[Choteau v. Marguerite.]

The defendant then sued out the writ of error to the Supreme Court of the United States, under the 25th section of the judiciary act of 1789, to the supreme court of Missouri.

Mr. Butler, for the defendant in error, moved to dismiss the writ of error on the ground that the case is not within the provisions of the 25th section of the judiciary act.

He contended that no question had arisen in the case, in which this Court could be called on to interfere with its revising powers. The plaintiff in error claimed that the treaty of Louisiana, of 30th April, 1803, protected him in his property in the defendant, as she was his slave. The question before the circuit court, and which was submitted to the jury, was, whether the plaintiff was a slave; and the jury found that she was free.

Under the 25th sec. of the judiciary act, the jurisdiction of this Court in writs of error to the supreme courts of the state, prevails in those cases in which a treaty of the United States has been drawn in question, and has been misconstrued; or a statute of the United States has been misconstrued and disregarded.

It has been supposed that this suit is within the class of cases cognizable in the Supreme Court of the United States; as the defendant claimed Marguerite as a slave, under the Louisiana treaty.

The first instruction has no reference to the treaty. The counsel sought to have the instructions of the court, that if the plaintiff was always held as a slave, up to the time of the treaty, she continued such. The court held that she could not be a slave. Whether this opinion was right or not, the construction of the treaty was not drawn in question. The protection of the treaty was not denied; and the decision of the court was such as did not make the case within its provisions. The plaintiff had no property in Marguerite, which the treaty operated upon.

But this Court decided that the general provisions of the ordinance of 1787, could not give to the Supreme Court jurisdiction, where rights of property were asserted to have been violated by the decision of a state court. Menard v. Aspasia, 5 Peters, 525.

In the case of Crowell v. Randall, 10 Peters, 368, there is a review of all the cases on the question of the jurisdiction of this Court, in cases from the highest court of the states of the United States. In that, and in all the other cases, the law is laid down to be, that the appellate jurisdiction of this Court can only be sustained when

[Choteau v. Marguerite.]

it appears that the question over which the jurisdiction exists must appear to have been brought before the Court, and decided according to the provisions of the twenty-fifth section; or that by clear and necessary intendment, the question must have arisen and must have been decided.

The very point involved in this case has been decided. In the case of the Mayor of New Orleans v. De Armas, it was held that the protection of the treaty existed, and its provisions were applicable and would be enforced by the courts of the United States, until the territory became a state; afterwards, that protection was given by the constitution and laws of the state. If such a case as this could be entertained, then all questions of property, arising in the states erected in the country acquired by the United States, by the Louisiana treaty, could be brought here; as the guaranty of the treaty applies to all property.

Mr. Key, with whom was Mr. Benton, opposed the motion. He contended that the decision of this Court, in Crowell v. Randall, 10 Peters, 368, did not in any way enlarge the principles which had prevailed before. All the Court are required to do before they take jurisdiction, is to see that the case is such as presented a question cognizable by the Court. The Court, if its consideration was essential to the decision of the cause, will hold that it did arise, and was decided. He argued that the treaty of Louisiana must have been considered by the supreme court of Louisiana in this case.

Mr. Justice STORY said that it had been thought that the decisions of the Court had been misunderstood: and the Court, in the case of Crowell v. Randall, 10 Peters, had revised all the cases; and had laid down the law as they wished it should be universally understood.

The motion to dismiss the case was sustained.

MANUEL GARCIA, PLAINTIFF IN ERROR V. SAMUEL LEE.

The decision of the Court in the case of Foster and Elam v. Neilson, 2 Peters, 254 ; by which grants made by the crown of Spain, after the treaty of St. Ildefonso, of lands west of the river Perdido, and which were by the United States declared to be within the territory of Louisiana ceded by France to the United States, were declared void; affirmed.

Congress, in order to guard against imposition, declared, by the law of 1804, that all grants of land made by the Spanish authorities, in the territory west of the Perdido, after the date of the treaty of St. Ildefonso should be null and void; excepting those to actual settlers acquired before December 20th, 1803. The controversy in relation to the country lying between the Mississippi and the Perdido rivers, and the validity of the grants made by Spain in the disputed territory, after the cession of Louisiana to the United States, were carefully examined and decided in the case of Foster and Elam v. Neilson. This Court, in that case, decided that the question of boundary between the United States and Spain was a question for the political departments of the government; that the legislative and executive branches having decided the question, the courts of the United States are bound to regard the boundary determined by them as the true one; that grants made by the Spanish authorities of lands, which, according to this boundary line belonged to the United States, gave no title to the grantees, in opposition to those claiming under the United States; unless the Spanish grants were protected by the subsequent arrangements made between the two governments; and that no such arrangements were to be found in the treaty of 1819, by which Spain ceded the Floridas to the United States, according to the fair import of its words, and its true construction.

In the case of Foster and Elam v. Neilson, this Court said that the Florida treaty of 1819 declares that all grants made before the 24th January, 1818, by the Spanish authorities, "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:" and in deciding the case of Foster v. Elam, the Court held that even if this stipulation applied to lands in the territory in question, yet the words used did not import a present confirmation by virtue of the treaty itself, but that they were words of contract; "that the ratification and confirmation which were promised, must be the act of the legislature; and until such shall be passed, the Court is not at liberty to dis regard the existing laws on the subject." Afterwards, in the case of the United States v. Percheman, 7 Peters, 86, in reviewing the words of the eighth article of the treaty, the Court, for the reasons there assigned, came to a different conclusion; and held that the words were words of present confirmation, by the treaty, where the land had been rightfully granted before the cession; and that it did not need the aid of an act of congress to ratify and confirm the grant. This language was, however, applied by the Court, and was intended to apply to grants made in a territory which belonged to Spain at the time of the grant. The case then before the Court was one of that description. It was in relation to a grant of land in Florida, which unquestionably belonged to Spain at the time the grant was made; and where the Spanish authorities had an undoubted right to grant until the treaty

[Garcia v. Lee.]

of cession in 1819. It is of such grants that the Court speak, when they declare them to be confirmed and protected by the true construction of the treaty and that they do not need the aid of an act of congress to ratify and confirm thitle of the purchaser. The Court do not apply this principle to grants made within the territory of Louisiana. The case of Foster and Elam v. Neilson, must in all other respects be considered as affirmed by the case of Percheman; as it underwent a careful examination in that case, and as none of its principles were questioned, except that referred to.

The leading principle in the case of Foster and Elam v. Neilson, which declares that the boundary line determined on as the true one by the political departments of the government, must be recognised as the true one by the judicial departments; was after that case directly acknowledged and affirmed by this Court, in 1832, in the case of the United States v. Arredondo and others, 8 Peters, 711: and this decision was given by the Court, with the same information before them as to the meaning of the Spanish side of the treaty, which is mentioned in the case of Percheman.

ERROR to the district court of the United States for the eastern district of Louisiana.

In the district court of Louisiana, the plaintiff in error, a resident in Cuba, on the 26th January, 1836, filed a petition, stating that on the 1st of September, 1806, he purchased of the Spanish government, for a valuable consideration, and was put into possession of the same, fifteen thousand arpents of land, divided into three tracts or parcels, having such marks and bounds as are laid down in the original plots and surveys annexed to the deed of sale by Juan Ventura Morales, then intendant of the Spanish government, dated the 5th day of September, 1806. Certified copies of the deed of sale, plots, and surveys were annexed to the petition.

The petition stated that Samuel Lee, a resident in the parish of Feliciana, and a citizen of the state, had taken possession of ten thousand arpents, part of the said grant, which is situated in the now state of Louisiana; and refuses to deliver up the same. The petitioner prays to be put in possession of the said land, &c.

On the 17th day of May, 1836, Samuel Lee filed an answer and exception to the plaintiff's petition, in which he denied "all and singular the allegations in the plaintiff's petition herein exhibited against him, and will, on trial, require strict and legal proof of the same; and especially does he deny any jurisdiction of the Spanish government over the territory in which the land claimed by the plaintiff is situated at the time the grant exhibited by him was made, or at any time subsequent thereto: and strictly denies the right of the said

[Garcia v. Lee.]

government, or the officers thereof to make grants or sales of land therein."

On the 27th of February, 1837, the district court of Louisiana entered a judgment in favour of the defendant; and the plaintiff prosecuted this appeal.

At the hearing of this case in the district court, certain documentary evidence was offered by the plaintiff, which was not received by the court; and the plaintiff took an exception to the rejection of the same. This bill of exceptions, containing all the documents offered and rejected in the court below, was sent up with the record.

The case was argued by Mr. M'Caleb and Mr. Southard, for the plaintiff in error; and by Mr. Jones, for the defendant.

The counsel for the plaintiff in error asked a reversal of the judgment of the district court of Louisiana, on the following grounds:

1st. The grant or sale to the plaintiff was made at a period when the territory between the Mississippi and Perdido was in the actual possession, and under the jurisdiction and sovereignty of the crown of Spain.

2d. Great Britain was the first nation that exercised authority over the said territory in a sovereign capacity; France asserted pretensions to it until the ratification of the treaty of 1763, by which she finally and forever surrendered them to Great Britain: and consequently, the said territory could not have been, and was never intended to be ceded by France to Spain, by a treaty of the same date, to wit, 1763, as part of Louisiana.

3d. The said territory was never called a part of Louisiana by any nation except France; and after the final relinquishment of all her right and title, it was owned and possessed by Great Britain, as part of her West Florida, until the treaty of 1783; when it was ceded by her as such to Spain as a conquered country.

4th. The said territory formed no part of Louisiana, as retroceded by Spain to France by the treaty of St. Ildefonso, of 1800; nor of Louisiana, as ceded by France to the government of the United States by the treaty of Paris, of 1803.

5th. Spain never finally relinquished her right and title to the said territory until the ratification of the treaty of 1819, which was expressly a treaty for the settlement of all the pretensions of the governments of the United States and Spain; and which expressly VOL. XII.-3 T