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[Poole et al. v. The Lessee of Fleeger et al.] is included in the exception, is excluded from the grant, according to the maxim laid down in Co. Litt. 47, a. Si quis rem dat et portem retinet illa pars quam retinet semper cum eo est et semper suit;” 6 Pet. 310. In a subsequent case, at the same term, the same rule and maxim was adopted, and applied to a treaty with a foreign nation. “It became, then, all-important to ascertain what was granted, by what was excepted. The king of Spain was the grantor, the treaty was his deed, the exception was made by him, and its nature and effect depended on his intention, expressed by his words, in reference to the thing granted, and the thing reserved and excepted, in and by the grant;” 6 Pet. 741. As this was a treaty of cession, granting soil and sovereignty, it is, in the latter respect, precisely analogous to the grant of power, by the constitution, to the federal government; so that its exceptions, prohibitions, and reservations, as well as grants, must be interpreted as all other instruments, grants, treaties, and cessions, taking the words as the words of the grantor, referred to the subject matter granted or excepted, &c. Assuming, on the reasons and authority referred to in the preceding general views, that the constitution is a grant made by the people of the several states, by their separate ratifications, and that the prohibition on their pre-existing powers are their separate voluntary covenants, restraining the exercise of those which are reserved, over the subjects prohibited, these conclusions necessarily follow:— That a prohibition upon a state, as to any given subject, can, by no just reasoning, enlarge or vary the powers delegated to congress, so as to bring, within its jurisdiction, any matters not within the enumerations of the powers granted. That where the assent of congress is made necessary to validate any law of a state, congress can only assent or dissent thereto or therefrom, but can exercise no legislative power over the subject matter, without some express authority to revise and control such state law, by regulations of its own. And that in the absence of any power in congress, to do more than simply assent or dissent, the assent is a condition; and when once given to an act of a state, it has the same validity as if no prohibition had been made in the constitution against the exercise of any right of the state, to do the act in virtue of its reserved powers, or any condition in any way imposed, to affect its original inherent sovereignty. The assent of congress is made an exception to the prohibition, and when given, takes the case out of the prohibition, and leaves the power of the state uncontrolled, on the common law rule, that “an exception out of an exception leaves the thing unexcepted;” 4 D. C. D. 290. “No state shall, without the consent of congress, enter into any agreement or compact with another state, or a foreign power.” By the terms, then, of this clause, whenever the consent of congress is given to any such agreement or compact, the prohibition is fully satisfied and ceases to operate; the states stand towards each [Poole et al. v. The Lessee of Fleeger et al.] other, and foreign powers, as they did before the adoption of the constitution, so far as this sentence abridged their reserved powers. But as the consent of congress cannot dispense with the prohibition in the first sentence of this section, it becomes, by necessary implication, a proviso or limitation to the second. That such agreement or compact shall not be a treaty, alliance, or confederation; if it does not come within the constitutional meaning of these terms, the agreement or compact is valid, if made with the consent of congress; if it does, it is void by the first part of the prohibition, which annuls whatever is done in opposition to it. . A reference to the articles of confederation will show the sense in which these terms are used in the constitution, in their bearing on this case. Article 6. “No state, without the consent of the United States, in congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty, with, any king, prince, or state. No two or more states shall enter into any treaty, confederation, or alliance whatever, between them, without the consent of the United States in congress assembled, specifying accurately the purposes for which the same is to be entered into, and how long it shall continue;” 1 Vol. Laws, 15. Article 9. “The United States, in congress assembled, shall have the sole and exclusive right and power of sending and receiving ambassadors, entering into treaties and alliances,” &c. “The United States,” &c. “shall also be the last resort on appeal, in all disputes and differences, now subsisting, or that may hereafter arise, between two or more states, concerning boundary, jurisdiction, or any cause whatever, which authority shall always be exercised in the manner following,” &c., 1 Vol. 16. “All controversies respecting the private right of soil, claimed under different grants of two or more states, whose jurisdiction as they may respect such lands, and the states which passed such grants, are adjusted, the said grants or either of them being, at the same time, claimed to have originated antecedent to such settlement of jurisdiction, shall, on petition of either party to the congress of the United States, be finally determined as near as may be, in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different states;” l Laws, 17. From these provisions it is most manifest, that the framers of the constitution had the whole subject matter directly before them, and substituted the prohibitions in the tenth section of the first article, for those in the sixth article of confederation, with two important changes. . 1. In the discrimination between the prohibition on states, in relation to foreign powers, and between themselves, apparent in the two first sentences of the sixth article of confederation. All embassies to or from, and all conferences or agreements with foreign powers, are [Poole et al. v. The Lessee of Fleeger et al.] prohibited by the first sentence; while the second sentence prohibits only treaties, alliances, and confederations, between two or more states. In each sentence the consent of congress is made a condition; but in the second there is a further condition, that the purposes and duration of the treaty shall be specified, and the words conference or agreement are omitted, so that it prohibited only such as were treaties, &c., and left the states free to make agreements or compacts, touching their boundaries, without the consent of congress. Hence we find, that after these articles were ratified, the states made agreements, compacts, or conventions with each other, settling their boundaries, or confirming those previously made, of which the following are instances: Pennsylvania with New Jersey, in 1783; 2 Smith’s L. 77; with Virginia in 1784; ib. 261; with New York in 1786, confirmed in 1789; ib. 510; Georgia with South Carolina in 1787; Laws of Georgia, App. 752; none of which refer to any consent of congress. But in the constitution, agreements and compacts between the states and with foreign powers, are put on the same footing, being prohibited if congress does not consent, and valid if consent is given, and the condition of specifying the purposes and duration thereof, wholly omitted; thus leaving the power of the states subject only to the condition of consent. 2. The constitution gives congress no power to act on the boundaries of states, or on controversies about the titles to lands claimed under grants from different states; its whole jurisdiction consists in the power of assenting or dissenting to an agreement or compact of boundary. The only part of the constitution which grants any power on this subject to the federal government, is in the third article, which declares, “That the judicial power of the United States shall extend, &c., to controversies between two or more states, between citizens of the same state, claiming land under grants of different states,” &c. These are the two cases which were defined in the two sentences of the ninth article of confederation, on which congress could act, but which the constitution has authorized no other than the judicial power to take within its cognizance. From this view of the constitution, in its application to the agreements and compacts between states respecting their boundaries, the results are, to my mind, most clear and satisfactory; that when congress has exercised the only power confided to them over this subject, by consenting to the compact, their whole jurisdiction is completely functus officio. Such compacts are, thenceforth, the acts of sovereign states, which, interfering with no power granted to the United States by the constitution, or prohibited by it to the states, must be deemed to be an exercise of their reserved powers, neither given, or in any way abridged by that instrument, and by the thirtyfourth section of the judiciary act, are binding as rules of decision by this and all other courts of the United States, “in suits at common law.” The consent of congress has been given to this compact,
[Poole et al. v. The Lessee of Fleeger et al.]
and the present suit is one at common law; there can be then no doubt, that the compact must be taken as made by competent authority, and as prescribing the rules by which the rights of the contending parties must be ascertained.
This suit does not present for the action of the judicial power, “a controversy between two or more states,” or “between citizens of the same state, claiming lands under grants of different states,” but a controversy “between citizens of different states,” in which the circuit court was bound to decide precisely as the state courts were; 2 Pet. 656; 5 Pet. 401; in whom the title to the premises in dispute is vested, which lie south of Walker's line, and north of latitude 36° 30' north.
It is admitted that the northern charter boundary of North Carolina is 36° 30' of north latitude, which is so declared in the constitution of that state and Tennessee; neither state therefore had any right to lands north of that line; having no original title thereto, any grants from either state would be on that ground merely void, according to the settled doctrine of this Court; 9 Cr. 99; 5 Wh. 303; 11 Wh. 384; 6 Pet. 730. It is clear then, that as the lands in dispute are situated without this boundary, those states had no title which could pass by their grants to the defendants, and that the plaintiff must recover under their title by warrant under Virginia, consummated by a patent from Kentucky, unless the defendants have, in some way, acquired a better title than the state under whom they claim, had by original right. As Virginia had the oldest charter, no part of her territory could be taken from her without her consent, or an express grant by the king, by his prerogative right of disposing of all the vacant lands in the colonies before the revolution, except within the provinces granted to proprietaries. Such grant or consent is not pretended, but the defendants rely on the implied consent of Virginia and Kentucky, in laws recognising Walker’s line as the boundary between them and North Carolina and Tennessee, and acts of ownership and possession, long exercised by these states, over lands between that line and 36° 30' north latitude, as giving to them and the grantees under them, a title by prescription. These grounds of defence present very important points for consideration, and in my opinion are of a political, rather than a judicial nature.
The consent of congress to the compact, strips the case of every provision of the constitution which can affect it, saving the grant of the judicial power over “controversies between two or more states,” which I take to be suits between states, touching matters in controversy between them. But here there is no controversy between states, nor can a suit be sustained in the circuit court, where a state is a party, this Court alone having original jurisdiction of such cases; this is the ordinary action of ejectment, in which each party rests upon his own title. The plaintiff on a grant from a state, whose original title and jurisdiction confessedly embraced the land in question; the
[Poole et al. v. The Lessee of Fleeger et al.]
defendant under grants from states, who as confessedly had no original right of soil or jurisdiction to the lands they granted; so that every question affecting the rights of other states, arises collaterally in a suit between two individuals. The states have adjusted all matters heretofore in controversy between them, by a solemn compact, the sixth article of which places the grant to the plaintiff on its original validity under the laws of the states from which it emanated and was perfected, and within whose acknowledged rightful boundary the lands granted are situated. If this compact is valid, the defendant has no standing in court; if it can be declared invalid in a collateral action, on the grounds contended for, it follows as a necessary consequence, that any judicial power, state or federal, is competent to annul it, though it is consistent with the constitution of the state, and ratified according to that of the United States; S. P. 10 Pet. 474. The exigencies of the defendants’ case require them to go to this extent, for the terms of the sixth article are neither ambiguous or admit of any construction which can give the defendants any protection, unless they can show the plaintiffs’ “grant to be invalid and of no effect, or that they have paramount and superior titles to the land covered by such Virginia warrants;” to do which they must break through the constitution of the states under whose grants they claim, as well as the compact assented to by congress. There could be no title paramount to a Virginia warrant, duly taken out, entered, surveyed, and patented, unless that state had in some way lost her original right of soil and jurisdiction north of latitude 36°30'; or Kentucky had encroached on the superior title of Tennessee, who had no pretensions to the territory north of that line by charter, who renounced them in her constitution, and by solemn compact stipulated expressly that Virginia warrants should be considered as rightfully entered for this land.
This leaves the defendant but one position to assume, in which he can invoke the action of the judicial power, which is, that before the compact was made, the state of Tennessee had for the reasons set forth in the argument, or on some other ground, became incompetent to make a compact with Kentucky, by which the boundary between them should be any other than Walker’s line. In other words, that the state was by her grants to the defendants, or those under whom they claimed, estopped from so settling her boundaries, as to exclude the lands she had granted; that Virginia and Kentucky were also estopped from making grants of land within the disputed territory by their adoption of Walker’s line, and because North Carolina and Tennessee had acquired a right by prescription; of consequence, that though these states had granted lands to which they had no title originally, yet when their title by prescription attached, their grants became valid, and no compact between Tennessee and Kentucky could divest them, or impair their legal effect.
So far as the argument rests on the prohibition of the constitution against impairing the obligation of the contract of grant, it is a suf