THE UNITED STATES, APPELLANTS V. JOSEPH DELESPINE'S HEIRS, LAZARUS AND OTHERS.

A translation, by the secretary of the board of land commissioners of Florida, whose duty it was to translate Spanish documents given in evidence before the board of commissioners, of a certified copy of a Spanish grant of land in Florida, which had been produced to the board, was properly admitted as evidence of the grant: satisfactory proof having been given to the Court, that the original grant could not be found in the records of East Florida; and that this was the best evidence, from the nature of the case, which could be given of the existence of the original paper, lost or destroyed.

APPEAL from the superior court of East Florida.

The heirs of Joseph Delespine, and others, purchasers from Joseph Delespine, filed a petition to the supreme court of East Florida, praying confirmation of a grant to Joseph Delespine, made by Don Jose Coppinger, on the 9th day of April, 1817; he being then the Spanish governor of East Florida. The grant was for forty-three thousand acres, under which surveys were made by George J. F. Clarke, then surveyor of the province, according to the terms of the grant.

The petitioners exhibited, in support of their claim, the original. translation, certified by Francis I. Facio, of the certified copy by Thomas de Arguilar, the government secretary of the province, which was brought into court by the keeper of the public archives of East Florida. Evidence was given, that the original grant by governor Coppinger had not been found among the archives, or any where. It was also in evidence, that a copy of the memorial of Joseph Delespine, and of the concession thereupon, for the fortythree thousand acres of land, purporting to have been certified by Thomas de Arguilar, as secretary of the government, was exhibited to the board of land claims of East Florida, which was, before the board, proved to have been in the handwriting of the government secretary, and signed by him. This document had been mislaid or lost.

The superior court of East Florida gave a decree in favour of the petitioners; and the United States prosecuted this appeal.

[The United States v. Delespine's Heirs, et al.]

Mr. BUTLER, the attorney general of the United States, informed the Court, that on an examination of the record, he found nothing in the case to distinguish it from those which had been already decided in favour of claimants under Spanish grants; unless the Court should consider the circumstance of the original grant by governor Coppinger not having been found in the archives of Florida, as rendering the evidence of the grant insufficient.

The grant should have been found filed with similar papers in the proper office, but there it was not. It is admitted that the papers of the office are in disorder; and evidence was given in the superior court of Florida, which showed that negligence in the preservation of the papers frequently prevailed there. But the certified copy of the grant was not produced, it also had been lost; and the only evidence exhibited to the court, was a certified translation of a copy of the grant.

It is admitted that when a grant of land is made, the original is retained, and a copy only is furnished to the grantee; but the original is filed in the proper office. There no original can be found. The case must stand before the court as if the certified copy of the grant had been produced, for its loss is accounted for; but the question which this Court have to decide, is whether the grantees ought not to prove the original to be in existence. Cited Mitchell v. The United States, 9 Peters, 731; Owens v. Hull, 9 Peters, 621.

Mr. Justice WAYNE delivered the opinion of the Court:

In this case, it is conceded by the attorney general that the only ground upon which it can be taken out of the decisions of this Court, confirming the decrees of the courts of Florida, upon grants and concessions of land made by the authorities of the king of Spain to his subjects, before the 24th January, 1818; was, that the superior court of East Florida, in adjudicating upon this claim, received as evidence the copy of a copy of a concession or grant to Joseph Delespine. We think the copy, in this instance, was properly received by the court. The first copy was made from the original, filed in the proper office, from which the original could not be removed for any purpose. That copy, it is admitted, would have been evidence in the cause. It is shown, by the affidavit of Mr. Drysdale, to have been lost whilst the claim was under examination by the board of commissioners established by congress for ascertaining land claims in Florida; and that the copy received as evidence, is a translation of

[The United States v. Delespine's Heirs et al.]

the first, certified by the secretary of the board of land commissioners, whose duty it was to translate Spanish documents given in evidence before the board of land commissioners; and is a part of the papers in this claim, transferred, according to law, to the keeper of the public archives of East Florida. And it appears, also, by proofs in this cause, that the papers in the office from which the first copy was taken, and the original of which is also sufficiently proved to have been on file, have been, by accident or otherwise, mutilated, since the first copy was taken; that the original could no longer be found; and, consequently, that the copy in this case, was the best evidence, from the nature of the case, which could be given of the existence of an original paper lost or destroyed.

The decree of the superior court of East Florida was confirmed.

This cause came on to be heard on the transcript of the record from the superior court for the district of East Florida, and was argued by counsel. On consideration whereof, it is now here decreed and ordered by this Court, that the decree of the said superior court in this cause be, and the same is hereby affirmed.

!

THE STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS, COMPLAINANTS V. THE COMMONWEALTH OF MASSACHUSETts, de

FENDANT.

The Supreme Court has jurisdiction of a bill filed by the state of Rhode Island against the state of Massachusetts, to ascertain and establish the northern boundary between the states, that the rights of sovereignty and jurisdiction be restored and confirmed to the plaintiffs; and they be quieted in the enjoyment thereof, and their title; and for other and further relief.

Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit; to adjudicate or exercise any judicial power over them. An objection to jurisdiction, on the ground of exemption from the process of the court in which the suit is brought, or the manner in which a defendant is brought into it, is waived by appearance and pleading to issue; but when the objection goes to the power of the court over the parties, or the subject matter, the defend. ant need not, for he cannot give the plaintiff a better writ, or bill. The Supreme Court is one of limited and special original jurisdiction. Its action must be confined to the particular cases, controversies, and parties over which, the constitution and laws have authorized it to act; any proceeding without the limits prescribed is coram non judice, and its action a nullity. And whether the want or excess of power is objected by a party, or is apparent to the Court, it must surcease its action, or proceed extra-judicially.

The several states of the United States, in their highest sovereign capacity, in the convention of the people thereof, on whom, by the revolution, the prerogative of the crown and the transcendent power of parliament dévolved, in a plenitude unimpaired by any act, and controllable by no authority, adopted the constitution; by which they respectively made to the United States a grant of judicial power over controversies between two or more states. By the constitution, it was ordained that this judicial power, in cases where a state was a party, should be exercised by the Supreme Court, as one of original jurisdiction. The states waived their exemption from judicial power, as sovereigns by original and inherent right, by their own grant of its exercise over themselves in such cases; but which they would not grant to any inferior tribunal. By this grant, this Court has acquired jurisdiction over the parties in this cause, by their own consent and delegated authority, as their agent for executing the judicial power of the United States in the cases specified. Massachusetts has appeared, submitted to the process in her legislative capacity; and plead in bar of the plaintiff's action certain matters on which the judgment of the Court is asked. All doubts as to jurisdiction over the parties are thus at rest, as well by the grant of power by the people, as the submission of the legislature to the process; and calling on the Court to exercise its jurisdiction on the case presented by the bill, plea, and answer.

Although the constitution does not in terms extend the judicial power to all controversies between two or more states; yet it in terms excludes none, whatever may be their nature or subject.

This Court, in construing the constitution as to the grants of powers to the United

VOL. XII.-4 O

[The State of Rhode Island v. The State of lassachusetts.]

States, and the restrictions upon the states, has ever held, that an exception of any particular case presupposes that those which are not excepted, are embraced within the grant or prohibition: and have laid it down as a general rule, that where no exception is made in terms, none will be made by mere implication or construction.

In the construction of the constitution we must look to the history of the times, and examine the state of things existing when it was framed and adopted, to ascertain the old law, the mischief, and the remedy.

The boundary established and fixed by compact between nations becomes conclusive upon all the subjects and citizens thereof, and binds their rights; and is to be treated, to all intents and purposes, as the true real boundary. The construction of such compact is a judicial question.

There can be but two tribunals under the constitution who can act on the boundaries of states, the legislative or the judicial power; the former is limited, in express terms, to assent or dissent where a compact or agreement is referred to them by the states; and as the latter can be exercised only by this Court when a state is a party, the power is here, or it cannot exist,

This Court exists by a direct grant from the people of their judicial power; it is exercised by their authority, as their agent, selected by themselves, for the purposes specified. The people of the states, as they respectively become parties to the constitution, gave to the judicial power of the United States, jurisdiction over themselves, controversies between states, between citizens of the same or different states, claiming lands under their conflicting grants, within disputed territory.

No court acts differently in deciding on boundary between states, than on lines between separate tracts of land. If there is uncertainty where the line is, if there is a confusion of boundaries by the nature of interlocking grants, the obliteration of marks, the intermixing of possession under different proprietors, the effects of accident, fraud, or time, or other kindred causes; it is a case appropriate to equity. An issue at law is directed, a commission of boundary awarded; or, if the court are satisfied without either, they decree what and where the boundary of a farm, a manor, province, or a state, is and shall be.

There is neither the authority of law or reason for the position, that boundary between nations or states is, in its nature, any more a political question than any other subject on which they may contend. None can be settled without war or treaty which is by political power; but, under the old and new confederacy, they could and can be settled by a court constituted by themselves, as their own substitutes, authorized to do that for states, which states alone could do before.

It has been contended that this Court cannot proceed in this cause without some process and rule of decision prescribed appropriate to the case; but no question on process can arise on these pleadings; none is now necessary, as the defendant has appeared and plead, which plea in itself makes the first point in the cause, without any additional proceeding; that is, whether the plea shall be allowed, if sufficient in law, to bar the complaint, or be overruled, as not being a bar in law, though true in fact.

This Court cannot presume that any state which holds prerogative rights for the good of its citizens, and by the constitution has agreed that those of any other state shall enjoy rights, privileges, and immunities in each as its own. do, would either do wrong, or deny right to a sister state or its citizens, or refuse to submit