Sunshine State of Confusion — The Spanish Acquisition, Native American Property Rights, and The Constitution of Cádiz

coverfullby Gerald Moran, Professor of Law

Illustrations by Karen Kurycki


On October 19, 2012, Florida Coastal School of Law sponsored a symposium celebrating the 200th anniversary of the adoption of the Spanish Constitution of Cádiz. This constitution applied to citizens of Spain and all of its colonies, including Florida. This moderately liberal document is, and will always be, considered the first constitution of Florida. Indeed, an obelisk celebrating the adoption of the Constitution was given to the City of St. Augustine. Despite subsequent orders by the Spanish authorities to destroy the monument, it was nevertheless preserved, unlike the other monuments commemorating the Constitution of Cádiz. It still stands in St. Augustine as a unique historical piece of Florida’s heritage.1

Professors John Knechtle and Mathew C. Mirow2 organized an academic gathering to discuss the historic importance of this unique constitution. The keynote address was provided by the Spanish Consul of Puerto Rico, Eduardo Garrigues. Consul Garrigues provided an overview of the details leading to the adoption of this new proclamation that delivered mildly increased liberty to Spanish citizens.3 The provisions of the constitution were formally debated and adopted by the Cortes (a Spanish legislative assembly) in Cádiz during the years 1810-1812. Spain was then engaged in a difficult struggle for its survival against the army of Napoleon Bonaparte (Bonaparte). That Spain became involved in war with France, formerly a close ally, reveals a deeply failed military assessment by Bonaparte. In a real sense, his assertion of political authority over Spain and the appointment of his brother, Joseph Bonaparte, as the new Spanish Emperor, constituted perilous and important factors that ultimately led to Napoleon Bonaparte’s military demise at Waterloo. Ironically, these events also provided the opportunity for the creation and adoption of the Constitution of Cádiz.

I will briefly address two separate but related issues. First, what was Spain’s legal basis for claiming the Florida territory as its colony? Secondly, what circumstances allowed a broad representative assembly of Spanish subjects (the Cortes) to meet in Cádiz? The purpose of the gathering was to adopt a constitution that limited the powers of an absolute monarchy and to place sovereignty in the people. There are other important questions, including whether the United States actually seized the Florida territory despite the formal negotiation of the Adams-Onís Treaty of 1819-1821? What were the actual boundaries of West Florida and whether West Florida was included in the Louisiana Purchase of 1803, as argued by the United States? These questions also touch the security of title acquired by individuals during the periods that Spain (1513-1763, 1783-1821) and Great Britain (1763-1783) possessed the Florida territory. Would these prior conveyances be recognized by the United States after it acquired Florida in 1821? While important to the larger discussion of the Florida territory, these pointed questions will be addressed in future publications.4

Spanish Discovery of the Florida Territory

During the late fifteenth and early sixteenth centuries, Portugal and Spain became the seafaring powers of Europe and competitors in the exploration of the world. Christopher Columbus and his brother, Bartholomew, were experienced sailors possessing imagination and ambition. They desperately sought financial support from the sovereigns of Portugal and Spain to finance an exploratory voyage westward to find the fastest route to India.5 Despite having successfully located numerous Caribbean islands (the Bahamas, Cuba, San Salvador, Jamaica, Lesser Antilles, and Puerto Rico, among others),6 Columbus died believing he had been charting the islands off the east coast of Asia.7

Of course, the most challenging grade school question immediately arises: why were the continents of North and South America named America instead of Columbus? The short answer is that Columbus never landed on nor identified either of the American continents. The more precise answer is that Amerigo Vespucci identified and charted the southern coast of the then unnamed continents, and this achievement resulted in his claim to fame. For public dissemination of Vespucci’s achievements, however, it fell to the publisher and cartographer, Martin Waldseemüller. He published a small book detailing Amerigo Vespucci’s geographic discoveries and later attached the explorer’s name to a map of the new continents. Both of these publications (book and map) were quickly circulated to the public in relatively large quantities for the time, and the rest of the story is truly history.8

The actual location of Florida occurred more than two decades after Columbus’s first journey west. By then, there were many enterprising explorers from Spain and Portugal seeking gold and other valuable resources. The list of the many courageous explorers representing the interests of Spain during the late fifteenth and sixteenth centuries is legendary. The notable explorers, among others, include: Christopher Columbus landing presumably in the Bahamas and Cuba in 1492;9 Juan Ponce de Leon in 1513 (landing possibly around Cape Canaveral), who named the territory La Florida;10 Diego Miruelo in 1516 (landing in Tampa Bay);11 Francisco Hernández de Cordova, who traversed large portions of the southern and western United States;12 and finally, Alonzo Alvarez de Piñeda, who mapped the Gulf Coast and determined that Florida was a peninsula, not an island.13 All of the aforementioned, other than Columbus and Cordova, landed on or observed some portion of the territory that would eventually become part of the State of Florida.14 By far, the most important to Florida of these explorers was Ponce de Leon, who was responsible for the first recorded identification of the territory in 1513.15 In celebration of Ponce de Leon’s achievement, Florida will celebrate the 500th anniversary of his identification of the Florida territory. Like the other Spanish explorers representing the Crown, Ponce de Leon “took possession of the land for his sovereign in a stylized ceremony.”16 By such liturgical act, it was publicly affirmed that the explorer was acquiring the land solely in the name of the sovereign. This formalized process of acquisition on behalf of the sovereign both reeks of feudalism and embellishes the sovereign’s claimed entitlement.

I have explicitly used the reference points of location or identification rather than discovery. How does a foreign national sovereign discover territory through his or her appointed delegate when the land is already inhabited by indigenous people? This can happen only if we apply the standard mechanism of a legal fiction. This leap of conspiratorial inspiration or improvised rationalization is premised on a false statement of fact; i.e., a legal assessment made solely from the Euro-centric perspective that an alleged act of discovery occurs whenever an alleged new location of land was previously unknown to western civilization even though it is inhabited. Obviously, this often-cited European rule of law applied despite the fact that the allegedly newly discovered land was presently occupied.

indian2The frequently reiterated claim of ownership by discovery was a useful legal fiction because it allowed the more advanced and powerful countries of centuries past to seize and claim ownership of already occupied land. The narrative itself is factually disingenuous by confusing the idea of finding land heretofore unknown and uninhabited with the act of locating of land that is currently occupied by indigenous people. This legal obfuscation (sleight of hand) converts easily into a black letter rule of law that is deceptively satisfying for first-year law students. What is a more accurate description, however, is that the territory in question was conquered by force. But the law does not happily accept an act of power as the basis for ownership. Naturally, the judiciary is reluctant to invoke power as the basis for entitlement because it attaches legality to an egregious act of violence.

The rule of law that discovery under these circumstances, apart from the reality of the act of conquering, is a basis for ownership may be a reassuring learning experience for the law student, but the rule is completely indifferent to the concept of justice. The incongruity between what law students hear at graduation ceremonies and their first weeks of law school classes could not be more diametrically contrasted. It may, nevertheless, be a succinct overture to their future development as lawyers. Moreover, this rule of law is fully entrenched in decisions of the United States Supreme Court. To understand the basis of this proposition of law we need to review in part the infamous decision rendered by Chief Justice John Marshall in Johnson v. M’Intosh.17

Johnson v. M’Intosh-Chief Justice John Marshall

The Supreme Court of the United States was faced with the question of whether Native American tribes possessed the authority to sell land to private citizens in the celebrated case of Johnson v. M’Intosh in 1823. The impact of this decision would greatly affect the rights of all Native American tribes as to their legal authority over land located within their normal living and hunting habitat. The appropriate legal description of the Native Americans’ property interest from the perspective of formal law would be “land located within their respective jurisdiction.” But having no such formal legal reference point, their legal interest in land was described by Chief Justice Marshall as “ . . . rightful occupants of the soil, with a legal as well as just claim to retain possession of it and to use it according to their own discretion . . .”18

In resolving property claims between international states, Chief Justice John Marshall explained in Johnson v. M’Intosh19 that the applicable discovery rule was well settled and established:

. . . But, as they were all [national states seeking territory in America] in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that the right that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.

The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.

Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.20

Johnson v. M’Intosh is frequently one of the first opinions considered by first-year law students in property law when they are undergoing the confusing process of adapting to a new way of thinking. Few students have either sufficient prior experience or the academic preparation to challenge the veracity of the great Chief Justice Marshall’s rhetorical explication. For the novice law student, he or she is committed to absorption of the various observations and reiteration of the stated legal propositions, in haec verba, in response to any probing questions about the case from the law professor.

Johnson v. M’Intosh deals directly with the exercise of power by a highly self-designated and principled country (the United States) born in the heat of utopian thoughts beautifully expressed in the Declaration of Independence. We of the legal tradition do all that we can to corral, socialize, conceal, and justify an act of power for the benefit of the United States through the employment of rhetorical devices. It is dogma of the legal process that pure exercises of power are subject to and controlled by rules of law. Useful and charming legal fictions are invented and applied to provide communal belief about the sanctity, consistency, and significance of the rule of law. This is particularly true when we are assessing the actions of or derivative entitlements of the United States.21

Thus the rule of law adopted by Chief Justice Marshall was that all countries, presumably European countries, agreed and assented to the rule that the so-called country of discovery was eligible for legal acquisition. But this assumes a territory in which no one is presently habitually residing or foraging within; i.e., a terrae nullius. As a factual matter, the assumption made by Marshall is not true. Since the decision is premised on a fictitious factual basis and includes the denial of equal status to the Native Americans, and by indirection to aborigines located in other countries that are similarly treated, we have an ancient rule of law that is in violation of minimum standards of justice and equal treatment of citizens.

Nonetheless, a serious question is raised as to whether Native Americans actually possessed the property since many tribes tended to follow a migratory pattern of existence. Also, the Native Americans did not subscribe to the same concept of possession and ownership as developed under the common law or other previously known systems of law. Marshall’s decision also clearly justifies discrimination of the basis of one’s status. This was a customary practice during the early part of the nineteenth century when slavery was still a normative standard of many civilized countries. Religious beliefs also mattered greatly. The Native Americans were, from the perspective of dominant Christian religion, heathens desperately in need of the truths of the Catholic religion.

Chief Justice Marshall spoke forthrightly to these factors when he explained:

. . . and the character and religion of its inhabitants afford an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence.22

Clearly, Marshall was speaking in the conventions of his time and quite frankly could not arrive at a decision that recognized absolute property rights on the part of the Native Americans. This was the best rationalization available to him. The legal system is always sufficiently flexible to allow for a thoughtful rational analysis to buttress an uncertain answer even if it applies in that time only; it need not provide the ultimate answer.

Professor Blake A. Watson has recently published an important book addressing the implications and the obvious defects of the decision in Johnson v. M’Intosh.23 His analysis will have a lasting impact on future jurisprudence relating to the discovery rule. His penultimate commentary is worth noting:

If Indians and other Native inhabitants held property rights prior to the European discovery, how were such rights divested? In some instances, the discovered lands were deemed to be terra nullius, and in other instances acquisitions of preexisting Native property rights were justified by discovery, conquest, treaty, purchase, proclamation, statute, and judicial fiat. Europeans claimed Native rights on the basis of feudal law, cannon law, common law, natural law, positive law, and international law. Native laws and customs were rarely, if ever, consulted.24

But Marshall could not rule contrary to his country’s interest. He had to legally negotiate between Scylla and Charybdis and did his best, making some peace offerings, to arrive at the preordained conclusion. In this case, Marshall faced a legal dilemma when his judicial discretion was practically non-existent. He could neither deny ownership on the part of the United States, particularly in view of the fact it was the legal successor to the prior sovereigns (French, Spanish, and English), nor admit that Native Americans possessed the ability to own and convey property located within the territory of the United States. Obviously, Marshall had to resolve the conflict in favor of the United States.

A rule of law was invented and frequently proffered, but it was not followed in practice. Nations seldom felt prohibited from challenging continued possession and entitlement of a country claiming right by discovery. For example, the French aggressively took possession of a portion of Florida in 1564 when it attempted to establish a permanent settlement on or near the opening of the St. Johns River. The English also sponsored military attacks on the Florida territory when it initiated attacks from the Carolinas.25 Moreover, the French and Indian War was a direct rejection of the alleged rule of international law.

The wisdom of the legal realist, Thurman W. Arnold, strikes home here when he speaks to this practice of the judiciary:

. . . It is part of the function of “Law” to give recognition to ideals representing the exact opposite of established conduct. Most of its [law] complications arise from the necessity of pretending to do one thing, while actually doing another. It develops the structure of an elaborate dream-world where logic creates justice . . .Yet the observer should constantly keep in mind that the function of law is not so much to guide society, as to comfort it . . . 26

In this case, the flurry of European explorers of the Americas did claim their “new discoveries” in the name of their respective sovereigns. But are these truly discoveries? A more accurate term would be invasion. Nonetheless “discovery” did not preclude other countries or entrepreneurs from seeking to acquire the same possessions by force. For example, consider the many military campaigns conducted throughout the Florida territory since the founding of St. Augustine in 1565.

In sum, Chief Justice Marshall deftly employed a popular rule of law; i.e., a sovereign acquiring title by the “right of discovery” that was neither accepted by all nor a practice of the European countries. Indeed, one might say that the Europeans actually invaded the Americas by engaging in a war with the native inhabitants and also with each other. Consider again the establishment of the French Huguenot settlement on the St. Johns River in 1564, followed by the ruthless extermination of the settlement and the similar treatment of the captured French sailors by the Spanish. Why is the channel in St. Augustine referred to as the Matanzas River?27 Notwithstanding, Florida remained an active colony of Spain from 1565 to 1763, although frequently under siege, and except for the period of limited British control during 1763 and 1783, it continued to be a colony of Spain until it was sold or taken by force by the United States in the disguised form of a treaty in 1819.

Unique Factors Giving Birth to the Spanish Constitution of Cádiz

The Peninsular War took place during the period of 1808 through 1814 and unexpectedly became a significant part of Bonaparte’s ongoing military campaigns. It is necessary to have some understanding of the Peninsular War (also referred to by the Spanish as their War of Independence), as it serendipitously created a unique opportunity for open debate on a new constitution for Spain. The Cortes also successfully limited the number of delegates representing the oppressive forces of the Roman Catholic Church and the privileged classes that supported an absolute monarchy.

Bonaparte was confronted with a tantalizing opportunity to acquire Spain without the expenditure of time or significant resources. The principal participants of the Spanish monarchy constituted a seriously dysfunctional group of individuals who were actively engaged in various plots against one another. Formally, Spain and France had entered into a private agreement to eliminate the English establishment of a military force in Portugal and also to divide Portugal into three separate kingdoms.28

It is noteworthy that Charles IV, then King of Spain, and his “alleged” son as the heir apparent, Ferdinand VII, were both caught in the spider web of deceit spun by powerful and devious Bonaparte. They were no match for the deceptions of the Emperor. Charles IV was little interested in carrying out the responsibilities of the monarchy. He allowed the Queen’s favorite and probable lover, Manuel de Godoy (aka Prince of Peace)29 to conduct the affairs of the state. Manuel displayed rather poor character traits by willingly entering into various arrangements that enhanced his power and increased his accumulation of wealth at the loss of the best interests of the Spanish government. All three of these characters (Ferdinand VII, Charles IV, and de Godoy) became captives of Bonaparte at Bayonne, France. Eventually, Charles and Ferdinand were both forced to abdicate the Spanish throne to Bonaparte and were given lifetime security through access to an estate and a degree of economic support.30

The Emperor promptly appointed his brother, Joseph, the King of Spain, after both Charles and Ferdinand renounced the crown. Shortly thereafter, the citizens of Spain revolted against France and its army. These events taking place in 1808 united most of Spain’s citizens in a very personal war against the French forces. This response greatly increased the security of Portugal as well as aided the English in their continuous battle in the Peninsular War against the French. And, despite the renowned reputation of the French army, the campaign cost Bonaparte in the loss of manpower, supplies and other resources far in excess of what he presumably anticipated. The Peninsular War was his Vietnam, resulting in an unexpected defeat.

Spain was far from having an open political environment prior to 1808, as its laws and social norms largely reflected the edicts of the principal monarchies of the Iberian Peninsula: namely, the Kingdoms of Castile, Aragon, and Portugal. These domains and others remained separate until the marriage of Isabella of Castile and Ferdinand of Aragon in 1469. Despite the unification effected by their marriage, some of the provinces remained as independent kingdoms. The first unified function of the separate kingdoms of the Iberian Peninsula, as claimed by one scholar, was that of the institution of the Spanish Inquisition.31 The sovereigns of these kingdoms also operated in conjunction with the powerful edicts of the Pope and the local principals of the Roman Catholic hierarchy. Thus, the thought of delivering legally protected freedoms in a constitution for the benefit of all the citizens of the Spanish Empire was nonexistent despite documents of other countries proclaiming the rights and liberties of all citizens. The War of Independence then served as a catalyst for the promulgation of some of these ideas.

In many respects, Spain of the early nineteenth century was still following norms that were characteristic of earlier times. The renowned French historian of the middle ages, Jacques Le Goff, explained the general concept of freedom for the medieval generation as:

Medieval man had no sense of freedom as it is conceived of today. Freedom to him was a privilege and the word was more readily used in the plural. Freedom meant a guaranteed status: [. . .] It meant belonging to society. There was no liberty without community. It could only exist in a relationship of dependence, with a superior guaranteeing to a subordinate that he would respect his rights. The free man was the man who had a powerful protector.32

Despite the noticeable time difference, the liberty of Spanish citizens during the early nineteenth century was still not that far removed from the above description in view of the authority of an absolute monarchy and the enforcement of an extreme political agenda by the Roman Catholic Church. Both institutions crafted a partnership that resulted in limited freedom.33

How does one relatively small portion of the expansive military campaigns conducted by Bonaparte during the period of 1803-1814 become critical to the subsequent adoption of a new constitution for Spain? Bonaparte’s military successes on land during the period of 1803-1807 were nothing short of staggering. However, a major setback occurred when the combined naval forces of the French and Spanish were completely destroyed by the English at the Battle of Trafalgar in 1805. Spain was then an active partner with France in attempting to eliminate the English embargo imposed on France, Spain, and the other conquered countries of Europe. Prior to this loss, Bonaparte was actively contemplating a landing invasion on the shores of England. Without the necessary naval security and freedom of the seas, this plan would no longer remain a realistic option. Bonaparte was left with no option other than that of foraging on the other European countries, particularly those to the east.

Bonaparte’s compulsive and insatiable appetite for power is a major factor of the complex narrative that gave birth to the Constitution of Cádiz. Brilliant but misguided, Bonaparte is not done justice by attribution or majestic encomiums. He had already conquered Austria and Prussia, and Russia was forcefully pushed farther to the east. The Treaty of Tilsit with Russia in 1807 confirmed his personal hegemony over most of Europe. But could Bonaparte ever be fully content with his existing military achievements? He, like the mythical Icarus, became a victim of his own success. His eventual mismanagement of the intervention in Spain foretells the future disaster that awaited the French forces in the long withdrawal from Russia. It was a critical error with significant implications.

Portugal became the obvious choice of Bonaparte’s next attack because it was a subtle, but painful, irritant to him. It had been supporting the British navy in direct violation of the Emperor’s edicts. A sanction was due on Portugal, but there was only one option to achieve that object and that included traversing Spanish land to the seaports of Portugal. Taking this obvious geographical bridge to Portugal would eventually explode into the Peninsular War involving Portugal, England, and Spain in a forceful military alliance against France. This did not have to happen, and the blame clearly rests with Bonaparte.

Not surprisingly, the formally trained military forces of Spain were quickly defeated by Bonaparte in 1808 and the remaining military forces were then largely composed of units of separate provincial juntas and citizen-volunteers. Since the combined insurgent forces of Spain could not generally engage the French in the traditional grand scale battles, the remaining forces relied principally upon an innovative form of guerrilla warfare.34 Consequently, the French military was unable to adjust to this new form of warfare, and they lost despite an enormous investment of manpower and other vital resources. It must be noted that the English provided ample support to Spain in troops, supplies, and naval protection along with some assistance from Portugal. Most historians, including Bonaparte himself, cite the disastrous Russian campaign as the principal reason for his eventual downfall.35

Meanwhile, the French forces had already secured an extensive portion of the Spanish territory until confronted by a determined group of defiant Spanish citizen-warriors. Cádiz provided a secure place where the invited representatives of the Cortes could freely meet, debate, and agree on the provisions of the new constitution. Thus, it is not an exaggeration to say that the Peninsular War helped to provide the conditions for open debate of the Constitution of Cádiz. The deliberations took place in Cádiz because it was one of the few relatively secure locations in a southwestern portion of Spain: a seaport on the Atlantic and protected from a sea attack by the powerful British Naval forces.

Prior to the adoption of the new constitution, the government of Spain was an absolute monarchy dominated by the Roman Catholic religion; and in some respects it authorized the potential for an extreme tyrannical sovereign. The new constitution adopted at Cádiz imposed significant restraints on the crown and placed the sovereignty of the country in the citizens. It portends a promise of some increased liberty for the citizens of Spain, but unfortunately left the Roman Catholic Church as the reigning authority on matters of religion.36 Precisely because of the restraints imposed on the monarch, the Constitution had a very limited life span. As soon as Ferdinand VII was released from custody by Bonaparte in 181437 and returned as King of Spain, he disavowed the Constitution of Cádiz and imprisoned some of members of the Cortes who had adopted it.

Before rejecting the constitution, Ferdinand VII had made secret and deceptive promises to Spanish partisans regarding his unconditional support for the new constitution. The participants of the Cortes sought his return, assuming that his indicated support for the new constitution was sincere. He was envisioned as a symbolic hero for the new government and was referred to as “the desirable.” His return to Spain was not to be the realization of their collective dreams. Indeed, Ferdinand’s personal record in stately affairs did not suggest that he possessed any of the values or interests then attributed to him. But desperate needs tend to engender excessive expectations in contrast to a rational evaluation of the inherent uncertainties of the future. It was particularly true in this case. Because of the influence of the traditional friends and past beneficiaries of the Spanish absolute monarchy and papal directives, Ferdinand VII apparently never intended to carry out the original commitment he made to partisans regarding his affirmation of the Constitution of Cádiz.38 A more appropriate sobriquet for Ferdinand VII would have been “the destroyer” although the one actually applied to him in due course by the Spanish was “the felon.”

The overwhelming disappointment of the Spanish in the returning King was well deserved. His authority was diminished in 1820, although he continued to reign until 1833. The unconditional rejection of the Constitution of Cádiz by Ferdinand VII should not have been a complete surprise, as most sovereigns-in-waiting expected free reign in the exercise of their governmental power. Few monarchs socialized to the enjoyment of absolute power would voluntarily accept any limitation on their heretofore unlimited prerogatives. The much celebrated document of English legal history, the Magna Carta, was given the identical treatment of rejection by King John shortly after he executed the majestic document in 1215. The message being, do not trust a deceitful despot-ever. The hoped-for constitution providing for liberty would long remain a desire of the Spanish.



1 M. C. Mirow, Florida’s First Constitution-The Constitution of Cádiz, 14 (2012).

2 Professor Mirow, on the faculty of Florida International

University School of Law, recently published a book providing a discussion and translation of the Constitution. M. C. Mirow, Florida’s First Constitution-The Constitution of Cádiz (2012).

3 The “liberal” nature of the Constitution of Cádiz is found in the expansion of authority beyond the throne. Rather than an absolute monarchy, the Constitution created branches of government and gave sovereignty to the nation, not the King. Id., at 11-13.

4 Professor Glenn Boggs, of Florida State University, has made a rich contribution to the discussion already in a trilogy of articles published in The Florida Bar Journal. See, Glenn Boggs, “Free Florida Land: Homesteading for Good Title,”

83 FLA. B. J., Jan. 2009, at 10; “Florida Land Titles and British, Not Just Spanish, Origins,” 81 FLA. B. J., July-Aug. 2007, at 23; “The Case of Florida’s Missing Real Estate Records,” 78 FLA. B. J., Oct. 2003, at 10 (2003).

5 Daniel J. Boorstein, The Discoverers-A History of Man’s Search To Know His World and Himself, 224-44 (1983).

6 Id., at 238-39.

7 Id., at 244.

8 Id., at 252-54.

9 Michael Chiorazzi and Marguerite Most, Editors, Vol.1

Prestatehood Legal Materials, 249 (2005).

10 David J. Weber, The Spanish Frontier in North America,

28-9 (2009).

11 Jerald T. Milanich, Florida Indians and the Invasion from Europe, 110 (1995).

12 Id.

13 Id.

14 Id., 105-10.

15 Weber, supra, note 5, at 28-9.

16 Id.

17 21 U.S. 543 (1823)

18 Id., at 574.

19 Id.

20 Id., at 573 (Emphasis added).

21 For a thoughtful book on legal fictions collating his law review articles written in 1930-31, see Lon Fuller, Legal Fictions (1967).

22 Supra, note 17.

23 Blake A. Watson, Buying America from the Indians: Johnson v. M’intosh and the History of Native Land Rights (2012).

24 Id., at 357.

25 See generally, David J. Weber, The Spanish Frontier in North America, 105-07, 118, 129, and 217-218 (2009).

26 Thurman W. Arnold, The Symbols of Government, 34 (1962).

27 A violent hurricane both forced the French off course and also far to the south of St. Augustine where it caused the destruction of their ships. French survivors of the hurricane were found walking north on the beach by the Spanish authorities only to be transported in small groups (three or four at a time) across a river and executed quietly out of sight and sound. The entire community of the French survivors was eliminated. This event thus provided the name of the river now known as the Matanzas River. For clarification purposes, the meaning of the word “Matanzas” means slaughter in Spanish.

28 France and Spain divided Portugal in the secret Treaty of Fountainebleau in 1807. See, Edward Baines, 2 History of the Wars of the French Revolution, from the Breaking Out of the War in 1792, to the Restoration of a General Peace in 1815; Comprehending the Civil History of Great Britain and France During that Period, 62 (1817).

29 “The title of Prince of Peace was conferred on Don Manuel Godoy on the ratification of the treaty of peace concluded between France and Spain at Basle, in the year 1795.” Id. at 63

30 The Edinburgh Annual Register for 1808, Chapters xiii-iv, 239-290 (1810)

31 Cecil Roth, The Spanish Inquisition, 51, 72-3 (1964).

32 Jacques Le Goff, Medieval Civilization, 280 (1988).

33 Charles J. Esdaile, Spain in the Liberal Age: From

Constitution to Civil War, 1808-1939, 6-7 (2000).

34 See generally, Miguel Ángel Martín Mas, The Guerilla 1808-1814: Napoleon’s Spanish Nightmare (2005), See also Esdaile, Id., at 29-30, and 36.

35 Norman Davies, Europe: A History, 742 (1996).

36 In fact, religious freedom and abolition of a state religion were not present in Spain’s Constitution until 1978. See, George E. Glos, The New Spanish Constitution, Comments and Full Text, 7 Hastings Const L.Q., Fall 1979, at 47, 55.

37 Esdaile, supra, note 30, at 38.

38 Id., at 38-39.