ence of a controversy between the United States and the State of Texas as to the ownership of what is designated on the map of Texas as Greer county, and provides that the act shall not be construed to apply to that county until the title to the same has been adjudicated and determined to be in the United States. In order that there might be a speedy and final judicial determination of this controversy, the attorneygeneral of the United States was authorized aud directed to commence and prosecute on behalf of the United States a proper suit in equity in this court against the State of Texas, setting forth the title of the United States to the country lying between the north and south forks of the Red river where the Indian Territory and the State of Texas adjoin, east of the one hundredth degree of longitude, and claimed by the State of Texas as within its boundary. 26 Stat. 81, 92, chap. 182, § 25.

The State of Texas appeared and filed a demurrer, and also an answer denying the material allegations of the bill. The case is now before the court only upon the demurrer, the principal grounds of which are: That the question presented is political in its nature and character, and not susceptible of judicial determination by this court in the exercise of its jurisdiction as conferred by the Constitution and laws of the United States; that it is not competent for the gental government to bring suit against a Stato of the Union in one of its own courts, especially when the right to Le maintained is mutually asserted by the United States and tho State, namely, the ownership of certain designated territory, and that the plaintiff's cause of action, being a suit to recover real property, is legal and not equitable, and consequently so much of the act of May 2, 1890, as authorizes and directs the prosecution of a suit in equity to determine the rights of the United States to the territory in question is unconstitutional and void.

The necessity of the present suit as a measure of peace between the general government and the State of Texas, and the nature and importance of the questions raised by tho demurrer, will appear from a statemont of the principal facts disclosed by the bill and amended bill.

By a treaty between the United States and Spain, mado February 22, 1819, and ratified February 19, 1021, it was provided:

"Art. 3. The boundary line between the two countries, west of the Mississippi, shall begin on the Gulf of Mexico, at the mouth of the river Sabine, in the sea, continuing north, along the western bank of that river, to the thirty-second degree of latitude; thence, by a line due north, to the degree of latitude where it strikes the Rio Roxo of Natchitoches or Red river; then following the course of the Rio Roxo, westward, to the degree of longitude one hundred west from London and twenty-three from Washington; then, crossing the said Red river, and running thence, by a line due north, to the river Arkansas; thence, following the course of the southern bank of the Arkansas to its sourco, in latitudo forty-two north; and thence, by that parallel of latitude, to the South sea. The whole being as laid down in Melish's map of the United States, published at Philadelphia, improved to the 1st of January, 1818. But if the source of the Arkansas river shall be found to fall north or south of latitudc forty-two, then the line shall be run from the said source duc south or north, as the case may be, till it meets the said parallel of latitude forty-two, and thenco, along the said parallel, to the South sea. All the islands in the Sabine, and the said Red and Arkansas rivors, throughout the course thus described, to belong to the United States, but the use of the waters and the navigation of the Sabine to the sea, and of the said rivers Roxo and Arkansas, throughout the

extent of the said boundary, on their respective banks, shall be common to the respective inhabitants of both nations.

"The two high contracting parties agree to cede and renounce all their rights, claims and pretensions to the territories described by the said line, that is to say, the United States hereby cede to his Catholic majesty, and renounce forever, all their rights, claims and pretensions to the territories lying west and south of the above-described line, and in like manuer his Catholic majesty cedes to the United States all his rights, claims and pretensions to any territories east and north of the said line, and for himself, his heirs and successors renounces all claim to the said territories forever." 8 Stat. 252, 254, 256, art. 3.

For the purpose of fixing the line with precision, and of placing landmarks to designate the limits of both nations, it was stipulated that each appoint a commissioner aud a surveyor, who should meet before the end of one year from the ratification of the treaty, at Natchitoches, on the Red river, and run and mark the line "from the mouth of the Sabine to the Red river, and from the Red river to the River Arkansas, and to ascertain the latitude of the source of the said River Arkansas, in conformity to what is above agreed upon and stipulated, and the line of latitude fortytwo to the South sea," making out plans and keeping journals of their proceedings, and the result to be considered as part of the treaty, having the same force as if it had been inserted therein. Art. 4. 8 Stat. 256.

At the date of the ratification of this treaty, the country now constituting Texas belonged to Mexico, part of the monarchy of Spain. Subsequently, in 1824, Mexico became a separate, independent power, whereby the boundary line designated in the treaty of 1819 became the line between the United States and Mexico.

On the 12th of January, 1828, a treaty between the United States and Mexico was concluded, and subsequently, April 5, 1832, was ratified, whereby, as between those governments, the validity of the limits defined by the treaty of 1819 was confirmed. 3 Stat. 372.

By a treaty concluded April 25, 1838, between the United States and the republic of Toxas, which was ratified and proclaimed October 12 and 13, 1838, it was declared that the treaty of limits made and concluded in 1828 between the United States and Mexico "is binding upon the republic of Texas." And in order to prevent futuro disputes and collisions in regard to the boundary between the two countries, as designated by the treaty of 1828, it was stipulated:

"Art. 1. Each of the contracting parties shall appoint a commissioner and surveyor, who shall meet before the termination of twelve months from the exchange of the ratification of this convention, at New Orleans, and proceed to run and mark that portion of the said boundary which extends from the mouth of the Sabine, where that river enters the Gulf of Mexico, to the Red river. They shall make out plans and keep journals of their proceedings, and the result agreed upon by them shall be considered as part of this convention, and shall have the same force as if it were inserted therein. *

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the boundary shall not have been so marked and run, jurisdiction to the same extent to which it has been heretofore usually exercised." 8 Stat. 511.

The treaty of 1838 had not been executed on the 1st day of March, 1845, when Congress, by joint resolution consented that "the territory properly included within and rightfully belonging to the republic of Texas, may be erected into a new State" upon certain conditions. 5 Stat. 797. Those conditions having been accepted, Texas, by a joint resolution of Congress passed December 29, 1845, was admitted into the Union on an equal footing with the original States in all respects whatever. 9 Stat. 108.

By an act of Congress approved September 9, 1850, certain propositions were made on behalf of the United States to the State of Texas, to become obligatory upon the parties when accepted by Texas, if such acceptance was given on or before December 1, 1850. One of these propositions was that Texas would agree that its boundary on the north should commence at the point at which the meridian of one hundred degrees west from Greenwich is intersected by the parallel of thirty-six degrees thirty minutes north latitude, and run from that point due west to the meridian of one hundred and three degrees west from Greenwich; thence due south to the thirty-second degree of north latitude; thence on the parallel of thirtytwo degrees of north latitude to the Rio Bravo del Norte, and thence with the channel of said river to the Gulf of Mexico; another, that Texas cede to the United States all her claim to territory exterior to the above limits and boundaries. In consideration of said establishment of boundaries, cession of claim to territory and relinquishment of claims, the United States agreed to pay to Texas the sum of $10,000,000, in a stock bearing five per cent interest, and redeemable at the end of fourteen years, the interest payable halfyearly at the treasury of the United States. 9 Stat. 446, chap. 49.

By an act of Assembly approved November 25, 1850, the above propositions were accepted by Texas, and it agreed to be bound by them according to their true import.

thence following that river to the place of beginuing, be and the same is hereby created into a county to be kuown by the name and style of the county of Greer." And by acts of its officers, proceeding under its statutes, Texas assumed and exercised control and jurisdiction of the territory constituting what is called the county of Greer.

Notwithstanding those assertions of control and jurisdiction, Texas, by an act approved May 2, 1882, made provision for running and marking the line in question. That act provided for the appointment by the governor of a suitable person or persons, who in conjunctiou with such person or persons as might be appointed by or on behalf of the United States for the same purpose, should run and mark the boundary line between the territories of the United States and the State of Texas in order that "the question may be definitely settled as to the true location of the one hundredth degree of longitude west from London, and whether the north fork of Red river, or the Prairie Dog fork of said river is the true Red river designated in the treaty between the United States and Spain, made February 22, 1819."

By an act of Congress approved January 31, 1885, provision was made for the appointment of a commission by the president to act with the commission to be appointed by the State of Texas, in ascertaining and marking the point where the one hundredth meridian of longitude crosses Red river, in accordance with the terms of the treaty of 1819, the person or persons so appointed to make report of his or their action in the premises to the secretary of the interior, who should transmit the same to Congress at its next session after the report was made. 23 Stat. 296.

Under the last-mentioned acts a joint commission was organized, and it assembled at Galveston, Texas, on February 23, 1886. Being unable to agree as to whether the stream now known as the north fork of the Red river, or that now called the south fork or Main Red river, was the river referred to in the treaty of 1819, the joint commission adjourned sine die with the understanding that each commission would make its report to the proper authorities and await instructions. The commissioners on the part of the United States reported that "the Prairie Dog Town fork is the true boundary, and that the monument should be placed at the intersection of the one hundredth meridian with this stream," while the commission on the part of Texas reported that "the north fork of Red river, as now named and delineated on the maps, is the Rio Rojo or Red river delineated on Melish's maps described in the treaty of February 22, 1819, and is the boundary line of said treaty to the point where the one hundredth degree of west longitude crosses the same."

1819.

After the commissioners of the United States and Texas had failed to reach an agreement, the Legislature of Texas, by an act approved February 8, 1860, declared "that all the territory contained in the following limits, to-wit: Beginning at the confluence of Red river and Prairie Dog river, thence running up Red river, passing the mouth of south fork and following main or North Red river to its intersection with the twenty-third degree of west longitude; thence due north across Salt Fork and Prairie Dog river, and

The United States claims to have jurisdiction over all the territory acquired by the treaty of 1819, con

five hundred and seventy-six and seventeen one-hundredths acres, between what has been designated as the Prairie Dog Town fork or Main Red river, and the north fork of Red river, being the extreme portion of the Indian Territory lying west of the north fork of the Red river, and east of the one hundredth meridian of west longitude from Greenwich, and that its right to said territory so far from having been relinquished has been continuously asserted from the ratification of the treaty of 1819 to the present time.

The bill alleges that the State of Texas, without right, claims, has taken possession of and endeavors to extend its laws and jurisdiction over the disputed territory, in violation of the treaty rights of the United States; that during the year 1887 it gave public notice of its purpose to survey and place upon the market for sale, and otherwise dispose of, that terri

tory, and that in consequence of its proceeding to eject bona fide settlers from certain portions thereof, President Cleveland, by proclamation issued December 30, 1887, warned all persons, whether claiming to act as officers of the county of Greer, or otherwise, against selling or disposing of, or attempting to sell or dispose of, any of said lands, or from exercising or attempting to exercise any authority over them, and "against purchasing any part of said territory from any person or persons whatever." 25 Stat. 1483.

The relief asked is a decree determining the true line between the United States and the State of Texas, and whether the land constituting what is called "Greer county" is within the boundary and jurisdiction of the United States or of the State of Texas. The government prays that its rights as asserted in the bill be established, and that it have such other relief as the nature of the case may require.

In support of the contention that the ascertainment of the boundary between a Territory of the United States and one of the States of the Union is political in its nature and character, and not susceptible of judicial determination, the defendant cites Foster v. Neilson, 2 Pet. 253, 307, 309; Cherokee Nation v. Georgia, 5 id. 1, 21; United States v. Arredondo, 6 id. 691, 711, and Garcia v. Lee, 12 id. 511, 517.

In Foster v. Neilson, which was an action to recover certain lands in Louisiana, the controlling question was as to whom the country between the Iberville and the Perdido rightfully belonged at the time the title of the plaintiff in that case was acquired. The United States, the court said, had perseveringly insisted that by the treaty of St. Ildefonso, made October 1, 1800, Spain ceded the disputed territory as part of Louisiana to France, and that France by the treaty of Paris of 1803 ceded it to the United States. Spain insisted that the cession to France comprehended only the territory which at that time was denominated Louisiana. After examining various articles of the treaty of St. Ildefonso Chief Justice Marshall, speaking for the court, said: "In a controversy between two nations concerning National boundary, it is scarcely possible that the courts of either should refuse to abide by the measures adopted by its own government. There being no common tribunal to decide between them, each determines for itself on its own rights, and if they cannot adjust their differences peaceably the right remains with the strongest. The judiciary is not that department of the government to which the assertion of its interests against foreign powers is confided, and its duty commonly is to decide upon individual rights, according to those principles which the political departments of the nation have established. If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous." Again: "After these acts of sovereign power over the territory in dispute, asserting the American construction of the treaty by which the government claims it, to maintain the opposite construction in its own courts would certainly be an anomaly in the history and practice of nations. If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequiv. ocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty, if the Legislature has acted on the construction thus asserted, it is not in its own courts that this construction is to be denied. A question like this respecting the boundaries of nations is, as has been truly said, more a political than a legal question, and in its discussion the courts of every country must respect the pronounced will of the Legislature."

In United States v. Arredondo the court, referring to Foster v. Neilson, said: "This court did not deem the settlement of boundaries a judicial but a political ques

tion; that it was not its duty to lead but to follow the action of the other departments of the government." The same principles were recognized in Cherokee Nation v. Georgia and Garcia v. Lee.

These authorities do not control the present case. They relate to questions of boundary between independent nations, and have no application to a question of that character arising between the general governmeut and one of the States composing the Union, or between two States of the Union. By the articles of confederation, Congress was made "the last resort on appeal in all disputes and differences" then subsisting or which thereafter might arise "between two or more States concerning boundary, jurisdiction or any other cause whatever," the authority so conferred to be exercised by a special tribunal to be organized in the mode prescribed in those articles, and its judgment to be final and conclusive. Art. 9. At the time of the adoption of the Constitution there existed, as this court said in Rhode Island v. Massachusetts, 12 Pet. 657, 723, 724, controversies between eleven States in respect to boundaries, which had continued from the first settlement of the colonies. The necessity for the creation of some tribunal for the settlement of these and like controversies that might arise, under the new government to be formed, must therefore have been perceived by the framers of the Constitution, and consequently among the controversies to which the judicial power of the United States was extended by the Constitution we find those between two or more States. And that a controversy between two or more States, in respect to boundary, is one to which, under the Constitution, such judicial power extends, is no longer an open question in this court. The cases of Rhode Island v. Massachusetts. 12 Pet. 657: New Jersey v. New York, 5 id. 284, 290; Missouri v. Iowa, 7 How. 660; Florida v. Georgia, 17 id. 478; Alabama v. Georgia, 23 id. 505; Virginia v. West Virginia, 11 Wall. 39, 55; Missouri v. Kentucky, id. 395; Indiana v. Kentucky, 136 U. S. 479, and Nebraska v. Iowa, 143 id. -, were all original suits in this court for the judicial determination of disputed boundary lines between States. In New Jersey v. New York, 5 Pet. 284, 290, Chief Justice Marshall said: "It has been settled by our predecessors, on great deliberation, that this court may exercise its original jurisdiction in suits against a State, under the authority conferred by the Constitution and existing acts of Congress." And in Virginia v. West Virginia, it was said by Mr. Justice Miller to be the established doctrine of this court "that it has jurisdiction of questions of boundary between two States of this Union, and that this jurisdiction is not defeated because in deciding that question it becomes necessary to examine into and construe compacts or agreements between those States, or because the decree which the court may render affects the territorial limits of the political jurisdiction and sovereignty of the States which are parties to the proceeding." So in Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 287, 288: "By the Constitution therefore this court has original jurisdiction of suits brought by a State against citizens of another State, as well as of controversies between two States. * As to 'controversies between two or more States.' The most numerous class of which this court has entertained jurisdiction is that of controver sies between two States as to the boundaries of their territory, such as were determined before the Revolution by the king in council, and under the articles of confederation (while there was no National judiciary) by committees or commissioners appointed by Congress."

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In view of these cases it cannot with propriety be said that a question of boundary between a Territory of the United States and one of the States of the Union is of a political nature, and not susceptible of