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hanced by excluding the water from control state legislation over those the marsh, and the health of the inba: small navigable creeks into which the bitants probably improved. Measures tide flows, and which abound throughcalculared to produce these objects, out the lower country of the middle provided they do not come into colli and southern states; we should feel sion with the powers of the general go. not much Jifficulty in saying that a vernment, are undoubtedly within state law coming in conflict with such those which are reserved to the states. act would be void. But congress has But the measure authorized by this passed no such act. The repugnancy act stops a navigable creek, and must of the law of Delaware to the constilube supposed o abridge the rights of tion is placed entirely on its repugnanthose who have been accustomed to cy to the power to regulate commerce use it. But this abridgment, unless with foreign nations and among the it comes in conflict with the constitu several stales ; a power which has not tion or a law of the United States, is been so exercised as to affect the quesan affair between the government of tion. Delaware and its citizens, of which We do not think that the act emthis court can take no cognizance. powering the Black-Bird Creek Marsh
The counsel for the plaintiffs in er Company to place a dam across the ror insist that it comes in conflict with creek, can, under all the circumstanthe power of the United States “ to re- ces of the case, be considered as regulate commerce with foreign nations pugnant to the power to regulate comand among the several states."
merce in its dormant state, or as being If congress had passed any act in conflict with any law passed on the which bore upon the case ; any act in subject. execution of the power to regulate There is no error, and the judgment commerce, the object of which was to is affirmed.
James Foster & al. vs. David Neilson.
The facts in this cause are so parti. the return of the survey itself was cularly stated, in the opinion of the made on the 27th of October in the court, as to render any preliminary same year. The defendant excepted statement unnecessary.
to the petition of the plaintiffs, alleging The case was argued by Mr. Coxe that it does not show a title on which and Mr. Webster for the plaintiffs, and they can recover; that the territory, by Mr Jones for the defendants. within which the land claimed is si
Chief Justice Marshall delivered fuated, had been ceded, before the the opinion of the court.
grant, to France, and by France to This suit was brought by the plain the United States ; and that the grant tiffs in error, in the court of the United is void, being made by persons who States for the eastern district of had no authority to make it. Tho Louisiana, to recover a tract of land court sustained the excepijon, and Tying in that district, about thirty miles dismissed the petition. The cause is east of the Mississippi, and in the pos- brought before this court by a writ of session of the defendant. The plain- error. tiffs claimed under a grant for 40,000 The case presents this very intriarpents of land, made by the Spanish cate, and, at one time very interestgovernor, on the 2d of January, 1804, ing question : To whom did the counto Jayme Joydra, and ratified by the try between the Iberville and the Perking of Spain on the 29th of May, dido rightfully belong, when the title 1804. The petition and order of sur now asserted by the plaintiffs was acvey are dated in September, 1803, and quired ?
discussed with great talent and re- into two provinces, East and West search, by the government of the Uni Flonda. The latter comprehended so ted States and that of Spain. The much of the country ceded by France United States have perseveringly and as lay south of the 31st degree of north earnestly insisted, that by the treaty of Jatitude, and a part of that ceded by St. Ildefonso, made on the ist of Oc- Spain. tober, in the year 1800, Spain ceded by a treaty of peace between Great the disputed territory as part of Loui. Britain and Spain, signed at Versiana to France; and that France, by sailles on the 3d of September, 1783, the treaty of Paris, signed on the 30th Great Britain ceded East and West of April, 1803, and ratified on the 21st Florida to Spain: and those provinof October, in the same year, ceded it ces continued to be known and goto the United States. Spain has with verned by those names, as long as they equal perseverance and earnestness remained in the possession and unmaintained, that her cession to France der the dominion of his catholic macomprehended that territory only jesty. which was at that time denominated On the 1st of October, in the year Louisiana, consisting of the island of 1800, a secret treaty was concluded New Orleans, and the country she re- between France and Spain, at St. ceived from France west of the Mis- Ildefonso, the third article of which is sissippi.
in these words : “ His catholic maWithout tracing the title of France jesty promises and engages on his to its origin, we may state with confi. part to retrocede to the French repub. dence that at the commencement of lic, six months after the full and enthe war of 1756, she was the undis. tire execution of the conditions and puted possessor of the province of stipulations relative to his royal highLouisiana, lying on both sides the Mis- ness the duke of Parma, the colony or sissippi, and extending eastward be- province of Louisiana, with the same yond the bay of Mobile. Spain was extent that it now has in the hands of at the same time in possession of Flo- Spain, and that it had when France rida; and it is understood that the possessed it, and such as it should be river Perdido separated the two pro- after the treaties subsequently entered vinces from each other.
into between Spain and the other Such was the state of possession and states." title at the treaty of Paris, concluded The treaty of the 30th of April, between Great Britain, France, and 1803, by which the United States acSpain, on the 10th day of February, quired Louisiana, after reciting this 1763. By that treaty, France ceded to article, proceeds to state, that "the first Great Britain the river and port of the consul of the French Republic doch Mobile, and all her possessions on the hereby cede to the United States, in left side of the river Mississippi, ex- the name of the French republic, forcept the town of New-Orleans and ever and in full sovereignir, the said the island on which it is situated : and territory, with all its rights and appurby the same treaty Spain ceded Flo- tenances, as fully and in the same man- . rida to Great Britain. The residue ner as they have been acquired by the of Louisiana was ceded by France to French republic, in virtue of the Spajn, in a separate and secret treaty above mentioned treaty concluded between those two powers. The king with his catholic majesiy.” The 4th of Great Britain being thus the ac- articie stipulates, that there shall be knowledged sovereign of the whole sent by the government of France a country east of the Mississippi, ex- commissary to Louisiana, to the end cept the island of New-Orleans, divi- thai he do every act necessary, as well ded his late acquisition in the south to receive from the officers of his ca
tholic majesty the said country, and has, that it had in the hands of France iis dependencies, in the name of the when she ceded it to my royal crown, French republic, if it has not been al- and such as it ought to be after the ready done, as to transmit it in the treaties which have successively taken name of the French republic to the place between iny states and those of commissary or agent of the United other powers." States.”
Previous to the arrival of the French On the 30th of November, 1803, commissioner, the governor of the Peter Clement Laussalt, colonial pre- provinces of Louisiana and West fect and commissioner of the French Florida, and the marquis de Casa republic, authorized by full powers Calvo, had issued their proclamation, dated the 6th of June, 1809, to receive dated the 18th of May, 1803 ; in which the surrender of the province of Loui- they say, “his majesty having before siana, presented those powers to Don his eyes the obligations imposed by Manuel Salcedo, governor of Loui- the treaties, and desirous of avoiding siana and West Florida, and to the any disputes that might arise, has marquis de Casa Calvo, commission- deigned to resolve that the delivery of ers on the part of Spain, together with the colony and island of New Orleans, full powers to them from his catholic which is io be made to the general of inajesty to make the surrender. These division Victor, or such other officer as full powers were dated at Barcelona may be legally authorized by the gothe 151h of October, 1802. The act of vernment of the French republic, shall surrender declares, that in virtue of be executed on the same terms that these full powers, the Spanish com- France ceded it to his majesty ; in missioners, Don Manuel Salcedo and virtue of which, the limits of both the marquis de Casa Calvo, “put shores of the river St. Louis or Misfrom this moment the said French sissippi, shall remain as they were ircommissioner, the citizen Laussalt, in revocibly fixed by the 7th article of possession of the colony of Louisiana the definitive treaty of peace, concluand of its dependencies, as also of the ded at Paris the toch of February, town and island of New-Orleans, in 1763, according to which the settlethe same extent which they now have, ments from the river Manshac or Iberand which they had in the hands of ville, to the line which separates the France when she ceded them to the American territory from the dominions royal crown of Spain, and such as of the king, remain in possession of they should be after the treaties subse. Spain, and annexed to West Florida." quently entered into between the states On the 21st of October 1808, conof his catholic majesty and those of gress passed an act to enable the preother powers.”
sident to take possession of the terriThe following is an extract from tory ceded by France to the United the order of the king of Spain referred States: in pursuance of which comto by the commissioners in the act of missioners were appointed, to whom delivery. “Don Carlos, by the grace monsieur Laussalt, the commissioner .of God," &c. “Deening it conve- of the French republic, surrendered nient to retrocede to the French re- New-Orleans and the province of public the colony and province of Louisiana on the 20th of December, Louisiana, I order you, as soon as the 1803. The surrender was made in present order shall be presented to you general terms; but no actual possesby general Victor, or other officer dulysion was taken of the territory lying authorized by the French republic, to east of New-Orleans. The governtake charge of said delivery ; you will ment of the United States, however, put himn in possession of the colony of soon manifested the opinion that the Louisiana and its dependencies, as whole country originally held by also of the city and island of New-Or- France, and belonging to Spain when leans, with the same extent that it now the treaty of St. Ildefonso was con
cluded, was by that treaty retroceded grants for lands within the territories to France.
ceded by the French republic to the On the 24th of February, 1804, con- United States by the treaty of the 30th gress passed an act for laying and col- of April, 1803, the title whereof was at lecting duties within the ceded territo- the date of the treaty of St. Ildefonso ries, which authorized the president, in the crown, government, or nation of whenever he should deem it expedient, Spain, and every act and proceeding to erect the shores, &c. of the bay subsequent thereto of whatsoever'naand river Mobile, and of the other ture, towards the obtaining any grant, rivers, creeks, &c. emptying into the title or claim to such lands, and under gulf of Mexico east of the said river whatsoever authority transacted or Mobile, and west thereof to the Pas- pretended, be, and the same are here. cagoula inclusive, into a separate dis by declared to be, and to have been trict, and to establish a port of entry from the beginning, null, void, and of and delivery therein. The port esta no effect in law or equity.” A problished in pursuance of this act was at viso excepts the titles of actual settlers fort Stoddert, within the acknowledged acquired before the 2014 of December, jurisdiction of the United States; and 1803, from the operation of this sec this circumstance appears to have tion. It was obviously intended to been offered as a sufficient answer to act on all grants made by Spain after the subsequent remonstrances of Spain her retrocession of Louisiana to against the measure. It must be con France, and, without deciding on the sidered, not as acting on the territory, extent of that retrocession, to put the but as indicating the American expo- titles which might be thus acquired sition of the treaty, and exhibiting the through the whole territory, whatever claim its government intended to as might be its extent, completely under sert.
the control of the Ainerican governIn the same session, on the 26th of ment. . March, 1804, congress passed an act T he president was authorized to aperecting Louisiana into two territo. point registers or recorders of lands ries. This act declares that the coun- acquired under the Spanish and try ceded by France to the United French governments, and boards of States south of the Mississippi territo- commissioners, who should receive all ry, and south of an east and west line, claims to lands, and hear and deterto commence on the Mississippi river mine in a summary way all matters at the 330 degree of north latitude, and respecting such claims. Their prorun west to the western boundary of ceedings were to be reported to the the cession, shall constitute a territory secretary of the treasury, to be laid beunder the name of the territory of Or- fore congress for the final decision of leans. Now the Mississippi territory that body. extended to the 31st degree of north Previons to the acquisition of Louilatitude, and the country south of that siana, the ministers of the United territory was necessarily the country States had been instructed to endeawhich Spain held as West Florida; vour to obtain the Floridas from but still its constituting a part of the Spain. After that acquisition, this territory of Orleans depends on the object was still pursued and the fact that it was a part of the country friendly aid of the French government ceded by France to the United States. towards its attainment was requested. No practicul application of the laws of On the suggestion of Mr. Talleyrand the United States to this part of the that the time was unfavourable, the territory was attempted, nor could be design was suspended. The governmade, while the country remained in ment of the United States, however, the actual possession of a foreign soon resumed its purpose ; and the power.
settlement of the boundaries of LouisThe 14th section enacts, “ that all siana was blended with the purchase of the Floridas, and the adjustment of to France, was scanned by the minis. heavy claims made by the United ters on both sides with all the critical Stales for American property, con- acumen which talents and zeal could demned in the ports of Spain during bring into their service. Every arguthe war which was terminated by the ment drawn from collateral circumtreaty of Amiens.
stances, connected with the subject, On his way to Madrid, Mr. Monroe, which could be supposed to elucidaie who was einpowered in conjunction it, was exhausted. No advance towith Mr. Pinckney, the American ini. wards an arrangement was made, and nister at the court of his Catholic ma- the negotiation terminated, learjesty, to conduct the negotiation, pass- ing each party firm in his original ed through Paris; and addressed a opinion and purpose. Each perseletter to the minister of exterior rela vered in maintaining the construction tions, in which he detailed the objects with which he had commenced. The of his mission, and his views respect- discussion has since been resumed being the boundaries of Louisiana. In tween the two nations, with as much his answer to this letter, dated the 21st ability, and with as little success. The of December, 1804, Mr. Talleyrand question has been again argued at this declared, in decided terms, that by bar, with the same talent and research the treaty of St. Ildefonso, Spain re- which it has umilormly called forth. troceded to France no part of the ter- Every topic which relates to it has ritory east of the Iberville which had been completely exhausted; and the been held and known as West Flori- Court by reasoning on the subject da; and that in all the negotiations be- could only repeat what is familiar 10 tween the two governments, Spain had all. constantly refused to cede any part of We shall say only, that the language the Floridas, even from the Vississip of the article may admit of either pi to the Mobile. He added, that he construction, and it is scarcely possible was authorized by his imperial majes to consider the arguments on either ty to say, that at the beginning of the side, witho':t believing that they proyear 1802, general Bournonville had ceed from a conviction of their truth. been charged to open a new negotia- The phrase on which the controversy lion with Spain for the acquisition of mainly depends, that Spain retrocedes the Floridas; but this project had not Louisiana with the same extent that been followed by a treaty.
it had when France possessed it, might Had France and Spain agreed upon so readily have been expressed in plain the boundaries of the retroceded terrin language, that it is difficult to resist tory before Louisiana was acquired by the persuasion that the ambiguity was the United States, that agreement intentional. Had Louisiana been rewould undoubtedly have ascertamed troceded with the same extent that it its limits. But the declarations of had when France ceded it to Spain, France made after parting with the or with the same extent that it had beprovince cannot be admitted as con- fore the cession of any part of it to clusive. In questions of this character, England, no controversy respecting its political considerations have too much limits could have arisen. Had the influence over the conduct of nations, parties concurred in their intention, a to permit their declarations to decide plain mode of expressing that intenthe course of an independent govern- tion would have presented itself 10 ment in a matter vitally interesting to them. But Spain has always maniitself.
fested infinite repugnance to the surSoon after the arrival of Mr Mon- render os territory, and was probably roe at his place of destination, the ne. unwilling to give back more than she gotiations cominenced at Aranjuez. had received The introduction of Every word in that article of the treaty ambiguous phrases into the treaty, of St. Ildefonso which ceded Louisiana which power might afterwards con