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[Poole et al. v. The Lessee of Fleeger et al.]

puted boundaries. On the same principle, the constitution made congress paramount over the states, by making their agreements and compacts touching their boundaries, subject to its approbation; and by assigning to this Court, the cognizance of "controversies between states," which includes those relating to boundaries, made it so. Thus the line is most distinctly defined, which separates the political and judicial questions which arise touching the boundaries of provinces; where there is an agreement, it is matter of judicial cognizance, to decree what and where the agreed boundary is; where there is none, it was a matter cognizable only before the king in council before the revolution. But even then, proprietaries were competent to settle the boundaries of their respective provinces, by an agreement without the license of the king; and chancery would enforce its execution by a decree in personam on the delinquent proprietary, without any reference to the rights of the king, other than adding to the decree a clause of salvo jure coronæ; 1 V. Sr. 449, 454; which was more form than substance, as those rights continued, be the boundary where it might.

When the prerogative of the king, and the transcendent powers of parliament devolved on the several states by the revolution, 4 Wh. 651, there could be no paramount power competent to prescribe the boundaries of states, which were sovereign by inherent right, until they should appoint some common arbiter, to whose decree they would submit. By the confederation, congress appointed the tribunal, and by the constitution this Court was authorized to decide these questions; but in both cases, the subject matters referred were "controversies," not "compacts or agreements;" controversies open and existing, which states could not settle; not those which they had settled by solemn compacts, about which there was no difference in construction, and which both states had faithfully executed. If a controversy did exist, either as to the terms or the execution of the compact, or in the absence of a compact, the question of boundary depended on the line of original right, or the joint or separate acts of the contending states, the tribunal thus appointed could settle it as the umpire between them. But it could exercise no authority which exceeded the submission; it could not establish a boundary different from what both states had made, or from that which resulted from their antecedent rights and relations with each other, when they could not adjust them amicably. The umpire must base his award on the compact, if one exists; if not, on the right of the states, as adverse claimants to the same territory; he cannot look through or over the compact, and make an award on grounds which would annul any of its provisions, by giving to either state any thing which she had renounced, or stipulated that it should be held by the other state, its citizens or grantees, "as rightfully granted." No arbiter between nations ever assumed such power; no nation would submit to its exercise; no such power is granted to this Court, and any construction of the constitution which should so torture its plain

[Poole et al. v. The Lessee of Fleeger et al.]

language, and most manifest intention, would shake the Union to its

centre.

If these views are correct, their application to this case is decisive. It comes up on a writ of error from a circuit court, in a suit at common law between citizens of Pennsylvania, claiming under Virginia and Kentucky, and citizens of Tennessee, claiming under that state and North Carolina, in which the circuit court, and the courts of the state, have, by the 11th section of the judiciary act, a concurrent jurisdiction, and on which this Court acts by its appellate power. The plaintiff claims to recover the land in virtue of a title confirmed by the compact. The defendant does not attempt to show that the plaintiff's title is invalid, or of no effect on any construction of the compact, or any doubt as to what or where the agreed boundary is; but rests his whole case on showing that Walker's line had been so definitely established, before the compact, as to annul those provisions which confirm the plaintiff's title. As the effect of so adjudicating on the rights of the parties, would be an assumption by the ordinary judicial power of a state, or an inferior court of the United States, of an authority to force upon two states, a boundary which both disclaim, a power which this Court, as the constitutional arbiter between them, could not exercise, in virtue of its original jurisdiction, it is clear that it cannot so act by appellate power. In deciding suits between individuals claiming lands by grants of different states, between whom there was a compact of boundary, this Court looks only to the compact, its terms and construction, to ascertain the relative rights of the parties, without looking beyond it in order to find out what the boundary ought to have been; Vide Sims' Lessee v. Irvine, 3 Dall. 425, 456, &c.; Lessee of Marlatt v. M'Donald, at the present term, arising under the compact between Pennsylvania and Virginia. Adopting the principles of the common law laid down in Penn v. Baltimore, that where boundaries are doubtful, it is a proper case for an agreement, which being entered into, the parties could not resort back to the original rights between them; 1 V. Sr. 452, and those of the law of nations, laid down in the opinion of the Court in this case, it follows:-That the only questions for our judicial cognizance by appellate power, are those which arise on the construction of the compact, and the locality of the boundary as agreed and declared by a compact ratified by congress, to be decided by the same principles as a question arising on a cession by a state of territory to the United States, of which the case of Handly's Lessee v. Anthony, is an illustration.

That case arose on the cession by Virginia to the United States, of the North Western Territory; one party claimed under Kentucky, the other under the United States, by a grant of land in Indiana; the question of the boundary between these states, came up collaterally, and was decided on the terms and construction of the act of cession and the compact between Virginia and Kentucky; 5 Wh. 375. But in the case of Foster & Elam v. Neilson, where

[Poole et al. v. The Lessee of Fleeger et al.]

the title to the land in dispute turned upon the boundaries of the cession of Louisiana by Spain to France, and by France to the United States, it was otherwise. The land was situated south of lat. 31° N., west of the Perdido, east of the Mississippi, and north of the Iberville; being part of what the United States had long contended was ceded as part of Louisiana, and which Spain insisted was retained by her as part of West Florida; one party claimed by a Spanish grant made after the cession, the other by mere possession, on the ground that the Spanish grant was void.

This Court held, that the question of boundary was one which must be acted on by the political department of the government, and "that it was the province of the Court to conform its decision to the will of the legislature, if that will has been clearly expressed;" 2 Peters, 307. That case presented the precise question on which this turns. "To whom did the country between the Iberville and Perdido rightfully belong, when the title now asserted by the plaintiffs was acquired;" 2 Pet. 300. Had there been a compact by the two governments, declaring that the land belonged to one of them or its grantees, or the boundary not contested, it would have been purely a judicial question between individuals, as to which had the title; but as it depended on a boundary contested by both nations, the Court was not competent to settle it. This principle was affirmed in The United States v. Arredondo, which turned on the construction of the treaty with Spain, ceding the Floridas to the United States; and this Court held, that without an act of congress, submitting the question to the decision of the Court as a judicial one, it would have been a political question, on which congress must act, before it was cognizable by the Court; 6 Pet. 710, 735, 743.

Now as the necessary consequence of over-riding the compact, is to throw the parties back to the original right of the different states, to revive an old controversy between them about their boundaries, and to make the title of the parties depend on the very question which, in the case of Foster & Elam v. Neilson, this Court declared itself incompetent to decide-"To whom did the country between latitude 36° 30' and Walker's line, belong rightfully, when the title, now asserted by the plaintiffs, was acquired," my answer is-That was a political question between the two states, who have settled it by a compact, in virtue of the requisite sanction of the constitution, to the exercise of a power reserved to the states; and that compact declares that the grants of lands in this territory, made in virtue of Virginia warrants, "shall be considered as rightfully entered or granted." And being fully convinced that I am bound to take this compact as the rule for my judgment, the law of this case, the test by which the rights of parties are to be settled, and finding in it abundant authority for affirming the judgment of the circuit court, I should feel, that by any further consideration of the points made in the argument of the plaintiffs in error, it might be inferred that I entertained doubts of the soundness of the principles on which

[New York v. Miln.]

my opinion is founded. These principles are, in my judgment, as unquestionable as they are fundamental, and cannot be impaired without great danger to the harmony, if not the permanency of the Union.

THE MAYOR AND ALDERMEN OF THE CITY OF NEW YORK V. MILN.

The direct question on which this case turns is, whether a law of New York, directing the commanders of passenger vessels, arriving from foreign ports, to make a report of their numbers, &c., and to give security that they shall not become chargeable to the city as paupers, before they shall be permitted to land, is repugnant to that provision of the constitution of the United States, which gives to congress power "to regulate commerce with foreign nations," &c. In considering this question, I shall not inquire whether this power is exclusive in congress, or may be, to a certain extent, concurrent in the states, but shall confine myself to an inquiry as to its extent and objects. That the regulation of commerce, in all its branches, was exclusively in the several colonies and states, from April, 1776, has been shown in the preceding general view, pages 70, 71; and that it remained so subject to the ninth article of confederation, till the adoption of the constitution; one great object of which was to confer on congress such portion of this power as was necessary for federal purposes, is most apparent from the political history of the country, from the peace of 1782 till 1787; Vide 1 Laws U. S. 28 to 58. It was indispensable to the efficiency of any federal government, that it should have the power of regulating foreign commerce, and between the states, by laws of uniform operation throughout the United States; but it was one of the most delicate subjects which could be touched, on account of the difficulty of imposing restraints upon the extension of the power, to matters not directly appertain ing to commercial regulation.

"The idea that the same measure might, according to circumstances, be arranged with different classes of powers, was no novelty to the framers of the constitution. Those illustrious patriots and statesmen had been, many of them, deeply engaged in the discussions which preceded the war of our revolution, and all of them were well read in those discussions. The right to regulate commerce, even by the imposition of duties, was not controverted; but the right to impose a duty, for the purpose of revenue, produced a war, perhaps as important, in its consequences, to the human race, as any the world has ever witnessed;" 9 Wheat. 202; Gibbons v. Ogden.

In the declaration of rights, in 1774, congress expressly admitted the authority of such acts of parliament "as are bona fide restrained to the regulation of our external commerce, for the purpose of se

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[New York v. Miln.]

curing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members; excluding every idea of taxation, internal or external, for raising a revenue on the subject in America, without their consent." But in admitting this right, they asserted the free and exclusive power of legislation in their several provincial legislatures, in all cases of taxation and internal polity, subject only to the negative of their sovereign, as has been heretofore used and accustomed;" Ante, p. 69. Taxation was not the only fear of the colonies, as an incident or means of regulating external commerce; it was the practical consequences of making it the pretext of assuming the power of interfering with their "internal polity," changing their "internal police," the "regulation thereof," "of intermeddling with our provisions for the support of civil government, or the administration of justice;" Vide Journ. Cong. 28, 98, 147, 177.

The states were equally afraid of entrusting their delegates in congress with any powers which should be so extended by implication or construction, of which the instructions of Rhode Island, in May, 1776, are a specimen. "Taking the greatest care to secure to this colony, in the strongest and most perfect manner, its present form and all the powers of government, so far as it relates to its internal police, and conduct of our own officers, civil and religious;" 2 Journ. 163. In consenting to a declaration of independence, the convention of Pennsylvania added this proviso: that "the forming the government, and regulating the internal police of the colony, be always reserved to the people of the colony;" Ante, p. 71. In the 3d article of confederation, the states guaranty to each other their freedom, &c., and against all attacks on their sovereignty and trade; in the treaty of alliance with France, the latter guaranties to the states their sovereignty "in matters of commerce," absolute and unlimited. In the 9th article of confederation, the same feeling is manifest in the restriction on the treaty making power, by reserving the legislative power of the states over commerce with foreign nations. It also appears in the cautious and guarded language of the constitution, in the grant of the power of taxation, and the regulation of commerce, which give them in the most express terms, yet in such as admit of no extension to other subjects of legislation, which are not included in the enumeration of powers. In giving power to congress "to lay and collect taxes, duties, imposts, and excises," the objects are defined; to pay the debts, and provide for the common defence and general welfare of the United States." This does not interfere with the power of the states to tax for the support of their own government, nor is the exercise of that power by the states, an exercise of any portion of the power that is granted to the United States; 9 Wh. 199. "That the power of taxation is retained by the states, is not abridged by the grant to congress, and may be exercised concurrently, are truths which have never been denied;" 4 Wh. 425. It results from the nature and objects of taxation, that it must be con

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