66 opinion officially given, of Leonardo del Monte, the assessor general of Cuba. The judge below, at page 699, says that the opinion of the fiscal of West Florida is, " from his education as a lawyer, and the trust reposed in him, entitled to the greatest weight." The reasons given by the judge for respecting the opinion of the fiscal, whom he calls" a high responsible Spanish officer, acting officially," apply, with greater force, to the opinion of a lawyer holding the much higher office of assessor general of Cuba. There is a very imperfect translation of the latter on page 52. It commences with an assertion that the ownership of the lands has been legally transferred to Forbes & Co. “ par titulo honoroso." This word, "honoroso," is an error of the press for "honroso,” “ just,” “equitable," "honest;" and the assessor general means to say that Forbes & Co. had acquired the lands by a just title, and not, as in the translation on page 52, a "titulo oneroso," a burthensome or troublesome title, which is nonsense. In the copy, from which that translation was made, the letter h, in the word honroso, may have been omitted for as the h is never sounded in the Spanish language, except by the common people in Andalusia, it is often omitted in writing, and a careless transcriber might easily write onroso or oneroso in place of honroso. We have, then, the opinion of "a high and responsible Spanish officer, acting officially," and before the cession to the United States was contemplated, that the ownership of the lands was legally transferred to Forbes & Co., by a just title, in pursuance of a competent permission from Governor Folch, and that the latter had afterwards given deeds of confirmation to the purchasers. Surely this opinion is entitled" to the greatest weight," for the assessor general of Cuba must be more competent to deter mine a question depending exclusively upon Spanish laws and usages, than the fiscal of West Florida, or any judge in a foreign country. There is another consideration which deserves attention. The "decree," made by the captain general on that occasion (see page 53) was not a ministerial, but a judicial act; the matter is res adjudicata. The functions of the captain general are partly judicial. He is president of the royal audience, which is the highest court in the island, and judge of appeals of the court of Consulado. In cases where he is attended by the assessor general and a notary, he is considered as acting in a judicial capacity. Had he on this occasion been acting in his political capacity, his permission would have been countersigned by the secretary of the captain generalcy. With respect to the opinion of the fiscal of West Florida (Record, pages 207 and 699) it will be observed that it relates only to vacant land; and he assigns as one of his reasons that the Indians did not disturb a former settler named Zamora, which shows that the Indians did not claim the land then in question, and that if they had claimed it, his opinion would have been different. He does not assert that all the lands of Florida were realengas (royal.) The official acts of Governor Folch in relation to the sale, were of a judicial nature. By referring to Solorzano's Politica Indiana, lib. 2, chap. 29, n. 42, 43, 44, it will be found that the intervention of a judge is necessary in the sale of property by Indians. Solorzano cites for this the cedulas of the years 1540, 1571 and 1572, tom. 4 of the cedulas, &c. page 354, et seq., law 17, tit. 1, lib. 6, Recop. de las Indias; but this last citation is an error of the press, and should be law 27. See also Alvarez's Inst. b. 1, tit. 23. The Spanish government was bound by its knowledge of, and consent to, the purchase; and, by the Spanish law of prescription, the purchasers acquired a valid title by an uninterrupted possession, in good faith, of upwards of ten years, which period is sufficient when the parties are present, and the king was always present by his officers. That the purchasers had possession, is proved on page 623 of the Record. Admitting that the Indians had no right to sell, Governor Folch's deeds of confirmation, have the same operation that deeds of confirmation have by the English law. They come precisely within the definition, and contain the very technical words of the English deed. "Confirmation is," (according to the Termes de la Ley, which definition Powell prefers to the one given by Lord Coke,) "when one who hath a right to any lands or tenements makes a deed to another who hath the possession, or some estate, with these words, ratificasse, approbasse, confirmasse, with intent to enlarge his estate, or make his possession perfect, and not defeasible by him that makes the confirmation, or by any other that may have his right." See Wood's Conveyancing, by Powell, vol. 2, page 245. If there had been, however, neither the ratification of the Indian sales by Governor Folch, nor the consent to the alienation to the present petitioners by the captain general, the title would have been perfect from the consent previously given by the Governors General Don Manuel Gayoso de Lemos, Don Manuel de Salcedo, and the Marquis of Casa Calvo, all contained in the Record. These high officers of the Spanish crown all concurred in this mode of indemnification, and recommended it. In every point of view in which this case can be presented, under the treaty and laws of Spain, the previous adjudications of the supreme court, the principles of equity, justice and good faith, this title ought to be confirmed. It never was, and never would have been, questioned if the "Territories had remained under the dominion of his catholic majesty." This is the rule given in the treaty by which it is to be decided. The magnitude of the grant, rather than the principle involved, has occasioned all the resistance and delay in the confirmation of the title. It has, indeed, been suggested that by far the larger part of these lands has passed from the Spanish grantees into the hands of our own citizens; and, therefore, it would be insinuated, neither the national faith or honour, nor the peculiar condition of the original proprietors, can be invoked in favour of these claims. We will not stop to inquire into the fact. It is utterly unimportant. The present holders succeed to the rights of their predecessors. Human justice is never perfect. Often it cannot be done to the party: frequently not even to his heirs. When the public debt was funded, few of those who lost by the depreciation gained by the advance. When a chancery suit is ended, it is sometimes the grand-children of the original parties who obtain, too late, a small portion of their patrimony. INDEX. Agriculture, encouraged, i. 410 Alagon, duke of. See Duke of Alagon. Alcaldes forbidden to own houses or lands, not allowed to raise grain or trade, ii. superior how appointed, ii. 57 superior, to preside at the board of mu- Alcadia, in Majorca, settlement of, ii. 143 who bound to furnish, i. 3 and Natchez, allowed to depart, ii. order against making grants to, ii. 401 Anglo-Americans, order against their ob- established at Baton Rouge, Mobile and Annuity, (censos,) defined, i. 145 when allowed, i. 308 to 318 in Coahuila and Texas, i. 499 captain general to the board of war, ii. in matters relating to the municipal Applications for offices regulated, ii. 33 duties of, i. 264 Arceneaux, Pierre, report of commissioners Arms, prohibited and their use punished, i. Army, intendants established, ii. 70 may be given before or after marriage, not to exceed one tenth of husband's to whom they appertain after dissolu- penalty, ib Buying & Selling (vide Sale) i. 185 to 200 Cabelleria, of land, definition of, ii. 48 of persons in prescriptions, ib not to sow or raise wheat or corn, ii. Captain general, powers of, i. 367 33 duties of, ii. 37 Auditors, (oidores,) forbidden to own houses not to sow or raise wheat or corn, ii. 33 governor Garcia to S. F. i. 595 colonization law of 1823, respecting, i. decree of sovereign congress of 11 April, decree of the executive, ib register to be made of documents relat- provision for the colonization of five Ayuntamientos established, i. 416 rules for formation of, i. 418 duties of, i. 491 Buil, when accused entitled to, i. 336 Banditti, punished, i. 255 Baron de Bastrop, commission of, i. 595 Governor Garcia to, i. 596 to James Cummings, ib Bastard, disability of, i. 115 to exercise jurisdiction in matters of Caso de corte, privilege of, who is entitled Castile, laws of, when to be observed, ii. 17 Cedula, what, i. 351 Census, how to be kept, ii. 32 of Louisiana to the United States, ii. of Florida to the United States, ii. 208 Challenge to fight a duel, i. 228 to be recovered by royal officers, ii. 97 i. 64 natural, how legitimated, i. 65 Choctaw Indians, extract of treaty between Cindad Roderigo, settlement of, 135 its nature and requisites, i. ib. effects of, i. 280 Cities, various regulations relating to, ii. 42 to 55 Citizens of Coahuila & Texas, certain per- sons made, i. 481, 493, 497, 516, 530 Bastrop's claim on Washita, papers respect- Clergy. Vide Ecclesiastics. ing, ii. 404 Beggars, punished, i. 251 Bigamists, punished, i. 242 Birth, i. 2 who considered born, i. 2 Blasphemy, punished, i. 243 Boundaries between Coahuila and Texas and adjoining states, how regulated, i. 549 Coahuila and Texas, decrees in force in, i. |