and right, present themselves? It is to yield rather than encroach; the duty is reciprocal, and will, no doubt, be met in the spirit of moderation and comity. In the conflicts of power and opinion, inseparable from our very peculiar relations, cases may occur, in which the maintenance of principle, and the administration of justice according to its innate and inseparable attributes, may require a different course; and when such cases do occur, our courts must do their duty; but until then, it is administering justice in the true spirit of the constitution and laws of the United States, to conform, as nearly as practicable, to the administration of justice in the courts of the state. In the present instance, the act was conceived in the true spirit of distributive justice; violated no principle; was easily introduced into the practice of the courts of the United States; has been there acted upon through a period of eight years; and has been properly treated as a part of the law of that Court. But, it is contended, that it was improperly applied to the present case, because the note bears date prior to the passage of the law; and this certainly presents a question which is always to be approached with due precaution, to wit, the extent of legislative power over existing contracts. But what right is violated, what hardship or injury produced, by the operation of this act? It was passed for the relief of the defendant, and is effectual in relieving him from a weight of costs, since it gives to the plaintiff no more than the costs of a single suit, if he should elect to bring several actions against drawer and endorser. Nor does it subject the defendants to any inconvenience, from a joint action; since it secures to each defendant, every privilege of pleading and defence, of which he could avail himself, if severally sued. The circuit court has incorporated the action, with all its incidents, into its course of practice; and having full power by law to adopt it, we see no legal objection to its doing so, in the prosecution of that system, upon which it has always acted. It cannot be contended that the liabilities of the defendants, under their contract, have been increased, or even varied; and as to change, in the mere form of the remedy, the doctrine cannot be maintained, that this is forbidden to the legislative power or to the tribunal itself, when vested with full power to regulate its own practice. Judgment affirmed with costs. Thompson Wilson & al. vs. The Black-Bird Creek Marsh Company. This was on a writ of error, from the High Court of Errors and Appeals of the state of Delaware. The defendants were incorporated by an act of the legislature passed in 1822, and the owners of the low grounds lying on both sides of Black-Bird Creek, between Mathew's landing and the river Delaware, were authorized to construct a dam across the creek, wherever a majority of them chose, and also to bank the low grounds, &c. The company afterwards proceeded to erect a dam in the creek, obstruct ing the navigation, and also to embank the creek. The plaintiffs in error, being owners of a sloop called the Sally, of 95 tons, regularly licensed and enrolled, broke, and injured the dam, for which an action of trespass, vi et armis, was instituted against them in the Supreme Court of Delaware. The declaration being filed, the defendants below pleaded that the place where the trespass was committed was a part of the said creek: it being a public and common navigable creek, in the nature of a highway, in which the tides have always flowed and reflowed, and where the citizens of Delaware, and of all the United States, had a right to navigate, and to pass and repass at pleasure. It then aver red the bank and dam to be wrongfully erected, so that without pulling up and destroying the piles, &c., the said defendants could not pass with the said sloop, along the said creek, and that the said defendants, in order to remove the said obstructions, pulled up, &c as in the declaration mentioned, doing no unnecessary damage. &c. To this plea the plaintiffs below demurred, and the court sustained the demurrer. This judgment was affirmed in the Court of Appeals, and the record remanded for assessment of damages. Final judgment was entered on the verdict, and it was again carried to the Court of Appeals where it was affirmed, and the cause was now brought before this court for review. The cause was argued on the part of the plantiffs in error, by Mr. Coxe, and by the Attorney General, for the defendants. Chief Justice Marshall delivered the opinion of the court. The defendants in error deny the jurisdiction of this court, because, they say, the record does not show that the constitutionality of the act of the legislature, under which the plaintiff claimed to support his action, was drawn into question. Undoubtedly the plea might have stated in terms that the act, so far as it authorized a dam across the creek, was repugnant to the constitution of the United States; and it might have been safer, it might have avoided any question respecting jurisdiction, so to frame it. But we think it impossible to doubt that the constitutionality of the act was the question, and the only question, which could have been dis cussed in the state court. That question must have been discussed and decided. The plaintiffs sustain their right to build a damn across the creek by the act of the assembly. Their declaration is founded upon that act. The injury of which they complain is to a right given by it. They do not claim for themselves any right independent of it. They rely entirely upon the act of assembly. The plea does not controvert the existence of the act, but denies its capacity to authorize the construction of a dam across a navigable stream, in which the tide ebbs and flows; and in which there was, and of right ought to have been, a certain common and public way in the nature of a highway This plea draws nothing into question but the validity of the act; and the judgment of the court must have been in favour of its validity. Its consistency with, or repugnancy to the constitution of the United States, necessarily arises upon these pleadings, and must have been determined. This court has repeatedly decided in favour of its jurisdiction in such a case. Martin vs. Hunter's lessee, Miller vs. Nicholls, and Williams vs. Norris, are expressly in point. They establish, as far as precedents can establish any thing, that is not necessary to state in terms on the record, that the constitution or a law of the United States was drawn in question. It is sufficient to bring the case within the provisions of the 25th section of the judicial act, if the record shows, that the constitution, or a law, or a treaty of the United States, must have been misconstrued, or the decision could not be made. Or, as in this case, that the constitutionality of a state law was questioned, and the decision has been in favour of the party claiming under such law. The jurisdiction of the Court being established, the more doubtful question is to be considered, whether the act incorporating the Black-Bird Creek Marsh Company is repugnant to the constitution, so far as it authorizes a dam across the creek. The plea states the creek to be navigable, in the nature of a highway, through which the tide ebbs and flows. The act of assembly by which the plaintiffs were authorized to construct their dam, shows plainly that this is one of those many creeks, passing through a deep level marsh adjoining the Delaware, up which the tide flows for some distance. The value of the property on its banks must be en hanced by excluding the water from the marsh, and the health of the inhabitants probably improved. Measures calculated to produce these objects, provided they do not come into colli sion with the powers of the general government, are undoubtedly within those which are reserved to the states. But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance. The counsel for the plaintiffs in error insist that it comes in conflict with the power of the United States" to regulate commerce with foreign nations and among the several states." If congress had passed any act which bore upon the case; any act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks into which the tide flows, and which abound throughout the lower country of the middle and southern states; we should feel not much difficulty in saying that a state law coming in conflict with such act would be void. But congress has passed no such act. The repugnancy of the law of Delaware to the constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several states; a power which has not been so exercised as to affect the question. We do not think that the act empowering the Black-Bird Creek Marsh Company to place a dam across the creek, can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject. There is no error, and the judgment is affirmed. James Foster & al. vs. David Neilson. The facts in this cause are so particularly stated, in the opinion of the court, as to render any preliminary statement unnecessary. The case was argued by Mr. Coxe and Mr. Webster for the plaintiffs, and by Mr. Jones for the defendants Chief Justice Marshall delivered the opinion of the court. This suit was brought by the plaintiffs in error, in the court of the United States for the eastern district of Louisiana, to recover a tract of land lying in that district, about thirty miles east of the Mississippi, and in the possession of the defendant. The plaintiffs claimed under a grant for 40,000 arpents of land, made by the Spanish governor, on the 2d of January, 1804, to Jayme Joydra, and ratified by the king of Spain on the 29th of May, 1804. The petition and order of survey are dated in September, 1803, and the return of the survey itself was made on the 27th of October in the same year. The defendant excepted to the petition of the plaintiffs, alleging that it does not show a title on which they can recover; that the territory, within which the land claimed is situated, had been ceded, before the grant, to France, and by France to the United States; and that the grant is void, being made by persons who had no authority to make it. The court sustained the exception, and dismissed the petition. The cause is brought before this court by a writ of error. The case presents this very intricate, and, at one time very interesting question: To whom did the country between the Iberville and the Perdido rightfully belong, when the title now asserted by the plaintiffs was acquired? discussed with great talent and research, by the government of the United States and that of Spain. The United States have perseveringly and earnestly insisted, that by the treaty of St. Ildefonso, made on the 1st of October, in the year 1800, Spain ceded the disputed territory as part of Louisiana to France; and that France, by the treaty of Paris, signed on the 30th of April, 1803, and ratified on the 21st of October, in the same year, ceded it to the United States. Spain has with equal perseverance and earnestness maintained, that her cession to France comprehended that territory only which was at that time denominated Louisiana, consisting of the island of New Orleans, and the country she received from France west of the Mississippi. Without tracing the title of France to its origin, we may state with confidence that at the commencement of the war of 1756, she was the undisputed possessor of the province of Louisiana, lying on both sides the Mississippi, and extending eastward beyond the bay of Mobile. Spain was at the same time in possession of Florida; and it is understood that the river Perdido separated the two provinces from each other. : Such was the state of possession and title at the treaty of Paris, concluded between Great Britain, France, and Spain, on the 10th day of February, 1763. By that treaty, France ceded to Great Britain the river and port of the Mobile, and all her possessions on the left side of the river Mississippi, except the town of New-Orleans and the island on which it is situated and by the same treaty Spain ceded Florida to Great Britain. The residue of Louisiana was ceded by France to Spain, in a separate and secret treaty between those two powers. The king of Great Britain being thus the acknowledged sovereign of the whole country east of the Mississippi, except the island of New-Orleans, divided his late acquisition in the south into two provinces, East and West Florida. The latter comprehended so much of the country ceded by France as lay south of the 31st degree of north latitude, and a part of that ceded by Spain. By a treaty of peace between Great Britain and Spain, signed at Versailles on the 3d of September, 1783, Great Britain ceded East and West Florida to Spain: and those provinces continued to be known and governed by those names, as long as they remained in the possession and under the dominion of his catholic majesty. On the 1st of October, in the year 1800, a secret treaty was concluded between France and Spain, at St. Ildefonso, the third article of which is in these words: "His catholic majesty promises and engages on his part to retrocede to the French republic, six months after the full and entire execution of the conditions and stipulations relative to his royal highness the duke of Parma, the colony or province of Louisiana, with the same extent that it now has in the hands of Spain, and that it had when France possessed it, and such as it should be after the treaties subsequently entered into between Spain and the other states." The treaty of the 30th of April, 1803, by which the United States acquired Louisiana,. after reciting this article, proceeds to state, that "the first consul of the French Republic doth hereby cede to the United States, in the name of the French republic, forever and in full sovereignty, the said territory, with all its rights and appurtenances, as fully and in the same manner as they have been acquired by the French republic, in virtue of the above mentioned treaty concluded with his catholic majesty." The 4th article stipulates, that there shall be sent by the government of France a commissary to Louisiana, to the end that he do every act necessary, as well to receive from the officers of his ca tholic majesty the said country, and its dependencies, in the name of the French republic, if it has not been already done, as to transmit it in the name of the French republic to the commissary or agent of the United States." On the 30th of November, 1803, Peter Clement Laussatt, colonial prefect and commissioner of the French republic, authorized by full powers dated the 6th of June, 1803, to receive the surrender of the province of Louisiana, presented those powers to Don Manuel Salcedo, governor of Louisiana and West Florida, and to the marquis de Casa Calvo, commissioners on the part of Spain, together with full powers to them from his catholic majesty to make the surrender. These full powers were dated at Barcelona the 15th of October, 1802. The act of surrender declares, that in virtue of these full powers, the Spanish commissioners, Don Manuel Salcedo and the marquis de Casa Calvo, "put from this moment the said French commissioner, the citizen Laussatt, in possession of the colony of Louisiana and of its dependencies, as also of the town and island of New-Orleans, in the same extent which they now have, and which they had in the hands of France when she ceded them to the royal crown of Spain, and such as they should be after the treaties subsequently entered into between the states of his catholic majesty and those of other powers." 46 The following is an extract from the order of the king of Spain referred to by the commissioners in the act of delivery. 'Don Carlos, by the grace of God," &c. "Deeming it convenient to retrocede to the French republic the colony and province of Louisiana, I order you, as soon as the present order shall be presented to you by general Victor, or other officer duly authorized by the French republic, to take charge of said delivery; you will put him in possession of the colony of Louisiana and its dependencies, as also of the city and island of New-Orleans, with the same extent that it now has, that it had in the hands of France when she ceded it to my royal crown, and such as it ought to be after the treaties which have successively taken place between my states and those of other powers." Previous to the arrival of the French commissioner, the governor of the provinces of Louisiana and West Florida, and the marquis de Casa Calvo, had issued their proclamation, dated the 18th of May, 1803; in which they say, "his majesty having before his eyes the obligations imposed by the treaties, and desirous of avoiding any disputes that might arise, has deigned to resolve that the delivery of the colony and island of New Orleans, which is to be made to the general of division Victor, or such other officer as may be legally authorized by the government of the French republic, shall be executed on the same terms that France ceded it, to his majesty; in virtue of which, the limits of both shores of the river St. Louis or Mississippi, shall remain as they were irrevocably fixed by the 7th article of the definitive treaty of peace, concluded at Paris the 10th of February, 1763, according to which the settlements from the river Manshac or Iberville, to the line which separates the American territory from the dominions of the king, remain in possession of Spain, and annexed to West Florida." On the 21st of October 1803, congress passed an act to enable the president to take possession of the territory ceded by France to the United States: in pursuance of which commissioners were appointed, to whom monsieur Laussatt, the commissioner of the French republic, surrendered New-Orleans and the province of Louisiana on the 20th of December, 1803. The surrender was made in general terms; but no actual possession was taken of the territory lying east of New-Orleans. The government of the United States, however, soon manifested the opinion that the whole country originally held by France, and belonging to Spain when the treaty of St. Ildefonso was con |