Opinion of the court.

family as the heads of the tribe or nation could that of the nation.

Under the Spanish and French dominions, grants of land were always made to individuals in proportion to the number of persons composing the family. Thus, in Frique v. Hopkins, the court said as follows:

"By the regulations of the Spanish government, if the individual who applied for land was unmarried, a certain quantity was given to him; if he had a wife this quantity was increased, and if he had children an additional number of acres were conceded. Now, if the circumstance of his being married made the thing given become the property of both husband and wife, we must, on the same principle, hold that where children were the moving cause, they too should be considered as owners in common of the land conceded. That such was the effect of the donce having a family, was never even suspected. It certainly is unsupported by law. Many donations are made in which the donee's having a wife and being burdened with a large family is a great consideration for the beneficence of the donor, but this motive in him does not prevent the person to whom the gift is made from being considered its owner, nor prevent the thing from descending to his heirs."

We can hardly expect the Indians to be very profound on the subject of adverbs or prepositions, and the agents of the government do not seem to have exhibited much greater knowledge of the proprieties of grammar, or they would not have left this section of the treaty capable of misconstruction or doubt when it was so easy to avoid it. The words of this 14th section of the treaty were construed by Mr. Secretary Cass, to give to the parent the title to the whole. This construction had been the uniform one of the department in executing the treaty, and patents were issued accordingly, of the correctness of which no doubt was entertained. The register of those that applied to the agent under the article, contained the names of the heads of families

* 4 Martin, 212.

Opinion of the court.

only, which would seem to show the Indian construction of the contract or treaty. Accordingly, on the 29th of June, 1841, a patent was granted to William Hall, not for himself and his children-but to him and his heirs. At this time the Secretary had no means of ascertaining the names of the children so that separate patents might be given them in case of a different construction given to the treaty. In all others of the numerous treaties made with the Indians (more of them made by Governor Cass than by any other person), where lands were reserved, or agreed to be granted to any Indian, the name of the grantee and quantity to be given were carefully stated in the treaty.

As this section of the treaty was capable of a different construction, Congress, on the 23d of August, 1842, in order to save something for the children from the folly or incapacity of the parent, appointed commissioners with full power to examine and ascertain the names of the parties who had fulfilled the conditions of settlement to entitle them to patents for their land, and ascertain the quantity for each child, "according to the limitations contained in said article."

Now, while it is freely conceded that this construction given to the treaty should form a rule for the subsequent conduct of the department, it cannot affect titles before given by the government, nor does it pretend to do so. Congress has no constitutional power to settle the rights under treaties except in cases purely political. The construction of them is the peculiar province of the judiciary, when a case shall arise between individuals. The legislature may prescribe to the executive how any mere adminis trative act shall be performed, and such was the only aim and purpose of this act.

In the Cherokee treaty, where a grant of 640 acres was given to persons "willing to become citizens," a life estate only was given to the settler, with reversion to his children. This treaty makes no such provision for children. The construction given by the representatives of both parties to the treaty, and the grants issued under it, were not revoked, nor could they be, by mere legislative act, fouuded on a different

Opinion of the court.

construction of a doubtful article of the treaty. The treaty only describes the person who is contingently entitled to the reservation. He must be a Choctaw, and a head of a family, and desirous not only to remain, but must signify to the agent his intention to do so. These are conditions precedent, on the performance of which he shall, “thereupon be entitled to a reservation of 640 acres, and in like manner shall be entitled to half that quantity for each unmarried child which is living with him over ten years, and a quarter section to such child as may be under ten years," and if they reside upon the land, intending to become citizens for five years, &c., “a grant in fee-simple shall issue," &c. The father alone could fulfil the conditions; he would not be entitled to the additional land unless for a child that "was living with him." The treaty did not operate as a grant, and a patent was necessary to the person who alone could perform the conditions.

We do not consider it necessary to vindicate the conclusion to which we have arrived in this case, by further argument on the grammatical construction of this section of the treaty. Assume that the construction put on the treaty by the court below may possibly be correct. What then are the facts of the case? The complainants below have applied to a court of chancery, which should be a court of conscience, to vacate the title of a bona fide purchaser, who purchased and paid his money and expended a life's labor on land granted by patent from the United States, conveying a fee-simple estate, which was issued by the officers of the government without intention of imposing any trust on the grantee, or limiting it on the face of the deed.

It is contended that the purchaser is affected with notice of the terms of the treaty referred to in his patent.

If there be any trust for children it must be a constructive trust, which is negatived by the express terms of the grant. How can a chancellor build up by the words for and to-words of equivocal import and doubtful constructionan equitable title in the children? The fact is clear that such was not the construction under which the grantor gave the deed or the grantee accepted it. A chancellor will not

Statement of the case.

be astute to charge a constructive trust upon one who has acted honestly and paid a full and fair consideration without notice or knowledge. On this point we need only to refer to Sugden on Vendors,* where he says: "In Ware v. Lord Egmont the Lord Chancellor Cranworth expressed his entire concurrence in what, on many occasions of late years, had fallen from judges of great eminence on the subject of constructive notice, namely, that it was highly inexpedient for courts of equity to extend the doctrine. When a person has not actual notice he ought not to be treated as if he had notice unless the circumstances are such as enable the court to say, not only that he might have acquired, but also that he ought to have acquired it but for his gross negligence in the conduct of the business in question. The question then, when it is sought to affect a purchaser with constructive notice, is not whether he had the means of obtaining and might by prudent caution have obtained the knowledge in question, but whether not obtaining was an act of gross or culpable negligence."

The application of these principles of equity to the present case is too apparent to need further remark.

JUDGMENT REVERSED.

THE WATCHFUL.

1. A libel case, charging the vessel and cargo to be prize of war, dismissed because no case of prize was made out by the testimony.

2. But because the record disclosed strong prima facie evidence of a viola tion of the laws of navigation, and probably of our revenue laws also, the case was remanded, with leave to file a new libel according to these facts.

APPEAL from the District Court for the Eastern District of Louisiana,

In that court the schooner Watchful and cargo had been libelled as prize of war, and a decree rendered dismissing the libel, and restoring the property to the claimant.

* Page 622.

Statement of the case.

The claimant, one Wallis, to whom the property plainly belonged, was a citizen of Pennsylvania, residing at Philadelphia, and the evidence showed no reason to doubt his loyalty to the Federal government during the recent war. Nor was there any proof of intention to break the blockade or to trade with the enemy. It appeared only that the claimant had sold, in the late civil war in Mexico, to that party which was led by President Juarez, two hundred and fifty-two cases of firearms, which he had agreed to deliver on the Mexican coast, near Matamoras, and when his vessel arrived near that place, it was found, that the French army occupied the post, and no delivery could be made to the Juarez party. Under these circumstances, the officer in command started for New Orleans, not then blockaded, but in possession of the Union forces. On the way to that port his vessel was captured and sent in as prize.

The record did, however, seem to disclose some facts, in other respects, of a sinister character. It seemed to show that the vessel had cleared for Hamburg, when her real destination was Matamoras; that after she was out at sea, her clearance had been altered by erasing the word “ Hamburg” and substituting in its place the word "Matamoras;" that a false manifest had been used, and that the fact of the main cargo of two hundred and fifty-two cases of arms being on board, had been purposely concealed from the custom-house officers at New York, whence the vessel sailed.

Upon these latter facts, the Attorney-General now insisted that even admitting that there might be no sufficient proof of intent to break the blockade or to trade with the enemy, and so that the case was not one of prize, yet that the record before the court disclosed such a gross violation of our navigation laws, and possibly of our revenue and neutrality laws, that the case should be remanded to the District Court, with leave to file a new libel, or for such other proceedings as the government may deem advisable in the

matter.

The claimant was not represented in this court by counsel.