the opinions of Justices Thompson, McLean, Barbour, and Catron, and the judgment that was rendered; at the foot of which is the following memorandum: Dissenting Justices -Catron, Barbour, and Wayne. Mr. Chief Justice Taney did not sit in this case.' Attested as follows, True copy, test. Wm. Thos. Carroll, C.S.C., U. S.' That Mr. Justice McKinley was absent during the entire term, appears from a note of the reporter. If the attestation of the clerk be correct, then but four of the justices concurred in reversing the judgment of this court. And to all this, it may be added, that Mr. Justice McLean did not agree to the judgment of reversal, so far as we are informed by his opinion, upon the ground that the grant to William Pollard in 1809 was a 'new grant' within the meaning of the Act of the 26th of May, 1824. But he yielded his assent to the conclusion of Mr. Justice Thompson (as we understand it), because the second section of that statute required the improvement to be made on the lot east of Water Street, and to entitle the proprietor of the lot, immediately west of the water lot, the improvement should have been made by himself. These were questions, which, it seemed to us, were wholly unimportant to be considered, unless Pollard's was a 'new grant,' since it is an undisputed principle, that the plaintiff must recover upon the strength of his own title, and not upon the weakness of his adversaries.

"We have taken this view of the case referred to, with the most profound respect for the Supreme Court of the United States, and have only to say, that we hope an opportunity may soon be afforded for a re-examination of the Act of 1824."

Mr. Coxe for the plaintiff in error. Mr. Sergeant for the defendant. 599*] *Mr. Core contended:

1. That the judgment below was erroneous, and ought to be reversed.

2. That the Circuit Court erred in refusing to give the instructions as prayed by the plaintiff.

3. That it erred in giving the instructions which were given to the jury.

He considered the principle of the present case as decided in Pollard's Heirs v. Kibbe (14 Peters, 353). The same grant was there brought under review; and it was decided that the Act of 1836 was a private act which Congress had power to pass; that the claim of Pollard was excepted in the 2d section of the Act of 1824, and that the term "new" applied to grants made after the cession of Louisiana. (Pages 360, 362, 364.)

He referred also to 16 Peters, 234, where the question came up again, and quoted passages from pages 247. 251, 257, 265, 422, 427; from all which he inferred that the question had been decided and the rights under it settled.

Mr. Sergeant, for the defendant in error, said he did not mean to question any point decided in 14 Peters, but argued:

I. The plaintiff below had no right.

1. He derived no right from the Act of 1824, because he was not within the act; and also, because the United States had nothing in the premises to grant.

2. He derived no right from the Act of 1836, and the patent under it, as well for the reasons

already stated, as because the right of the United States, if any they had, was already granted by the Act of 1824 to those under whom the defendant claims.

II. The court did not err in refusing to give the instructions asked for by the plaintiffs, nor in giving the instructions which they did give. III. The court did not err in refusing to instruct the jury that the Act of 8th January, 1836, is contrary to the Constitution of the United States; and, if they did, it is immaterial, as the plaintiffs were barred on other grounds. This is a different case from Kibbe's and not covered by that decision. There was an error in fact there which misled the court, and which was not discovered until this case was tried. The claim is to a place between high and low water-marks, and the grant called for fast land. The grant was not surveyed or recorded.

*1. The plaintiff derived no right [*600 from the Act of 1824, because he was not within it. He cannot bring himself within any of the exceptions. He never owned a water-lot, nor made any improvements. (7 Laws United States, 318, Act of 26th May, 1824.)

If it be said that the plaintiff claims under a new and valid grant, the answer is, that if there was any grant at all, it was issued when Spain had no power to make one. In Pollard's Lessee v. Kibbe, the paper was said to have been executed on December 12, 1809, and the court took this for granted. It was the foundation of the opinion. (14 Peters, 351.) But this record shows that the date was altered, and that 1809 was not the true one. The jury found the fact of the alteration from 1810 to 1809, and if issued in 1810, Perez had no authority to make the grant.

The alteration must be presumed to be made after execution. (Peters C. C. R., 369.) And the materiality of the alteration is a question for the court. (1 Peters, 552.)

Perez, in 1810, having no power to grant, the basis of the plaintiff's title is gone, and the case infected with fraud.

The Act of 1824 says the Spanish govern ment must have made a new grant or order of survey for the same, during the time at which they had the power to grant the same;" and although the judges differed as to the precis time when the Spanish authority ceased, al agreed that it was extinct on the 12th December 1810. (Opinion of Judge Baldwin, page 368 369, 370; of Judge McLean, 366; of Judge Catron and Barbour, 426, 428; of Judge Thomp son, 355.)

The proclamation of the President was in October, 1810. The point decided in Kibbe case was that the grant was issued when the Spanish government had a right to do it, an the case stood upon that. At page 361, Judg Thompson says the grant was dated 12th De Icember, 1809, and was rejected by the com missioner because there were no improvement on the lot.

But possession is required to create a title (1 Howard, 95.)

2. The plaintiff derived no right from th Act of 1836, or the patent under it. That ac is only a quitclaim on the part of the Unite States, but they had nothing to grant. All thei title had previously been granted to Forbes & Company, or to the city of Mobile, and th

defendant unites those titles. The grant to Forbes & Company ran to the water; they had fulfilled all the conditions, had entered and made improvements before the Act of 1842 passed. There was no Water Street; nothing to 601*] divide them from the river. *The Act of 1324 vested a title per se, and the parties had nothing to do but go into court and show the facts in evidence. If the Act of 1836 be considered as explanatory of that of 1824, it is dangerous to construe a general act by a private one, obtain ed by a party for his own benefit. The true construction of that of 1824 is that the improvement must be made on the old lot; that every one who went to the water should not be cut off from it. It supposes an inchoate right to the lot in front, because an exception is, if a party has alienated the lot in front. He must, therefore, have had a right to alienate.

In Eslata's case, the record showed that the party who owned the old lot had improved both the old and new. The question, therefore, did not come up.

[The arguments of both counsel as to the right of the State of Alabama over navigable water in virtue of her sovereignty, are omitted, because the opinion of the court does not touch upon that point.]

Mr. Core, in reply:

It is said that the improvement must be upon the old lot, but, in 14 Peters, three of the judges dissented on this ground, and in 16 Peters, the court confirmed the dissent, and said it must be on the new lot. (16 Peters, 247.)

It has been said that Forbes & Company were riparian proprietors, running down to the water. But their grant calls only for a certain number of feet; and it was confirmed by the commissioner just in that way.

It has also been said that the grant of 1809 was void. But the plaintiff has a patent under the Act of 1836. If the plaintiff had recovered below, and the defendant had excepted to instructions, the question about the grant would have come up. The President's proclamation was in 1810, but no act of Congress was passed until 1811, and the country was not taken possession of until after that act. The record shows that evidence was given on the trial that Perez was commandant in 1810.

The volume of State Papers referred to, shows that Perez issued a grant in May, 1811, and even as late as November, 1811. (Vol. 3, Public Lands, 450, 454.)

Mr. Justice CATRON delivered the opinion of the court:

For the facts of the case, we refer to the report 602*] of it. It presents *the same titles, and substantially the same facts that were before this court in Pollard's Heirs v. Kibbe (14 Peters, 353).

The first instruction asked by the plaintiff of the State Circuit Court is, that the Spanish grant made to William Pollard was ratified and confirmed by the eighth article of the Treaty with Spain of 1819, by which the Floridas were acquired. This the court refused to give; and correctly.

It is the settled doctrine of the Judicial Department of this government.that the Treaty of 1819 ceded no territory west of the river Perdido, but only that east of it: and therefore all

grants made by Spain after the United States acquired the country from France, in 1803, are void, if the lands granted lay west of that river; because made on territory acquired by the Treaty of 1803; which extended to the Perdido east. It was thus held in Foster and Elam v. Neilson (2 Peters, 254), and again in Garcia v. Lee (12 Peters, 515), and is not now open to controversy in this court.

2. The plaintiffs then, by their counsel, prayed the court to charge the jury that the Act of Congress of 26th May, 1836, confirmed the said Spanish grant to Pollard; which charge the court refused to give, but, on the contrary, charged the jury, if they believed the evidence to be true, the fee-simple to the premises sued for were vested in Forbes & Co., and that the Act of Congress of 1824, and 1836, and the patent in pursuance thereof, were utterly void, só far as relates to the premises in question, and that no title vested in the lessors of plaintiff by virtue of said acts of Congress and said patent; to which charge the plaintiffs excepted.

The questions raised by the instruction asked and refused, and that given, will be examined so far only as to decide the present case.

This court held, when Pollard's title was before it, formerly, that Congress had the power to grant the land to him by the Act of 1836: on this point there was no difference of opinion at that time among the judges. The difference to which the Supreme Court of Alabama, in the present case, refers (in its opinion in the record), grew out of the construction given by a majority of the court to the Act of 1824, by which the vacant lands east of Water Street were granted to the city of Mobile. That grant excepted out of it, all lots to which "the Spanish government had made a new grant, or order of survey for the same, during the time at which they had the power to grant the same." If Pollard's was such "a new grant," than the land covered *by it was excepted and did not pass to [*603 the city; and the Act of 1836, and the patent founded on it passed the title to Pollard.

After the country west of the Perdido had been acquired by the Treaty of 1803, the Spanish government continued to exercise jurisdiction over the country, including the city of Mobile, for some nine years; the United States not seeing proper to take possession, and Spain refusing to surrender it, on the assumption that the country had not been ceded by that kingdom to France in the Treaty of 1800; and of course that it did not pass to this country by our treaty with France. That Spain had no power to grant the soil, during the time she thus wrongful held the possession, is settled by the cases cited of Foster and Elam v. Neilson, and Garcia v. Lee. But the right necessarily incident to the exercise of jurisdiction over the country and people rendered it proper that permits to settle and improve by cultivation, or to authorize the erection of establishments for mechanical purposes, should be granted. And to this end the concession to Pollard, of December, 1809, was made. He set forth in his petition to the commandant, that he had a mill established on his plantation, and often came to Mobile with planks and property from it; and that he wished a place propitious and suitable for the landing and safety thereof; and having found a vacant piece at the river side, between the canal of

Forbes & Co. and the public wharf, he solicits the commandant to grant him said lot on the river bank, to give more facility to his trading. This lot, the governor granted to Pollard for the purpose set forth by him.

The use, for the purpose solicited, during the time the Spanish authorities were exercised, could be properly granted; of this there can be no doubt.

Very many permits to settle on the public domain and cultivate, were also granted about the same time; which were in form incipient concessions of the land, and intended by the governor to give title, and to receive confirmation afterwards from the king's deputy, so as to perfect them into a complete title. Pollard's was also of this description. Although the United States disavowed that any right to the soil passed by such concessions, still they were not disregarded as giving no equity to the claimant: on the contrary, the first Act of Congress passed (of April 25, 1812) after we got possession of the country, appointed a commissioner to report to Congress on them in common with all others originating before the Treaty of 1803 took effect. The third section orders all persons, claiming lands, in the pre604*] viously *disputed territory "by virtue of any grant, order of survey, or other evidence of claim whatsoever, derived from the French, British, or Spanish governments, to be laid before the commissioner, with a notice in writing, stating the nature, &c., of the claim." On these (by sec. 5) the commissioner had power given him to inquire into the justice and validity of the claims; and in every case it was his duty to ascertain whether the lands claimed had been inhabited and cultivated; at what time the inhabitation and cultivation commenced; when surveyed, and by whom; and by what authority -and into every matter affecting their justice and validity.

By sec. 6, abstracts were to be furnished to the Secretary of the Treasury, of the claims, arranged in classes, according to their respective merits; and these abstracts, &c., were to be laid before Congress, for their determination thereon, &c.

By sec. 8, the commissioner was ordered to report to Congress at its next session, a list of all actual settlers on the land in his district, who had no claims derived from either the French, British, or Spanish governments, and the time such settlements were made.

In January, 1816, the report of commissioner (Crawford) was laid before Congress. (3 Am. State Papers, 6, “Public Lands.")

The 14th sec. of the Act of March 26th, 1804, declares all grants void if made for lands within the territories ceded by the French Republic to the United States, by the Treaty of the 13th of April, 1803 (and which had been acquired by France from Spain), that had been made after the date above. Provided, that the law should not be construed to make void any bona fide grant made by the Spanish government, to an actual settler on the lands granted, for himself, and for his wife and family, &c. On Pollard's claim the commissioner reported unfavor ably, because it had “not been inhabited nor cultivated." (3 State Papers, 18.) The bill of exceptions refers to this report as it stands in

the book, as part of the bill of exceptions, and as such it is treated by us.

In April, 1818, by a resolution of the Senate, it was referred to the Secretary of the Treasury to furnish a plan, for an adjustment of the claims reported on by the commissioners east and west of Pearl River: and on the 7th of December, 1818, the Secretary made his report in the form of a bill. (3 State Papers, 391.) On all the imperfect claims favorably reported on by the commissioners, derived from [*605 the authorities of Spain before the 20th of De cember, 1803, a confirmation was recommended: And the land that had been cultivated on or before that day, should be confirmed also, as if the titles had been completed. And as to all the other claims favorably recommended to Congress by the commissioners, the claimant should be entitled to a grant therefor, as a donation-not to exceed to any one person more than six hundred and forty acres: That all settlers before the 15th of April, 1813, shall re ceive a grant for the land claimed, not exceeding six hundred and forty acres, if actually inhabited and cultivated.

On this report the Act of March 3d, 1819, was founded-and by sec. 2, each settler with titlepapers, had confirmed to him his habitation as à donation, not to exceed one thousand two hundred and eighty acres; and this irrespective of the time when the settlement was made, if previous to the 15th of April, 1813; but the grant not to exceed six hundred and forty acres to such settlers as had presented no written evidences of title.

By the 7th, 8th, and 9th sections, those who had filed their notices of claim before the commissioner, and which had not been recommended for confirmation, were allowed to the 1st of July, 1820, to file additional evidence in sup port of the claim with the register and receiver, of the land offices respectively established by that act, in the country divided by Pearl River; who had the same powers conferred on them that the commissioner previously had. New claims might also be filed. On these the register and receiver were to report; of course, after the 20th of July, 1820. The land office for the country including Mobile was at Jackson cour house. Thus the matter stood for eight years.

By the Act of March 3d, 1827, further time was given to the first of September, 1827, to claimants whose evidences of claim had been previously filed with the commissioner, to produce further evidence, and "to present their titles and claims, and the evidence in support of the same, to the register and receiver of the land office at St. Stevens." By sec. 2, they were ordered to hold their sessions at the city of Mobile, and there examine the suspended claims on the same principles the commissioner had done.

Thus suspended and protected, stood the title of Pollard when the Act of 1824 was passed granting to the city of Mobile the river front. And from anything appearing to the contrary, it stood equally protected until con [*606 firmed by the Act of 1836. It was for the sovereign power to judge of its merits; it had never been rejected, and was awaiting the final action of Congress. Furthermore, it was from its situation as a city lot not subject to entry in s