confirmation of the report, the relinquishment of title to the plaintiffs, and the issue of a patent to them, consists in its being predicated upon a partial view of the act of 1841, and not upon a consideration of the whole act. It proceeds upon the idea of an absolute confirmation and investiture of title, unqualified and unrestricted by the second section of the act, except as respects the location of the land. But this, we have seen, is not the proper construction of the statute. The government may well be estopped from denying that either Bslava’s heirs or Hunt and Grazzam have a title to the land embraced in the receipts of the receiver given to the latter, (H. and Gr.) Congress has declared that patents shall issue to both for the same land, and both are owners against the government; whilst, as between themselves, the title in the one or the other depends upon the existence of the legal or equitable rights of the plaintiffs, “under the laws of nations, the constitution and laws of the United States, or treaties applicable to said grants, under and by virtue of the said Spanish grants.” If the right in Hunt and Grazzam be not “inconsistent” with the “legal or equitable rights ” of the plaintiffs, as above enumerated, then their title is to prevail.

It is quite manifest, we think, that Congress was legislating with respect to the right or title, and not merely with respect to the identity of the land. The language of this act is not unlike that employed in other statutes authorizing claimants to test the validity of their claims by judicial investigation, so far as the inquiry into the character of the title is concerned.

By the second section of the act of 1824, since revived and extended, the District Court was to settle, by final decree, the validity of the title, “ according to the law of nations, the stipulations of any treaty, and the proceedings under the same, the several acts of Congress in relation thereto, and the laws and ordinances of the government from which it (the title) is alleged to have been derived,” &c. 4 Stat. at large 53; ib. 676. This analogy to the previous legislation serves to strengthen our conclusion, that, in “ construing” these patents, we must look beyond the qualified confirmation, to ascertain the plaintiff’s rights; and at the same time shows, that the numerous decisions under the former acts are not inapplicable to this case, but furnish us guides on which we may safely rely.

After the best consideration which we have be en enabled to bestow upon this case, we have unanimously arrived at the conclusion, that there was no error committed by the Circuit Court prejudicial to the plaintiffs, and the judgment is consequently affirmed.  