Florida land titles and British, not just Spanish, origins.

• Author: Boggs, Glenn

All Florida lawyers should know that the state traces its colonial heritage back to Spain, and many, particularly real estate practitioners, are aware that some Florida land titles begin with a grant from the Crown of Spain. Relatively few, however, know that title to a smaller number of parcels began with a grant from Great Britain. How this happened is an interesting, if relatively unknown, facet of Florida's legal background. First let's reacquaint ourselves with certain aspects of colonial American history.

The Colonial Situation

Spanish Explorer Don Juan Ponce de Leon was certainly not the first individual to see Florida, but he was the first to make an official record of his visit. In 1513, at the high point of the Easter season, he came ashore, probably near what is now St. Augustine, and named the peninsula "La Florida," perhaps signifying the "Flowery Land." (1) Folklore suggests that Ponce de Leon was looking for a legendary "fountain of youth" when he landed in Florida. Although he never found the fabled fountain, his "discovery" of Florida won him a place in history and the name he gave stuck.

Nevertheless, Ponce de Leon's efforts on behalf of the Spanish crown were only part of a much larger mosaic formed by Spain. Not long before the conquistador visited Florida, a remarkable year in Spanish history set that nation on a course toward a vast empire and the role of a major world power for roughly three centuries. That year was 1492. It was the stage for two major events: First, King Ferdinand's and Queen Isabella's forces finally vanquished the Moors, ending centuries of struggle by pushing them back to North Africa, (2) and second, they funded Columbus' epic voyage of discovery to the New World. Spain's claim to vast areas in the Americas that formed much of her empire was based on a document titled "Bull of Pope Alexander Conceding America to Spain," (3) in which the Pope gave his blessing to Spanish discoveries and conquests in the New World (with exceptions for Portuguese interests in Brazil).

Spanish treasure fleets sailed the Atlantic, the Caribbean, and the Pacific. Spain governed all of Central America, much of both North and South America, and even the faraway Philippine Islands. Spanish claims of sovereignty in Florida, which began when Ponce de Leon came ashore in 1513, ended when Spain ceded Florida to the U.S. in 1821. Nearly three centuries of Spanish hegemony in Florida was, however, broken by a 20-year hiatus from 1763 to 1783, when Great Britain exercised dominion over "the Floridas," known then as East and West Florida.

The primary focus here is on the relatively brief 20-year period of Britain's rule. The British presence in Florida resulted from the interplay of European military conflict, diplomacy, and politics manifested primarily in two separate treaties: the Peace of Paris of 1763 and the Treaty of Paris, signed at Versailles in 1783. (4) Britain was a party to both. In The Age of Revolution, Winston Churchill commented on Britain's negotiating strategy with the other European powers and explained the overall context under which Spain transferred her holdings in Florida to Britain in 1763, noting that "Britain's acquisitions under the terms of the Peace of Paris in 1763 were nevertheless considerable .... From Spain she received Florida." (5)

Churchill was not the only commentator to discuss the 1763 treaty. It brought to a close what U.S. students usually refer to as the French and Indian War (the American portion of the Seven Years War). (6) Notice again that the date of acquisition was 1763. This preceded the Declaration of Independence by only 13 years, and in reality meant that there were 15 English colonies in America, south of Canada, when the Revolutionary War began. Neither of the Floridas gave any appreciable aid or comfort to their rebelling neighbors to the north, and when the Revolutionary War ended, they neither expected nor even appeared to seriously want independence from Great Britain.

Once again, we can look to Churchill to explain the dynamics of European diplomacy, this time commenting on the armistice reached in Paris 20 years later in 1783. Churchill's explanation makes it clear that the American Revolution was only one theatre in a larger, worldwide struggle mainly involving the European powers. According to Sir Winston, the outcome left England "heavily battered," but "undaunted." Among other things, the agreement required Britain to transfer Florida back to Spain and specified certain details about how to accomplish this transfer, details which would prove to be important in considering land titles. (7)

The treaty between Britain and Spain took into consideration British land grants in Florida and property rights arising thereunder. It specified how, after the transfer, Spanish authorities were obligated to treat landowners from the British period. Legal ramifications of such property rights became critically important to American authorities who had responsibility for settling titles to land after Florida had been transferred to the U.S. in 1821. For a clear understanding of real estate ownership rights, specific sections of both the treaty transferring Florida from Britain back to Spain in 1783 and the treaty transferring Florida from Spain to the U.S. in 1821 must be analyzed.

Relevant Treaties

For Americans, the main consequence of the Treaty of Paris of 1783 was the official conclusion of the Revolutionary War. Even casual students students of American history recall that John Adams, John Jay, and Benjamin Franklin (the first U.S. ambassador to France) were instrumental in negotiating its terms.

On the other hand, American historians have been, for the most part, uninterested in aspects of the overall settlement that delineated rights of British land grant holders in Spanish colonial Florida. Little comment on this narrow subject is found in the relevant literature. The section of the 1783 treaty between Britain and Spain addressing British property rights (referred to as the Treaty of Versailles) is found in Article V, a translation of which is quoted below:

His Britannic Majesty moreover cedes and guarantees, in full ownership, to his Catholic Majesty, Eastern Florida as well as Western Florida. His Catholic Majesty agrees that the British inhabitants or others who may have been subjects of the King of Great Britain in said lands, may withdraw in all safety and liberty, where it seems good to them, and may sell their goods and transport their effects as well as their persons without being hindered in their emigration, under any pretext at all, except that of debts or criminal process .... (8)

A close reading of these terms reveals that they are not overly generous to "British inhabitants or others who may have been subjects of the King of Great Britain." This point will soon become more evident when these terms are compared to and contrasted with corresponding terms of the 1821 treaty transferring Florida from Spain to the U.S.

First, however, notice the terms here. British inhabitants or subjects were granted treaty rights to "withdraw in all safety and liberty, where it seems good to them, and may sell their goods and transport their effects ... without being hindered in their emigration." In other words, they could "sell out and move on," and nothing was stated specifically about ownership of real property, unless such property rights were included in the term "goods."

Nearly 40 years later, when Spain transferred Florida to the U.S., the treaty language regarding real estate ownership by individuals was markedly different and considerably more advantageous to the property owner. Perhaps this divergence can be explained by the relative differences in bargaining power and negotiating skill between Britain and Spain in the first treaty, and between Spain and the U.S. in the second. Or, as is perhaps more likely, the difference could have resulted from a greater emphasis on private property rights by American negotiators than demonstrated by their Spanish counterparts in the earlier document. (9)

In any event, the later treaty (negotiated in 1819, effective in 1821) contained the following language regarding private property rights:

All the grants of land made before the 24th of January 1818, by His Catholic Majesty or by his lawful authorities in the said Territories ceded by His Majesty to the United States, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid if the Territories had remained under the Dominion of His Catholic Majesty. But the owners in possession of such lands, who by reason of the recent circumstances of the Spanish Nation and the Revolutions in Europe, have been prevented from fulfilling all the conditions of their grants, shall complete them within the terms limited in the same respectively, from the date of this Treaty; in default of which the said grants shall be null and void--all grants made since the said 24th of January 1818, when the first proposal on the part of His Catholic Majesty, for the cession of the Floridas was made, are hereby declared and agreed to be null and void. (10)

Notice carefully the first sentence of Article 8: The U.S...