[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 J [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 [Poole et al. v. The Lessee of Fleeger et al.] ficient answer, that as a grant by a state of land to which she has no title is void, there is no obligation in the contract, no right of property to impair or violate. Whether the state will refund the purchase money, or grant an equivalent out of what she does own, (as was done by Pennsylvania, as to lands granted to her soldiers which were within the state of New York,) is optional with the state, but such grant cannot estop her from making a compact of boundary, or impose on her any obligation to confirm a void title. The other points raised in the argument, present the question of how far judicial power can be exercised in settling the boundaries of states. In a controversy between states as to their boundaries, the constitution has given original jurisdiction to this Court; whether it can be exercised by the inherent authority of the Court, or requires an act of congress to prescribe and regulate the mode of its exercise, need not be now examined; but it will be assumed ex gratia, that it is by a bill in equity, according to the practice of this Court, and the mode of proceedings in chancery. In the great case of Penn v. Lord Baltimore, Lord Hardwicke laid it down as an established rule, that the court of chancery had no original jurisdiction of a question relating to the boundaries between the two proprietary provinces of Pennsylvania and Maryland, in any other case than where there was an agreement between the two proprietaries for settling their boundaries. In such case chancery would enforce the agreement by a decree for a specific performance; but without an agreement the question was not one within the jurisdiction of the courts of the kingdom, and was only cognizable in council before the king, as the lord paramount under whom the provinces were held in soccage, by the tenure of fealty and some nominal reservation. "The subordinate proprietors may agree how they may hold their rights between themselves;" "if a settlement of boundaries is fairly made without collusion, the boundaries so made are to be presumed to be the true and ancient limits," made between parties in an adversary interest, each concerned to preserve his own limits, and no other or pecuniary compensation pretended; 1 V. Sr. 447 to 454. It is then the agreement, or compact, which alone gives jurisdiction to a court of equity, to decree on the boundaries of provinces owned by proprietaries subordinate to the king; otherwise, it is a political question, to be settled in council, and not a judicial one for any court. It cannot be doubted, that the king in council was competent, by an order of council, to settle any question of disputed boundary between those colonies which had royal governments by their charters, or in those provinces which were under proprietary governments, as he was equally the lord paramount of all. When the colonies and provinces became states by the revolution, they adopted this principle in the article of confederation; by delegating to congress, as the then only power which was paramount over contending states, the power to appoint a tribunal to settle their dis [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 |
