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 recognizes the Mississippi as the common boundary of Louisiana and West Florida. under them, or either 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 [*272 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 favor 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. Domat, Lib. I. tit. 1, sec. 2. No. 15; 1 Pothier on Oblig. (En. Ed.) 52, 7th rule. 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 cotemporaneous 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 authorized 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, etc." On the 18th of May, 1803, Don Manuel de Salcedo, the Governor of the provinces of Louisiana and West Florida, and the Marquis 271*] *de Casa Calvo, who were the commissioners to deliver the possession to the French authorities, issued their proclamation announcing the fact of the 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. From the year 1804, the United States The final Act of delivery to the French com- claimed to give such a construction to the two missioner, is dated November 30, 1803, and treaties that have been considered as would purports to transfer the possession "of Louisi-pass the title to the country east of the Misana and its dependencies, as also of the city sissippi as far as the Perdido. This claim was, and island of New Orleans, to the same extent however, confined to diplomatic discussion; it which they now possess, and which they had was not made public, no notice of it was comin the hands of France when she ceded them municated to the world, nor was it manifested to the crown of Spain." These three docu- by any overt act or proceeding. Until the ments have recently been submitted to Con- year 1810 nothing was done to enforce this gress in a communication from the President, claim. During this interval, while Spain conand will shortly constitute a part of the his- tinued in the full and entire exercise of her tory of the nation. The two first, which are sovereign authority over this territory, unvery explicit, bear date when it was not sup- questioned, so far as the world could know, posed that this country would have an interest the grant in question was concluded; [*273 in the subject. They may be regarded as the the title of the plaintiffs emanated from this contemporaneous exposition by both France | sovereign, de facto. In our recent controand Spain of the language of the treaty of versy with Great Britain, in relation to the cession. No other power deriving interests | northeastern boundary, it appears to have been 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. ciently comprehensive; they embrace "all the territories which belonged to the King of Spain eastward of the Mississippi, known by the name of East and West Florida." agreed by both parties to be a fundamental | the general terms of cession; they are suffiprinciple 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 transfered. (Mr. Clay to Mr. Vaughan, 17th March, 1828.) This principle has been recognized 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. 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. Land Laws, 53. By the second article of this treaty, His Catholic Majesty cedes to 274*] *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. 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 "to settle and terminate all their differences and pretensions by a treaty." One of the most interesting of these differences respected the country lying between the Mississippi and the Perdido. Each party had pretensions to it; those pretensions had been warmly urged; numerous private rights were dependent upon the decision of them. All these matters were either settled by the treaty, or they still remain open. If settled, it is by Had this territory continued under the power of Spain, had the United States not in 1810 occupied it by force of arms, no room for controversy would have existed. Can that act of occupation, preceded by the proclamation of Mr. Madison, followed up by similar declarations, that it was not in any manner designed to preclude discussion, but to leave the question of title for subsequent adjustment unaffected by this procedure, in any manner change the relative rights of the parties, or vary the construction to be given to the treaty of i819? Nor can our own municipal proceedings be resorted to, to aid in interpreting the treaty. Spain is not to be affected by our legislative or executive acts; *and if [*275 anything of that kind is resorted to for the purpose of affecting the interests of her, or of her grantees, this government will stand condemned as guilty of a gross breach of good faith, and of a positive fraud upon the other contracting party. A reference to the correspondence between the parties to the negotiation will show that such was not their design. On the 24th October, 1818, Don Onis, the Spanish Minister, communicated to Mr. Adams, the American Secretary of State, his project for this stipulation in the treaty, and he proposed to cede, “in full property and sovereignty, the provinces of East and West Florida, with all their towns and forts such as they were ceded by Great Britain in 1783, etc." The answer of Mr. Adams to this communication is not published among the documents transmitted to Congress on the 7th December, 1818, but was afterwards made public. It will be found to contain the following explicit language: "The uselessness of any stipulation on the subject of this first proposition is further demonstrated by the nature of the second, in which you announce your authority to cede all the property and sovereignty possessed by Spain in and over the Floridas. The effect of this measure being necessarily to remove all causes of contention between the contracting parties with regard to the possession of those territories, and to everything incidental to them, it would be worse than superfluous to stipulate for restoring them to Spain in the very treaty by which they are to be ceded in full sovereignty and possession to the United States." And in a subsequent part of the same communication it is also said in reference to the stipulations of a former treaty, "whatever relates in them to limits or to the navigation of the Mississippi has been extinguished by the cession of Louisiana to France, and by her to the United States, with the exception of the line between the United States and Florida, which will also be annulled by the cession of Florida, which you now propose." The project of the treaty delivered by Don Onis under date of the 9th February, 1819, and the counter project of Mr. Adams on the 13th of the same month, will be found in *the [*276 papers communicated by the President to Congress on the 7th December, 1819; and in p. 50 of the same documents will be found the 1829 FOSTER AND ELAM V. NEILSON. remarks of M. de Neuville, who was active in But the language of the treaty would seem was If this, then, be the true exposition of the treaty, the language of the 8th article would That provides seem conclusive upon the case. that "all the grants of land made before the 24th of 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." No distinction is made between that part of West Florida which we occupied in 1810, and that which still under the authority of 277*] continued Spain. All are put upon the same foot; all is ceded; and all grants throughout the whole are confirmed. In De la Croix v. Chamberlain, 12 Wheat. 599, this court remarked, "if the United States and Spain had settled this dispute by treaty before the United States extinguished the claim of Spain to the Floridas, the boundary fixed by such treaty would have concluded all parties. But as that was not done, the United States have never, so far as we can discover, distinguished between the concessions of land made by the Spanish authorities within the disputed territory while Spain was in the actual possession of it, and concessions of a similar character within the acknowledged limits." It was strenuously insisted in the court below, and we are apprised that the same point will be again pressed, that the judicial tribunals of the United States are precluded from investigating this question, and giving a different construction to these treaties from that which they have received from the executive and legislative departments of the government. We apprehend that the question before the court is one of a purely legal kind. In a re ister and our own executive upon the subject But have these departments of the govern- In reference to the Acts of Congress it may well be questioned whether any mere munici pal act of domestic legislation can be legitimately appealed to for the purpose of aiding in the interpretation of treaties. They were unknown to Spain; she was in no manner bound But it is by no means apparent that any by them, nor ought they to possess this effect. such language was used, or any such intention entertained by Congress. Nearly all their of occupation in 1810, and should be construed legislation on the subject grew out of the Act in subordination to the language of the President's proclamation. A careful examination of these acts will show a cautious and guarded avoidance of this question. The Act of March 26th, 1804, 3 Laws United States, 603, sec. 1, declares "that all that portion of country ceded name of Louisiana, which lies south of the by France to the United States under the line to commence on the Mississippi River at Mississippi Territory, and of an east and west the 33d degree north latitude and to extend west to the western boundary of said cession, shall constitute a territory of the United States under the name of the Territory of Orleans." Sec. 12. "The residue of the Province of Louisiana shall be called the District of Louisiana." The Act of February 20, 1811, provides in or territory country that part of the first section, "That the inhabitants of ali the 423 279*] *ceded under the name of Louisiana, etc., contained within the following limits:" the first lines are to the westward of the Mississippi, which river is reached at the 33d degree north latitude; "thence down the said river to the rive Iberville, and from thence along the middle of the said river and lakes Maurepas and Pontchartrain to the Gulf of Mexico." The Act of April 8, 1812, for the admission of the State of Louisiana into the Union, in its first section prescribes the same limits. The Act of April 14, 1812, is the first which professes to legislate directly upon this tract of country, and in enlarging the limits of Louisiana so as to embrace a portion of it, it styles it "all that tract of country comprehended within the following bounds," no longer employing the phraseology before applied to the undisputed country; "all that part of the territory or country ceded under the name of Louisiana." The Acts annexing other portions of this territory to Mississippi and to Alabama are equally guarded in their terms; nor am I aware of any one Act of Congress which in precise and positive language calls this country a part of that which was ceded to us under the name of Louisiana. This great and interesting question which has heretofore been discussed diplomatically between the representatives of the two nations, where interests were involved in it, upon grounds of policy and national interest, is now presented for decision as a merely legal question. It has ceased to be a national controversy, and has assumed a shape peculiarly fitted for this tribunal. The point, then, for the decision of the court is, whether the plaintiffs, by their petition and the documents annexed, exhibit a prima facie right and title to the lands demanded by them; or according to the specific objection made by the defendant, had the Spanish Governor of Louisiana any right on the 2d of January, 1804, at New Orleans, to make this grant to Jayme Jorda, of 40,000 arpents, or is it in any way confirmed by any laws of the United States or of the State of Louisiana? This question is to be solved by deciding what were the limits or boundaries of the territory ceded by Spain to France in 1800, and by France to the United States in 1803, under the name of Louisiana. The district of country within which the lands claimed are situated, did not form part of the territory erected into a State, under the name of Louisiana. This Act passed February, 1811. In April, 1812, Congress passed an Act enlarging the limits of the State; and the parish of Feliciana, within which these lands are, forms a part of this district. *This has more the appearance of a [*281 question of fact than of law; but the parties have treated it as of the latter character, as resting on facts of a public and notorious nature, of which courts will take notice without proof. The divisions, districts and boundaries of a country, are as much a matter of law as the existence of the government, and of the court itself. Starkie's Ev. Part. III. 410-428; Part. II. 164. The question raised seems, moreover, to belong rather to politics than law; it rests upon The ultima ratio legis is to be the arbiter, the construction of a treaty, and of the coninstead of the ultima ratio regum. No destruction of a treaty as a general question, partment of the government can take exception at a decision in favor of the plaintiffs, and it is confidently hoped that if the treaties according to their fair construction (the supreme laws of the land) by a just interpretation can sanction their title, it will here find its confirmation. Mr. Jones, for the appellees: This case comes up for decision on the third 280*] exception, *taken by the respondent in the court below, which was sustained in that court, and the petition of the appellant there discussed. That exception was as follows: "For that the petitioners do not set forth any right of recovery of the land demanded by them, for that they allege that the land demanded by them lies in a district formerly called Feliciana, within the late Province of West Florida, and petitioners claim under a grant made by the Spanish Governor of land situated in said district, to the person under whom they allege that they derive title, at New Orleans, on the 2d of January, 1804, and subsequently confirmed by the Spanish government; whereas, all that section of country which was formerly called Feliciana, was long before the alleged date of said grant, ceded by the government of Spain to the government of France, and by the government of France to the United States; and the grant aforesaid is null and void, and has no effect whatever, and the officers making the same had not then and there any right or authority so to do." the government is the best judge; and where the government has decided upon a line of construction, there would be great embarrassment, and ought to exist very paramount reasons, even with all the power and control given to courts under our very peculiarly organized federation, to warrant their departure from the construction given by the government. The defendant then insists, and it is the first line of defense which he raises against the attack of the plaintiffs: 1. That it has been long since settled and established by the government of the United States, that the territory in question was ceded by Spain to France in 1800, by France to the United States in 1803; and that the courts of the United States are bound by this interpretation of that treaty. The Act authorizing the President of the United States to take possession, or the Act erecting Louisiana into a territory, cannot of themselves, and without the aid of extrinsic facts, decide the matter, becauses they nowhere recognize any specific limits of Louisiana; but by what authority other than the treaty of 1803, and the construction contended for by the appellee, and adopted by the government, was Mobile taken possession of in 1804, and erected into a separate revenue district, immediately on the ratification of the treaty? Act of Congress of 24th February, 1804, sect. 11; Proclamation of the President, 27th October, 1810; State Papers, Vol. V. Again, when in 1812 Congress annexed this very territory to Louisiana. then already a State, could anything more decisively mark and ascertain the clear construction and inter282*] pretation *of Congress, that this district of country was ceded by Spain to France in 1800, and by France to the United States in 1803-can the courts of the United States, after such conclusive evidence of the acts of the government, consider the question as open, whether this territory was thus ceded or not? From the acquisition of Louisiana in 1803, to the period of the conclusion of the treaty with Spain, by which Florida was ceded to the United States, there has been an uninterrupted series of legislative acts affecting the territory, which the appellants say remained the property of Spain until the Florida treaty. Ĉited, Acts of Congress 2d March, 1805; 21st April, 1806, 31 March, 1807; 3d March, 1811; 12th December, 1811; 25th April, 1812; 12th and 18th April, 1814; 3d March, 1819; 11th May, 1820; 8th May, 1822; 27th February, 1814. are established to require elaborate illustration. Under this point of view it is conceived that this court is concluded from entertaining any other opinion than that which has already been expressed by the government and all its citizens, except those few whose private interest induces them to cling to an exploded fallacy. 2. It is now secondly urged that the plaintiffs are estopped by their own petition from alleging that the territory in question was not ceded by the treaty of 1803. In order to give jurisdiction to the court they were obliged to allege that the parish in which the immovable claimed by them lies, is within the State of Louisiana, which is the jurisdictional limit of the court. If within its jurisdictional limits, how and when did it become so? Feliciana was, as defendant insists, made part of Louisiana in 1812; but if not ceded till 1819 no law or Act has been passed since that time, annexing it to, and constituting it part of the State of Louisiana, and the court below had not jurisdiction over the *subject. The [*284 allegations of the plaintiff and his reasonings are thus destructive of each other. 3. The defendant contends that if the question is gone into, historical facts and the official acts of the French and Spanish governments, and a just interpretation of the treaties of 1800 and 1803, establish conclusively that the Colony or Province of Louisiana was ceded to the United States, with an extent which reached on its eastern boundary to the river Perdido, and included the district in which the lands that plaintiffs claim is situated. The State papers containing the correspondence of our ambassadors, Mr. Pinkney and Mr. Monroe, with the Spanish ministers, embrace nearly all that can be said upon the subject. See State Papers, Vol. XII. p. 15 to 81, and 197 to 280. To reduce the matters there stated to some order, and to add what has since transpired, is all that will be undertaken. The object of any deduction of facts on this subject is to show that France at some time possessed the territory in question under the name of Louisiana; if this point is established there is an end of the controversy, for Spain was bound by the treaty of St. Ildefonso, made in 1800, to restore to France whatever territory was in her possession, which France had at any time held under the name of Louisiana. This is too obviously its meaning to require to be dilated upon. The words of that treaty are: "His All these various Acts of Congress clearly recognize the interpretation, that the territory in question was ceded to the United States by the treaty of Paris in 1803; and the Act of 25th April, 1812, legislates on the subject of this identical territory by description, viz., territory east of the island of Orleans, and west of the Perdido; and yet the position taken by the plaintiffs in this case, calls upon this court to decide that this territory formed no part of the United States until it was annexed to it by the treaty of Washington of 22d February, 1819. Hundreds if not thousands of certificates have been issued by the land commissioners to individuals under the Acts of 1819, 1822, and 1825, conferring titles, as against the United States, to lands lying within this territory, and covered by grants similar to the plaintiff's. The plaintiffs demand that all this solemn legislation, and all these judicial proceedings, are to be considered as so much usurpation on the part of the government of the United States on the rights of His Catholic Majesty and his subjects. It will surely require some very cogent arguments, and a very imperious necessity of duty, to induce this court to decide in contradiction to such a series of acts of the government. The States of Alabama and Mississippi were created 283*] *in 1817, and they also, according to the doctrine contended for by the plaintiffs, were made up of large portions of His Catholic Majesty's dominions; for such is the direct consequence of maintaining that the territory east of the island of Orleans and west of the Perdi-Catholic Majesty promises and engages on his do was not ceded to the United States by the treaty of 1803, but only by the treaty of 1819. It is left to the court to imagine the consequences of such a conclusion. The question involved in this case has been raised and decided in the State courts, viz., in Newcombe v. Skipwith, 1 Martin's Reports, 151. The general principle and rule of decision that courts follow the construction put upon treaties by their governments, is laid down in The United States v. Palmer, 3 Wheat. 610; The Divina Pastora, 4 Wheat. 52; Williams v. Armroyd, 7 Cranch, 433, 434; where this court expressly declares that it follows the opinion of the government on a question of political law. Indeed, the principle is too obviously a necessary corollary of the connection of courts of justice with the government under which they part to retrocede to the French republic, six months after the full and entire execution of the conditions and stipulations herein 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 other States." The French text is: "Sa Majesté Catholique promet et s'engage de son côté, à rètrocéder à la Republique Française, six mois après l'exécution pleine et entière des conditions et stipulations ci-dessus, relatives à son altesse royale le Duc de Parme, la colonie ou province de la Louisiane, avec la méme étendue qu'elle a actuellement entre les mains de l'Espagne, et qu'elle avait lorsque la France la |