[Willson and others vs. The Black Bird Creek Marsh Company.]

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 act 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.

This cause came on to be heard on the transcript of the record from the high court of errors and appeals of the state of Delaware, and was argued by counsel; on consideration whereof this Court is of opinion, that there is no error in the judgment of the said high court of errors and appeals of the state of Delaware; whereupon it is considered, ordered and adjudged by this Court, that the judgment of the said court in this cause, be, and the same is, hereby affirmed with costs.

JAMES FOSTER AND PLEASANTS ELAM, PLAINTIFFS IN ERROR vs. DAVID NEILSON, DEFENDANT IN ERROR.

By the treaty of St Ildefonso, made on the 1st of October 1800, Spain ceded Louisiana to France; and France, by the treaty of Paris, signed the 30th of April 1803, ceded it to the United States. Under this treaty the United States claimed the country between the Iberville and the Perdido. Spain contended that her cession to France comprehended only that territory which at the time of the cession was denominated Louisiana, consisting of the island of New Orleans, and the country which had been originally ceded to her by France, west of the Mississippi.

The land claimed by the plaintiffs in error, under a grant from the crown of Spain, made after the treaty of St Ildefonso, lies within the disputed territory; and this case presents the question, to whom did the country between the Iberville and Perdido belong after the treaty of St Ildefonso ?

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 ascertained 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. [306] In a controversy between two nations concerning national boundary, it is scarcely possible that the courts of either should refuse to abide by the measures adopted by its own government. There being no common tribunal to decide between them, each determines for itself on its own rights; and if they cannot adjust their differences peaceably, the right remains with the strongest. The judiciary is not that department of the government, to which the assertion of its interests against foreign powers is confided; and its duty commonly is to decide upon individual rights, according to those principles which the political departments of the nation have established. If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous. [307] However individual judges might construe the treaty of St Ildefonso, it is the province of the Court to conform its decisions to the will of the legislature, if that will has been clearly expressed. [307]

After the acts of sovereign power over the territory in dispute, which have been exercised by the legislature and government of the United States, asserting the American construction of the treaty by which the government claims it; to maintain the opposite construction in its own courts would certainly be an anomaly in the history and practice of nations. If those departments which are entrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty; if the legislature has acted on the construction thus asserted; it is not in its own courts that this construction is to be denied. [309] If a Spanish grantee had obtained possession of the land in dispute so as to be the defendant, would a court of the United States maintain his title under a Spa

[Foster & Elam vs. Neilson.]

nish grant, made subsequent to the acquisition of Louisiana, singly on the principle that the Spanish construction of the treaty of St Ildefonso was right, and the American construction wrong? Such a decision would subvert those principles which govern the relations between the legislature and judicial departments, and mark the limits of each. [309]

The sound construction of the Sth article of the treaty between the United States and Spain, of 224 February 1829, will not enable the Court to apply its provisions to the case of the plaintiff. [314]

The article does not declare that all the grants made by his catholic majesty before the 24th of January 1818, shall be valid to the same extent as if the ceded territories had remained under his dominion. It does not say that those grants are hereby confirmed. Had such been its language, it would have acted directly on the subject, and it would have repealed those acts of congress which were repugnant to it; but its language is that those grants shall be ratified and confirmed to the persons in possession, &c. By whom shall they be ratified and confirmed? This seems to be the language of contract; and if it is, the ratification and confirmation which are promised must be the act of the legislature. Until such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject. [314]

A treaty is in its nature a contract between two nations, not a legislative act. It does not generally effect of itself the object to be accomplished, especially so far as its operation is infra-territorial, but is carried into execution by the sovereign power of the respective parties to the instrument. [314]

In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engage to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court. [314]

IN error to the district court of the eastern district of Louisiana.

The plaintiffs in error filed their petition in the district court setting forth, that on the 2d of January 1804, Jayme Joydra purchased of the Spanish government for a valuable. consideration, and was put in possession of a certain tract or parcel of land, situated in the district of Feliciana, thirty miles to the east of the Mississippi, within the province of West Florida, containing forty thousand arpents, having the marks and boundaries as laid down in the original plat of survey annexed to the deed of sale, made by Juan Ventura Morales then intendent of the Spanish government, dated January 2d, 1804, which sale was duly confirmed by the

[Foster & Elam vs. Neilson.]

king of Spain, by his resolves dated May 29, 1804, and February 20th, 1805.

May 17, 1805, Jayme Joydra sold and conveyed six thousand arpents, part of the said forty thousand, to one Joseph Maria de la Barba; and upon the same day, Joseph Maria de la Barba sold and conveyed three thousand arpents, parcel of the six thousand so purchased on the same day of Jayme Joydra, to one Francoise Poinet, for the consideration of $750. These three thousand arpents; situated in the district of Feliciana, about thirty miles east of the Mississippi; bounded on the north by the line of demarcation between the United States and the Spanish territory; on the west by lands of Manuel de Lanzos; on the east by the lands of the said Jayme Joydra; and on the south by the lands of the said Joseph Maria de la Barba.

In June 1811, Francoise Poinet, by her attorney, Louis Leonard Poinet, sold to the petitioners the said three thousand arpents, for the sum of $3200.

The petition then avers, that the three thousand arpents of lands justly and legally belong to them; and that nevertheless, David Neilson the defendant, a resident of the parish of east Feliciana in the state of Louisiana, had taken possession of the same, and refuses to deliver the same up.

On the 23d of March 1826, the defendant in the district court filed exceptions to the petition; and the questions before this Court arose out of the third exception, which was as follows:

That the petition does not show any right in the petitioners to the land demanded, which they aver lies in a district formerly called Feliciana, in the province of West Florida; and they claim under a grant made at New Orleans on the 2d of January 1804, and regularly confirmed by the Spanish government: whereas, as defendant pleads, all that section of territory called Feliciana was, long before the alleged date of said grant, ceded by Spain to France, and by France to the United States; and the officer making said grant had not then and there any right so to do, and the said grant is wholly null and void.

The judgment of the district court is founded on this ex

[Foster & Elam vs. Neilson.]

ception; and decides that the grant under which the plaintiffs claim, was made by persons having no authority, at the time of the grant, to grant lands within the territory within which the lands are situated; and dismisses the petition.

On behalf of the petitioners, the plaintiffs below, it was contended:

1. That Spain possessed full right and title, at the period of the date of the grant under which they claim, to grant the lands in question.

2. That the title of the petitioners is guarantied and confirmed by the treaty between the United States and Spain of February 22d, 1819.

The case was argued by Mr Coxe and Mr Webster for the plaintiffs in error; and by Mr Jones for the defendant.

Mr Coxe, for plaintiffs in error.

This is a petitory action, in the nature of an ejectment, brought by the plaintiffs in error, to recover a tract of land in the parish of east Feliciana in the state of Louisiana. The territory within which this property lies, may be designated in general terms as included between the Mississippi and Iberville to the west, the Perdido to the east, and south of the thirty-first degree of north latitude.

No objection has been interposed to the regularity, in point of form, of the original grant under which plaintiffs claimed title, or of the mesne conveyances from the original grantee to them. No title has been exhibited by the defendant; but having acquired the possession, he has rested his defence on the single ground of denying the validity of the grant, which lies at the foundation of the plaintiffs' title; and this objection is confined to the single point, that the authority of the Spanish government, from which that grant emanated, had terminated within the district of country, the boundaries of which have been indicated, anterior to the date of the grant.

The grant bears date in the years 1804 and 1805, and it is contended that, by the treaty of St Ildefonso between Spain and France in the year 1800, and the treaty between