[Foster & Elam vs. Neilson.] their towns and forts, such as they were ceded by Great Britain, in 1783, &c." 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 every thing 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, 1810, and the counter project of Mr. Adams on the 13th of the same month, will be found in the papers com[*276 municated by the president to Congress on the 7th December, 1819, and in p. 50 of the same documents will be found the remarks of M. de Neuville, who was active in his efforts to bring the parties to a settlement. "It is agreed by both parties that the article stipulating the cession of the Floridas, shall be so framed as to cover the honour of both parties, and prove that the treaty is an amicable convention, divested of all mental reservations, disguise, or recrimination." But the language of the treaty would seem to preclude all possibility of question. The cession by the king of Spain of "all the territories which belonged to him, situated to the eastward of the Mississippi, known by the name of East and West Florida," by its terms embraced the territory in question. That was known by both countries, and repeatedly called West Florida. In fact the two Floridas received their names by the same act which fixed their limits, the proclamation of 1763. In retaining those names the same boundaries were preserved, and were never departed from. Spain is equally precluded from gainsaying the words of cession, as the United States from questioning the words of description. By adopting any limitation, the treaty would not do what it purported to do; all the differences between the two nations are not composed; all the territory known by the name of East and West Florida was not ceded; mental reservations must have been made; disguises must have been assumed; and recriminations must ensue. If this then be the true exposition of the treaty, the language of [Foster & Elam vs. Neilson.] *he eighth article would seem conclusive upon the case. That provides 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 continued under the authori*277] ty of Spain. All are put upon the same foot; all is ceded; and all grants throughout the whole are confirmed. In De la Croix vs. 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 recent correspondence between the Spanish minister and our own executive upon the subject of these grants, the former was especially referred to these tribunals as alone competent to investigate and decide upon the question of right. An American citizen has a right to demand protection from the Courts of his country against the lawless acts of the executive, and the unconstitutional proceedings of the legislature. In the decision of this question the plaintiffs invoke the aid of treaties. They place their claim upon the language of treaties which the Constitution has made the law of the land, and which cannot be annulled by the executive, or by the legislature. But have these departments of the government assumed ground, which will in case of a favourable decision involve them in controversy with the judiciary? We have endeavoured throughout the whole argument to show that in every step we have taken we are sustained by the executive. We submit as conclusive upon the subject the executive *construction of the treaty of 1819, in *278] relation to the grant made to Don Pedro de Vargas. This grant included all the land previously ungranted to the westward of the Perdido, "comprehending all the waste lands which belong or may belong to Spain, and are in dispute or reclamation with the [Foster & Elam vs. Neilson.] United States according to the tenor of treaties." This was one of the three large grants of which our government demanded, and obtained from Spain, an express act nullifying and avoiding them, as made in fraud of the eighth article of the treaty. Upon what principle was this done unless upon the admission that the lands were grantable by Spain, and that if the date was anterior to the period prescribed in the treaty, the concession would be valid to pass the title. In reference to the acts of Congress, it may well be questioned, whether any mere municipal 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 by them, nor ought they to possess this effect. But it is by no means apparent that any such language was used or any such intention entertained by Congress. Nearly all their legislation on the subject grew out of the act of occupation in 1810, and should be construed 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 26, 1804,‡ sec. 1, declares, "that all that portion of country ceded by France to the United States under the name of Louisiana, which lies south of the Mississippi territory, and of an east and west line to commence on the Mississippi river at the thirty-third 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 the first section, "That the inhabitants of all that part of the country or territory ceded under the name of Louisiana, &c., contained within [*279 the following limits;" the first lines are to the westward of the Mississippi, which river is reached at the thirty-third degree north latitude; "thence down the said river to the river Iberville, and from thence along the middle of 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 † Land Laws, 72. 3 Laws U. States, 603. [Foster & Elam vs. Neilson.] 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 whose 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 ultima ratio legis is to be the arbiter, instead of the ultima ratio regum. No department of the government can take exception at a decision in favour 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 exception, taken *by the respondent in the Court below, which was sustained *280] in that Court, and the petition of the appellant there dis cussed. 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 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 forty thousand arpens, 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 Louisi ana. The district of country within which the lands claimed are situated, did not form part of the territory erected into a state, under [Foster & Elam vs. Neilson.] 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 question of fact than of law; but the parties have treated it as of the latter character, [*281 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 to 428. Part ii. 164. The question raised seems moreover to belong rather to politics than law; it rests upon the construction of a treaty; and of the construction of a treaty, as a general question, 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 defence 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, because they nowhere recognise 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, sec. 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 any thing more decisively mark and ascertain the clear construction and *interpretation of Congress, that this district of country was ceded by Spain [*282 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 territor, which the appellants say remained the property of Spain until the Florida treaty. Cited acts of Con |