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January 1, 1829


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 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 exception; 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 petitiory 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 France and the United States, of April 30, 1803, the territory in question became vested in the United States as a component part of Louisiana.

Whether such be the true interpretation and effect of these treaties, is the first question presented for consideration. It is a question which has for years been diplomatically discussed between the governments of Spain and the United States; and now comes before this Court to be finally settled judicially.

Much of the history of the early settlements of the territory in question, and the grounds upon which the claims of England, France and Spain rested, were presented and discussed in the cases of Henderson vs. Poindexter, 12 Wheat. 530, and Harcourt's lessee vs. Gaillard.

It may however be proper to remind the Court, that in point of fact, it appears that the earliest actual settlement made by the French in this district, was made under D'Iberville, at Dauphin island in the year 1699; and that at that period, and for some years previous, the English had formed settlements between the Mobile and the Mississippi, 4 N. Am. Rev. 76, N.S. Anderson's History of Commerce, Vol. III. 195, fixes it at 1698. On the 30th of June 1677, Charles II. made his second grant to the earl of Clarendon and others, which included this territory. 1 L. U. S. 465. Land Laws, 81.

The grant from Louis XIV. to Crouzat, bears date September 14th, 1712, thirty-five years subsequent to the English patent; and it sets forth that the original possession was taken of the territory in 1683, which is six years subsequent to the English grant. It may be remarked, however, that the possession to which allusion is made, was nothing more than a transient and rapid passage down the Mississippi, and vague as it was, in point of fact did not extend beyond the banks of the river.

This grant to Crouzat seems to have been generally considered as comprehending this debatable ground, but apparently without much reason. It distinctly limits the eastern extent by the lands of the English Carolina; and not only the grant of the Carolina, but the actual settlements under it extended much to the westward of the line to which France subsequently claimed to extend the eastern boundary of Louisiana.

The irreconcileable claims of England and France, in reference to the extent of their American possessions, gave rise to many and bloody controversies; and particularly to the war of 1756. Numerous discussions took place between the two crowns upon this subject, which it will be unnecessary to examine earlier than the war which terminated in their adjustment and settlement. In the negotiations which preceded the treaty of 1763, which are stated in 3 Jenkinson, 1174, it seems that France preferred her claim as far as the Perdido; and the answer of the British government to this claim will be found in its reply to the French ultimatum, September 1st, 1762, sec. 2. 3 Jenkinson, 148. It was deemed utterly inadmissible, because it would comprise extensive countries and numerous nations of Indians, who have always been reputed to be under the protection of the king.

This Court, in Johnson vs. M'Intosh, 8 Wheat. 581, has remarked, in reference to the controversies between France and Spain in relation to this same district of country, that 'the contests between the cabinets of Versailles and Madrid respecting the territory on the northern coast of the gulf of Mexico were fierce and bloody, and continued until the establishment of a Bourbon on the throne of Spain, produced such amicable dispositions in the two crowns as to suspend or terminate them.' And after giving a summary of those which occurred between France and England, it is observed that 'these conflicting claims produced a long and bloody war, which terminated by the conquest of the whole country east of the Mississippi.'

Pending that war, in which Spain had been induced to take part with France, the celebrated treaty was concluded between these two powers, which is entitled to notice in the present investigation. It was styled 'Pacto de Familia,' or, 'Parte de Famille;' and is usually known in England and the United States, under the appellation of the 'Family Compact.' It was signed August 15, 1761; ratified by France August 21, 1761; and by Spain, August 25, 1761(a).

(a) Collection de Tratados 115; Marten's Recueil des Traites, tom.i. p. 1. 3 Jenk. 70.

The 4th article embraces the great object of the treaty, 'qui attaque une couronne, attaque l'autre;' and the 18th, carrying it out into detail, provides that, 'en conformite de ce principe et de l'engagement contract e en consequence, leur majestes tres chretienne et catholique, sont convenues que lorsqu'ils s'agira de terminer par la paix la guerre qu'ils auront soutenue en commun, elles compenseront les avantages que l'une des deux puissances pourroit avoir eus, avec les pertes que l'autre auroit pu faire; de mani ere que sur les conditions de la paix, ainsi que sur les operations de la guerre; les deux monarchies de France et de l'Espagne, dans toutel' etendue de leur domination, seront regardes et agiront si elles ne formoient qu'une seule et m eme puissance.' This provision is necessary, to enable us to comprehend with precision, the motives which induced, and the construction which is to be given to subsequent acts.

The preliminary articles of the treaty of peace, between Great Britain, France, and Spain, were signed November 3d, 1762. On the same day, another treaty was executed between France and Spain, originating in, and designed to fulfil the stipulations of the 18th article of the family compact. Roch, in his Traites de Paix(b), furnishes the following statement of it. 'La Nouvelle Orleans, avec la Louisiane, situ e a l'ouest du fleuve Mississippi, fut ced ee aux Espagnols, par une convention secret e entre les deux cours de Versailles et de Madrid, sign ee le 3 de Novembre 1762, et qui n'a jamais et e imprim ee. Cette cession avoit pour motif de dedommager l'Espagne de la Floride, qu'elle abandonnoit a l'Angleterre par la trait e des preliminaires de Paris, sign ee le m eme jour. Les habitans Francois de la Louisiane n'eurent connoissance de cette cession que le 21 Avril 1764. Ils addresserent a le suject a la cour de France les plus vives reclamations, qui n'empecherent pas les Espagnols de prendre possession de cette colonie le 18 Aout 1769.'

(b) Tom. 3, p. 109.

This cession then grew out of the provisions of the preliminary treaty of the same date, and was designed to compensate Spain for the loss of Florida. It must be construed subordinately to that general treaty, and cannot modify or control its provisions.

Keeping these considerations in view, we may proceed to examine the preliminary treaties of the same date, which were finally consummated by the definitive treaty of February 10, 1763(c). The first fourteen articles relate to France and Great Britain: the six succeeding to Great Britain, her ally Portugal, and Spain. The 6th article establishes the boundaries between the English and French possessions, in the neighbourhood of the Mississippi, and so far as is material to this case, in the following words: 'The confines between the dominions of Great Britain and Spain, on the continent of North America, shall be irrevocably fixed by a line drawn along the middle of the river Mississippi, to its source, as far as the river Iberville; and from thence, by a line drawn along the middle of this river, and of the lakes Maurepas and Pontchartrain to the sea; and to this purpose the most christian king cedes in full right, and guaranties to his Britannic majesty the river and port of Mobile, and every thing which he possesses on the left side of the river Mississippi; except the town of New Orleans, and the island on which it is situated, which shall remain to France.' By the 19th article, 'his catholic majesty cedes and guaranties, in full right, to his Britannic majesty, all that Spain possesses on the east or the south east of the river Mississippi.'

(c) Colleccion de Tratados, 145. 2 Marten, 17. 3 Jenkins, 166.

A reasonable interpretation of these two treaties seems to conclude this question. Each party had been, nearly from the commencement of the century, claiming an almost interminable extent of territory; their claims were bringing them into constant collision with each other; these collisions had engendered the war which was about to be terminated. The parties had agreed, that their relative rights should be definitively and irrevocably adjusted, and natural boundaries were agreed upon, which it was supposed would preclude all future difficulty. England had been triumphant in the conflict; she had attained the objects for which she had commenced and had continued hostilities. During the negotiations for peace, she had avowed her determination. 3 Jenkins, 117. 'The limits of Canada with regard to Louisiana shall be clearly and firmly established, as well as those of Louisiana and Virginia; in such manner, that after the conclusion of peace there may be no more difficulties between the two nations with respect to the construction of the limits with regard to Louisiana, whether with respect to Canada or the other possessions of England.' In accomplishing this design, France relinquished the pretensions upon which she had before insisted to extend the limits of Louisiana to the eastward of the Mississippi; England yielded her empty and valueless claim, to carry the bounds of her Atlantic colonies to the Pacific; and to close all ground for future controversy, Spain ceded her possessions; and Great Britain became the unquestioned proprietor of all the territory lying to the eastward of the line designated in the 6th article.

France then, in ceding Louisiana to Spain, ceded a country, which, with the exception of the island of Orleans, lay exclusively to the westward of the Mississippi; she cedes it as Louisiana, and it is accepted as such. Both of these powers were estopped by these solemn acts from contending that Louisiana embraced the territory now the subject of consideration.

This treaty has received the consideration of this Court in Harcourt vs. Gaillard, 12 Wheaton, 524, where it was observed, 'the country of Florida, south of the 29th degree, was a conquest by Great Britain; and north of the 29th degree, and up the Mississippi was held as a part of her own territory, concerning which her treaties with France and Spain only established a disputed boundary.'

After England had thus acquired the title to Florida, and had adjusted by solemn compact the disputes as to boundary, she immediately erected these acquisitions into two governments, and designated them by the pames of East and West Florida; the boundaries of which are indicated in the proclamation of the British king in 1763. From that period until after the United States acquired Louisiana, this question was considered as at rest. The territory to the eastward of the Mississippi and the Iberville, the lakes Maurepas and Pontchartrain, were uniformly recognised as East and West Florida; that to the westward of the same line as Louisiana.

During the peace which preceded our revolutionary war, no question, or ground for question, existed. About the year 1781, Spain acquired by conquest possession of West Florida, which she retained under that name, not as part of Louisiana which then belonged to her, but as a territory which she had acquired by conquest from England the lawful proprietor, known only by the appellation of West Florida.

This possession thus acquired, was thus continued, jurebelli, until the termination of the war. By the 3d article of the preliminary treaty of peace, it was stipulated that his Britannic majesty should cede East Florida, and his Catholic majesty should retain West Florida. So also by the 5th article of the definite treaty of September 3d, 1783, his Britannic majesty cedes, in absolute property, to his Catholic majesty, as well East as West Florida, guarantying them. No boundaries are mentioned. The Floridas, known as such by both parties to the compact, are ceded by words of express grant. It is not an adjustment of disputed boundaries, but a cession of an absolute and perfect right.

The treaty of 1763, then, which this Court has considered as merely fixing a disputed boundary, still continued in force. The war had not affected this portion of its stipulations. 'Where treaties contemplate a permanent arrangement of territorial and other national rights, it would be against every principle of just interpretation, to hold them extinguished by the event of war.' Society, &c. vs. New Haven, 8 Wheaton, 494.

We may now briefly review some of the leading acts of all the powers concerned in the treaties of 1763 and 1783; to show that, uniformly and without exception, such has been their understanding of these compacts.

1. France considered the cession made by her to Spain as comprehending the entire province of Louisiana. The first public intimation of that cession is contained in the letter of the French king to Monsieur L'Abbadie(a), dated April 21st, 1764. It commences with these words: 'Monsieur L'Abbadie;–By a special act done at Fontainebleau, November 3d, 1762, of my own will and mere motion, having ceded to my very dear and best beloved cousin the king of Spain and to his successors in full property, purely and simply, and without any exceptions, the whole country known by the name of Louisiana, together with New Orleans and the island on which the said city is situated; and by another act done at the Escurial, November 13th in the same year, his catholic majesty having accepted the cession of the said country of Louisiana, and the city and island of New Orleans, &c.' This contemporaneous exposition of both parties to the treaty, before any other interests or rights had intervened, is entitled to grave consideration.

(a) 1 Laws of United States, 442.

2. So in regard to Spain. She had previously, as had England, endeavoured to confine French Louisiana to the western shore of the river; she had accepted a cession of that territory as comprehending 'the whole of Louisiana,' and from that period to the present has always so esteemed it. After she obtained possession of her newly acquired territory, she continued to hold it under the same name by the same limits. When by the treaty of 1783, she acquired the Floridas from England; it was under a new and distinct title, wholly independent of that by which she held Louisiana. The treaty designates it as East and West Florida. In all the subsequent controversies between Spain and the United States the same names are preserved. To many purposes it was a distinct government from that of Louisiana, though both belonged to the same monarch: it was sometimes a dependency upon Cuba(a); and when annexed, as it appears occasionally to have been, to the government of Louisiana, the executive magistrate was styled the governor of Louisiana and of West Florida.

(a) Land Laws, 46.

In the treaty of October 27, 1795, between Spain and the United States, the same distinction is recognised and retained. The 2d article thus declares: 'the southern boundary of the United States, which divides their territory from the Spanish colonies of East and West Florida, shall be designated by a line beginning on the river Mississippi, &c.' Art. 4th, 'It is likewise agreed that the western boundary of the United States, which separates them from the Spanish colony of Louisiana, is in the middle of the channel or bed of the river Mississippi, from the northern boundary of the said states to the thirty first degree of latitude north of the equator.' The 5th article is to the same purport.

Subsequently to the transfer of Louisiana to the United States, Spain has uniformly asserted the same principles; and has protested, in the most decided terms, against the pretensions of the American government, to extend their purchase to the Perdido. Governor Folch's letter to governor Claiborne, dated Pensacola, May 1, 1804, assumes the ground which has been uniformly maintained throughout the diplomatic discussions of this question.

3. It is scarcely necessary to recapitulate the various acts of Great Britain, by which she manifested and maintained her right to restrict the limits of Louisiana to the western shore of the Mississippi. Long before the treaty of 1763, this had been a fruitful source of discord between herself and France. The war of 1756 had grown out of the attempt by the latter to extend her two colonies of Canada and Louisiana(b). The grounds assumed by her in her subsequent negotiations, and the manner in which she succeeded in establishing them, have been already considered.

(b) 1 Marsh. Wash. 372. 383.

4. In this controversy, conducted in an American tribunal, it may well be deemed important to ascertain the views which have been taken and acted upon by our own government: and the result of this inquiry will show, that the United States have been as distinct as any nation, in asserting the principles for which the plaintiffs in error contend.

As early as the year 1779 the importance of this question was perceived. In the instructions then framed for Mr Jay, to conduct the negotiations with Spain which were entrusted to his charge, there is a distinct recognition of the Floridas, and an implied one of their extending to the Mississippi(c). In the following year congress prepared a statement of the claim of the United States to the western country as far as the river Mississippi(d), in which the subject is discussed, and the points now insisted upon strongly urged. The minister was instructed 'to insist upon the navigation of the Mississippi for the citizens of the United States, in common with the subjects of his catholic majesty, as also on a free port or ports below the northern limit of West Florida.' Reference is made to the treaty of 1763, as having fixed the river Mississippi as the boundary between the United States and the Spanish settlements; and it is strongly urged, that the United States are entitled to the benefit of the cession made by Spain to Great Britain. In 1791, the secretary of state made a report on the subjects of controversy between the two governments, in the course of which these matters are again considered and pressed(a). 'Our right to navigate the Mississippi, from its source to where our southern boundary strikes it, is not questioned. It is from that point downwards only, that the exclusive navigation is claimed by Spain; that is to say, where she holds the country on both sides, to wit, Louisiana on the west, and Florida on the east.' Again, 'Florida was ceded by Spain, (by the treaty of 1763,) and its extent westwardly was fixed to the lakes Pontchartrain and Maurepas and the river Mississippi.' 'We had a common right of navigation in the part of the river between Florida, the island of Orleans, and the western bank.' 'If we appeal to the law of nature and nations, as expressed by writers on the subject, it is agreed by them, that were the river, where it passes between Florida and Louisiana the exclusive right of Spain,' &c.

(c) 2 Pitk. Hist. 511.

(d) 2 Id. 512.

(a) 1 Diplomacy of the United States 236.

Reference has been already made to the provisions of the treaty of 1795, as conclusive upon both governments; and it may be added, that in the negotiations which preceded that treaty, as well as in the measures of both nations in carrying its stipulations into execution, by running the line agreed upon, West Florida, as belonging to Spain, is uniformly considered as extending to the Mississippi, and Louisiana as confined to the western side of the line designated in the treaty of 1763.

It thus appears, that from the earliest periods of colonial history, Great Britain and Spain had insisted that Louisiana did not extend eastwardly beyond the Mississippi; that France finally yielded her pretensions by the treaty of 1763; and that from that period this question had been considered as settled and at rest, not only by all the parties to that compact, but especially by the United States.

The next important document to be examined is the treaty of St Ildefonso, of October 1st, 1800, between Spain and France. One article of this treaty alone has been communicated to the public, and that will be found recited in the treaty between France and the United States, of April 30th, 1803(b), the first article of which is in these words, 'whereas by the article the third of the treaty concluded at St Ildefonso the 9th Vindemiare, an. 9, (1st October 1800,) &c. it was agreed as follows: 'his catholic majesty promises and engages on his part to retrocede to the French Republic, &c. &c. the colony or province of Louisiana, with the same extent it now has in the hands of Spain, and that it had when France possessed it, and such as it should be (telle qu'elle doit etre) after the treaties subsequently entered into between Spain and other states.' And whereas in pursuance of the treaty and particularly of the third article the French Republic has an incontestable right to the domain and to the possession of the said territory; the first consul of the French Republic desiring to give to the United States a strong proof of his friendship, doth hereby cede to the said 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 manner as they have been acquired by the French Republic, in virtue of the above mentioned treaty concluded with his catholic majesty.'

(b) Land Laws 42; 1 Laws United States 134.

It will not be pretended that this language is free from ambiguity; and the probability is, from an anecdote related by one of the negotiators Barb e Marbois, in his recent work on the subject of Louisiana, that it was not accidental. It is now contended that this article reopens all the questions settled by the treaty of 1763, and acquiesced in by all parties from that period. Louisiana is no longer confined within the limits there prescribed, and Florida is to be reduced down to what France and England had before insisted was properly included within that name.

It will be remarked that France cedes to the United States what Spain had retroceded to her, upon the same conditions and subject to the same stipulations which were contained in the treaty of St Ildefonso. To that treaty reference must therefore be had to ascertain the extend of this cession. The term retrocede would seem to limit it to what had been before ceded; such is the natural and most obvious signification of the term. In this sense it is used by this Court in Johnson vs. M'Intosh, 8 Wheaton, 584, where it is said, 'France ceded Louisiana to Spain, and Spain has since retroceded the same country to France. At the time both of its cession and and retrocession, &c.'

But it was the province of Louisiana: was it ceded as France claimed it prior to 1763, with an extension of limits dictated by political ambition and future aspirations, rather than by actual occupancy; with vague and undefined boundaries, which had been contested by Spain in one quarter and by England throughout nearly their whole extent, or with the boundaries solemnly and deliberately settled and recognised by treaty, the concurrent act of all the parties interested? Was it that Louisiana which an ambitious monarch claimed to extend so far to the north and east as to be intimately connected with the Canadas, and to confine the English possessions between the ocean and the Alleghany; or such as it was admitted to be when these lofty pretensions were abandoned, and its limits clearly and for the first time defined? Had the subsequent transfer to the United States never been made, our interest and our policy would have dictated an answer to these interrogatories, which reason would have sanctioned, and which argument would have confirmed. We never for a moment should have yielded to a pretension which went to unsettle our western boundary and title throughout the whole extent of the Ohio and Mississippi. But the whole character of the controversy was changed by our acquiring a new interest; and we, by virtue of the cession of Louisiana to us, claimed to the full extent of the wildest pretensions of France when in the plenitude of her power; pretensions obsolete, unwarranted, and long since formally surrendered.

But these several forms of specification are annexed to the terms of cession, and these specifications, it is submitted, were introduced with a view to limit and restrict, not to extend the generality of the previous language. 1. With the same extent that it now has in the hands of Spain. 2. And that it had when France possessed it. 3. And such as it ought to be after the treaties subsequently entered into between Spain and other countries. Such is the language of the treaty of St Ildefonso, to which the United States was no party.

1. With the same extent that it now has in the hands of Spain. We have seen that Spain from a very early period resisted the extension of Louisiana to the eastward of the Mississippi: that she was a party to the treaty of 1763, with England, then owning the Floridas, which in this country has been judicially and diplomatically considered as fixing the limits of that colony. She had acquired possession of Louisiana, in 1769,–of the whole country haying that appellation; but still, with the boundaries which had been settled. When she acquired the Floridas in 1783, no change of limits was introduced. In her treaty with the United States, in 1795, they are recognised by both parties as still subsisting. When then did Spain possess the territory in question, under the name of Louisiana? Never. The first specification then fails our opponents; and these three clauses must be considered as cumulative and concurrent; all must be complied with.

2. That it had when France possessed it. What period is referred to? Did it mean at the period when the enterprising La Salle first descended the Mississippi, which the French considered the first possession; or when a few adventurers endeavoured to establish a settlement at Biloxi, which was speedily abandoned; or when her restless monarch, stretching his influence from the northern lakes to the Gulf of Mexico, was labouring to effectuate his gigantic project of attaining the ascendancy over the entire continent? Or, was that period referred to, when compelled to surrender these lofty pretensions, she compromised with her opponents, and fixed irrevocably the bounds of her American dominions? Unquestionably, the latter. Such were the limits fixed by all the parties in interest, in 1762, 1763. It has been objected that France never did possess Louisiana to this limited extent; that she ceded it to Spain on the same day on which the preliminaries were signed, and consequently never had any title to the country with these defined boundaries. But the cession to Spain was made by a secret treaty, which has never to this day been published to the world, and which was not known to be in existence until April 1764, nor carried into execution by the transfer of possession, until August 1769. From the autumn of 1762 until August 1769, a period of near seven years, France was in possession of Louisiana, with these ascertained and settled limits; and at no other period of time were the bounds either of her settlements or her claims defined, even by herself. To this period then, this clause of the treaty must have had reference, and this construction, and this alone, will reconcile the different clauses with each other; with what is reasonable, or what is honest.

3. Such as it ought to be after the treaties subsequently entered into between Spain and other countries. It may well be doubted whether this phrase has, or was intended to have any reference to the subject of boundary. It may more reasonably be understood to look to those stipulations which Spain had made with other nations, particularly with the United States; conceding to us the free navigation of the Mississippi, and a right of deposit at New Orleans.

If, however, it be considered as referring to the subject of boundary, what construction can it receive? Subsequently to the possession of France, Spain had entered into but two treaties which can in any manner affect the question: That of 1783, in which Great Britain ceded the Floridas to her, by virtue of which in her negotiations with the United States she claimed to carry her rights up the Mississippi, as far north as the mouth of the Yaroo; but never urged, as the proprietor of Louisiana, any rights to the eastward of the Mississippi. The treaty of 1795, already cited, was the second treaty which Spain had made, and that, as has been shown, expressly recognises the Mississippi as the common boundary of Louisiana and West Florida.

With these three clauses of description, of limitation, not of enlargement, was this territory ceded to France in 1800. Should doubts still exist as to its extent, it is reasonable that we should be allowed to remove them, by reference to the contemporaneous acts of all parties. The treaty of St Ildefonso appears to have been signed on the 1st of October 1800. The diplomatic history of our own government shows that the negotiations with France, which terminated by our acquisition of Louisiana, commenced in January 1803, and that the result was not known in the ceded country until a late period in that year. The royal order from the king of Spain for the delivery to France, was issued at Barcelona, October 15, 1802. It directs the delivery to be made to general Victor or other officer authorised by the French republic; and he is to be put 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, &c.' On the 18th of May 1803, Don Manuel de Salcedo, the governor of the provinces of Louisiana and West Florida, and the Marquis de Casa Calvo, who were the commissioners to deliver the possession to the French authorities; issued their proclamation announcing the fact of cession, and that the treaty was to be 'executed in the same terms that France ceded it to his majesty, in virtue of which the limits on 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 on the 10th of February 1763, according to which the settlements from the river Manchac or Iberville, to the line which separates the American territory from the dominions of the king, are to remain under the power of Spain, and annexed to West Florida.'

The final act of delivery to the French commissioner, is dated November 30, 1803, and purports to transfer the possession 'of Louisiana and its dependencies, as also of the city and island of New Orleans, to the same extent which they now possess, and which they had in the hands of France when she ceded them to the crown of Spain.' These three documents have recently been submitted to congress in a communication from the president, and will shortly constitute a part of the history of the nation. The two first, which are very explicit, bear date when it was not supposed that this country would have an interest in the subject. They may be regarded as the contemporaneous exposition by both France and Spain of the language of the treaty of cession. No other power deriving interests under them, or either of of them, can question the construction which they have agreed to place upon their own agreement.

But the United States did accept a delivery of this same country as a full and complete execution of the treaty with France, and recognized by the public act of their commissioners, of December 20, 1803, the full performance by Spain of the treaty of St Ildefonso, and by France of her engagements in the treaty of the preceding April. Two separate conventions between the United States and France were executed on the same day with the treaty of cession. The first of these (1 L. U. S. 140) stipulates for the payment of the consideration money for the purchase of Louisiana. The second article of this convention, and the third of the second, make the payments to fall due after the possession of Louisiana shall be given. By making the payments, we acknowledged that France had fully complied with the engagements to put us in possession.

The general principles of law may with propriety be referred to, as furnishing the best and safest guides in the interpretation of public as well as private compacts. Both France and Spain have derived their jurisprudence from the civil code, and among all of them this general rule will be found. 'The obscurities and uncertainties of obligatory clauses, are to be interpreted in favour of the party who obliges himself: and the obligation must be restricted to the sense which lessens the obligation; for he who obliges himself, does it as little as he can, and if the other party is not satisfied, he is bound to require a clearer and fuller explanation of the meaning of the clause*fn1 (k)

The conclusion then to which we are brought by all these different views of the subject is the same; and it is confidently submitted, that by no fair interpretation of the language of the treaty of St Ildefonso, can it be understood to have conveyed to France any portion of what was known and occupied as West Florida; and that no portion of it was ceded to the United States under the name of Louisiana.

Should it appear, however, that we have misapprehended the force of the arguments which have been presented, we claim the judgment of the Court upon other grounds.

From the year 1804 the United States claimed to give such a construction to the two treaties that have been considered, as would pass the title to the country east of the Mississippi as far as the Perdido. This claim was, however, confined to diplomatic discussion; it was not made public, no notice of it was communicated to the world, nor was it manifested by any overt act or proceeding. Until the year 1810 nothing was done to enforce this claim. During this interval, while Spain continued in the full and entire exercise of her sovereign authority over this territory, unquestioned, so far as the world could know, the grant in question was concluded; the title of the plaintiffs emanated from this sovereign, de facto. In our recent controversy with Great Britain, in relation to the north eastern boundary, it appears to have been agreed by both parties to be a fundamental principle of public law and of common justice, that the acts of a sovereign power over the territory which it has ceded, are lawful until possession has been transferred(a). This principle has been recognised by various acts of congress, which admit the validity of grants made by France and Spain, both in the lower and upper Louisiana, up to the day when formal possession was taken by the American authorities. Upon this principle the validity of this title might be safely placed. It would be the height of injustice, for the government of the United States to annul all grants made by the Spanish functionaries, during the time that Spain occupied the country, virtually by our permission and under a claim of right.

(a) Mr Clay to Mr Vaughan, 17th March 1828.

In the year 1810, after Spain had become the scene of turbulence and revolution, and the reins of government over her colonies had dropped from her hands, when various movements were made in the Floridas, which threatened danger and inconvenience to us; the President of the United States issued a proclamation, by virtue of which this territory was occupied by the American troops. This proclamation, dated October 27, 1801, (5 Wait's State Papers,) although it asserts the right of the United States to the territory in question, represents it as a subject of discussion and controversy between the two governments; places the act upon the ground of an amicable proceeding, rendered necessary by the subversion of the Spanish authority; and asserts, that in the hands of the United States it would still continue 'the subject of fair and friendly negotiation and adjustment.' It did continue the subject of much discussion, until all the differences between the two nations were terminated by the treaty of February 22, 1819(a). By the second article of this treaty, his catholic majesty cedes to the United States, in full property and sovereignty, all the territories which belong to him, situated to the eastward of the Mississippi, known by the name of East and West Florida. By the 8th article, all the grants of lands made before the 24th 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.'

(a) Land Laws 53.

This is by its terms, so far as relates to these articles, a treaty of cession. The first article so purports to be; the second purports to fix limits, but its provisions are expressly confined to the territories west of the Mississippi. The preamble sets forth, that the two parties have agreed ...

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