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hanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved to the states. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance.

The counsel for the plaintiffs in er ror insist that it comes in conflict with the power of the United States " to regulate commerce with foreign nations and among the several states."

If congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to

control state legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern states; we should feel not much difficulty in saying that a state law coming in conflict with such act would be void. But congress has passed no such act. The repugnancy of the law of Delaware to the constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several states; a power which has not been so exercised as to affect the question.

We do not think that the art empowering the Black-Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject.

There is no error, and the judgment is affirmed.

James Foster & al. vs. David Neilson.

The facts in this cause are so particularly stated, in the opinion of the court, as to render any preliminary statement unnecessary.

The case was argued by Mr. Coxe and Mr. Webster for the plaintiffs, and by Mr Jones for the defendants.

Chief Justice Marshall delivered the opinion of the court.

This suit was brought by the plaintiffs in error, in the court of the United States for the eastern district of Louisiana, to recover a tract of land lying in that district, about thirty miles east of the Mississippi, and in the possession of the defendant. The plaintiffs claimed under a grant for 40,000 arpents of land, made by the Spanish governor, on the 2d of January, 1804, to Jayme Joydra, and ratified by the king of Spain on the 29th of May, The petition and order of survey are dated in September, 1805, and

1804.

the return of the survey itself was made on the 27th of October in the same year. The defendant excepted to the petition of the plaintiffs, alleging that it does not show a title on which they can recover; that the territory, within which the land claimed is situated, had been ceded, before the grant, to France, and by France to the United States; and that the grant is void. being made by persons who had no authority to make it. The court sustained the exception, and dismissed the petition. The cause is brought before this court by a writ of

error.

The case presents this very intricate, and, at one time very interesting question: To whom did the country between the Iberville and the Perdido rightfully belong, when the title now asserted by the plaintiffs was acquired?

discussed with great talent and research, by the government of the United States and that of Spain. The United States have perseveringly and earnestly insisted, that by the treaty of St. Ildefonso, made on the 1st of October, in the year 1800, Spain ceded the disputed territory as part of Louisiana to France; and that France, by the treaty of Paris, signed on the 30th of April, 1803, and ratified on the 21st of October, in the same year, ceded it to the United States. Spain has with equal perseverance and earnestness maintained, that her cession to France comprehended that territory only which was at that time denominated Louisiana, consisting of the island of New Orleans, and the country she received from France west of the Mississippi.

Without tracing the title of France to its origin, we may state with confidence that at the commencement of the war of 1756, she was the undisputed possessor of the province of Louisiana, lying on both sides the Mississippi, and extending eastward beyond the bay of Mobile. Spain was at the same time in possession of Florida; and it is understood that the river Perdido separated the two provinces from each other.

Such was the state of possession and title at the treaty of Paris, concluded between Great Britain, France, and Spain, on the 10th day of February, 1763. By that treaty, France ceded to Great Britain the river and port of the Mobile, and all her possessions on the left side of the river Mississippi, except the town of New-Orleans and the island on which it is situated and by the same treaty Spain ceded Florida to Great Britain. The residue of Louisiana was ceded by France to Spain, in a separate and secret treaty between those two powers. The king of Great Britain being thus the acknowledged sovereign of the whole country east of the Mississippi, except the island of New-Orleans, divided his late acquisition in the south

into two provinces, East and West Florida. The latter comprehended so much of the country ceded by France as lay south of the 31st degree of north latitude, and a part of that ceded by Spain.

By a treaty of peace between Great Britain and Spain, signed at Versailles on the 3d of September, 1783, Great Britain ceded East and West Florida to Spain: and those provinces continued to be known and governed by those names, as long as they remained in the possession and under the dominion of his catholic majesty.

On the 1st of October, in the year 1800, a secret treaty was concluded between France and Spain, at St. Ildefonso, the third article of which is in these words: "His catholic majesty promises and engages on his part to retrocede to the French republic, six months after the full and entire execution of the conditions and stipulations relative to his royal highness the duke of Parma, the colony or province of Louisiana, with the same extent that it now has in the hands of Spain, and that it had when France possessed it, and such as it should be after the treaties subsequently entered into between Spain and the other states."

The treaty of the S0th of April, 1803, by which the United States acquired Louisiana, after reciting this article, proceeds to state, that "the first consul of the French Republic doth hereby cede to the United States, in the name of the French republic, forever and in full sovereignty, the said territory, with all its rights and appurtenances, as fully and in the same man ner as they have been acquired by the French republic, in virtue of the above mentioned treaty concluded with his catholic majesty." The 4th article stipulates, that there shall be sent by the government of France a commissary to Louisiana, to the end that he do every act necessary, as well to receive from the officers of his ca

tholic majesty the said country, and its dependencies, in the name of the French republic, if it has not been already done, as to transmit it in the name of the French republic to the commissary or agent of the United States."

On the 30th of November, 1803, Peter Clement Laussatt, colonial prefect and commissioner of the French republic, authorized by full powers dated the 6th of June, 1803, to receive the surrender of the province of Louisiana, presented those powers to Don Manuel Salcedo, governor of Louisiana and West Florida, and to the marquis de Casa Calvo, commissioners on the part of Spain, together with full powers to them from his catholic majesty to make the surrender. These full powers were dated at Barcelona the 15th of October, 1802. The act of surrender declares, that in virtue of these full powers, the Spanish commissioners, Don Manuel Salcedo and the marquis de Casa Calvo, "put from this moment the said French commissioner, the citizen Laussatt, in possession of the colony of Louisiana and of its dependencies, as also of the town and island of New-Orleans, in the same extent which they now have, and which they had in the hands of France when she ceded them to the royal crown of Spain, and such as they should be after the treaties subsequently entered into between the states of his catholic majesty and those of other powers."

The following is an extract from the order of the king of Spain referred to by the commissioners in the act of delivery. "Don Carlos, by the grace .of God," &c. "Deening it convenient to retrocede to the French republic the colony and province of Louisiana, I order you, as soon as the present order shall be presented to you by general Victor, or other officer duly authorized by the French republic, to take charge of said delivery; you will put him in possession of the colony of Louisiana and its dependencies,_as also of the city and island of New-Orleans, with the same extent that it now

has, that it had in the hands of France when she ceded it to my royal crown, and such as it ought to be after the treaties which have successively taken place between my states and those of other powers."

Previous to the arrival of the French commissioner, the governor of the provinces of Louisiana and West Florida, and the marquis de Casa Calvo, had issued their proclamation, dated the 18th of May, 1803 ; in which they say, "his majesty having before his eyes the obligations imposed by the treaties, and desirous of avoiding any disputes that might arise, has deigned to resolve that the delivery of the colony and island of New Orleans, which is to be made to the general of division Victor, or such other officer as may be legally authorized by the government of the French republic, shall be executed on the same terms that France ceded it to his majesty; in virtue of which, the limits of both shores of the river St. Louis or Mississippi, shall remain as they were irrevocably fixed by the 7th article of the definitive treaty of peace, concluded at Paris the 10th of February, 1763, according to which the settlements from the river Manshac or Iberville, to the line which separates the American territory from the dominions of the king, remain in possession of Spain, and annexed to West Florida."

On the 21st of October 1803, congress passed an act to enable the president to take possession of the territory ceded by France to the United States: in pursuance of which commissioners were appointed, to whom monsieur Laussatt, the commissioner of the French republic, surrendered New-Orleans and the province of Louisiana on the 20th of December, 1803. The surrender was made in general terms; but no actual possession was taken of the territory lying east of New-Orleans. The government of the United States, however, soon manifested the opinion that the whole country originally held by France, and belonging to Spain when the treaty of St. Ildefonso was con

cluded, was by that treaty retroceded to France.

On the 24th of February, 1804 congress passed an act for laying and collecting duties within the ceded territories, which authorized the president, whenever he should deem it expedient, to erect the shores, &c. of the bay and river Mobile, and of the other rivers, creeks, &c. emptying into the gulf of Mexico east of the said river Mobile, and west thereof to the Pascagoula inclusive, into a separate district, and to establish a port of entry and delivery therein. The port established in pursuance of this act was at fort Stoddert, within the acknowledged jurisdiction of the United States; and this circumstance appears to have been offered as a sufficient answer to the subsequent remonstrances of Spain against the measure. It must be considered, not as acting on the territory, but as indicating the American exposition of the treaty, and exhibiting the claim its government intended to as

sert.

In the same session, on the 26th of March, 1804, congress passed an act erecting Louisiana into two territories. This act declares that the country ceded by France to the United States south of the Mississippi territory, and south of an east and west line, to commence on the Mississippi river at the S3d degree of north latitude, and run west to the western boundary of the cession, shall constitute a territory under the name of the territory of Orleans. Now the Mississippi territory extended to the 31st degree of north latitude, and the country south of that territory was necessarily the country which Spain held as West Florida; but still its constituting a part of the territory of Orleans depends on the fact that it was a part of the country ceded by France to the United States. No practicul application of the laws of the United States to this part of the territory was attempted, nor could be made, while the country remained in the actual possession of a foreign power.

The 14th section enacts, "that all

grants for lands within the territories ceded by the French republic to the United States by the treaty of the 30th of April, 1803, the title whereof was at the date of the treaty of St. Ildefonso in the crown, government, or nation of Spain, and every act and proceeding subsequent thereto of whatsoever`nature, towards the obtaining any grant, title or claim to such lands, and under whatsoever authority transacted or pretended, be, and the same are hereby declared to be, and to have been from the beginning, null, void, and of no effect in law or equity." A proviso excepts the titles of actual settlers acquired before the 20th of December, 1803, from the operation of this sec tion. It was obviously intended to act on all grants made by Spain after her retrocession of Louisiana to France, and, without deciding on the extent of that retrocession, to put the titles which might be thus acquired through the whole territory, whatever might be its extent, completely under the control of the American government.

The president was authorized to appoint registers or recorders of lands acquired under the Spanish and French governments, and boards of commissioners, who should receive all claims to lands, and hear and determine in a summary way all matters respecting such claims. Their proceedings were to be reported to the secretary of the treasury, to be laid before congress for the final decision of that body.

Previons to the acquisition of Louisiana, the ministers of the United States had been instructed to endeavour to obtain the Floridas from Spain. After that acquisition, this object was still pursued and the friendly aid of the French government towards its attainment was requested. On the suggestion of Mr. Talleyrand that the time was unfavourable, the design was suspended. The government of the United States, however, soon resumed its purpose; and the settlement of the boundaries of Louissiana was blended with the purchase of

the Floridas, and the adjustment of heavy claims made by the United States for American property, condemned in the ports of Spain during the war which was terminated by the treaty of Amiens.

On his way to Madrid, Mr. Monroe, who was empowered in conjunction with Mr. Pinckney, the American minister at the court of his Catholic majesty, to conduct the negotiation, passed through Paris; and addressed a letter to the minister of exterior relations, in which he detailed the objects of his mission, and his views respecting the boundaries of Louisiana. In his answer to this letter, dated the 21st of December, 1804, Mr. Talleyrand declared, in decided terms, that by the treaty of St. Ildefonso, Spain retroceded to France no part of the territory east of the Iberville which had been held and known as West Florida; and that in all the negotiations between the two governments, Spain had constantly refused to cede any part of the Floridas, even from the Mississippi to the Mobile. He added, that he was authorized by his imperial majes ty to say, that at the beginning of the year 1802, general Bournonville had been charged to open a new negotiation with Spain for the acquisition of the Floridas; but this project had not been followed by a treaty.

Had France and Spain agreed upon the boundaries of the retroceded territory before Louisiana was acquired by the United States, that agreement would undoubtedly have ascertamed its limits. But the declarations of France made after parting with the province cannot be admitted as conclusive. In questions of this character, political considerations have too much influence over the conduct of nations, to permit their declarations to decide the course of an independent government in a matter vitally interesting to itself.

Soon after the arrival of Mr Monroe at his place of destination, the negotiations cominenced at Aranjuez. Every word in that article of the treaty of St. Ildefonso which ceded Louisiana

to France, was scanned by the ministers on both sides with all the critical acumen which talents and zeal could bring into their service. Every argument drawn from collateral circumstances, connected with the subject, which could be supposed to elucidate it, was exhausted. No advance towards an arrangement was made, and the negotiation terminated, learing each party firm in his original opinion and purpose. Each persevered in maintaining the construction with which he had commenced. The discussion has since been resumed between the two nations, with as much ability, and with as little success. The question has been again argued at this bar, with the same talent and research which it has uniformly called forth. Every topic which relates to it has been completely exhausted; and the Court by reasoning on the subject could only repeat what is familiar to all.

We shall say only, that the language of the article may admit of either construction, and it is scarcely possible to consider the arguments on either side, without believing that they proceed from a conviction of their truth. The phrase on which the controversy mainly depends, that Spain retrocedes Louisiana with the same extent that it had when France possessed it, might so readily have been expressed in plain language, that it is difficult to resist the persuasion that the ambiguity was intentional. Had Louisiana been retroceded with the same extent that it had when France ceded it to Spain, or with the same extent that it had before the cession of any part of it to England, no controversy respecting its limits could have arisen. Had the parties concurred in their intention, a plain mode of expressing that intention would have presented itself to them. But Spain has always manifested infinite repugnance to the surrender of territory, and was probably unwilling to give back more than she had received The introduction of ambiguous phrases into the treaty, which power might afterwards con

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