[13]

[14]

of Georgia as early as could be peaceably done.
See Agreement, 1 Bioren's L. 488. In pursu-
ance of this agreement the title of the Creek
Nation was extinguished throughout most of
the southern part of the State by the Treaties
me with the Nation in 1802, 1805 and 1814.
7 Stat. at L. 68, 96, 120.

ment appointed Andrew Ellicott, Esq., as com- | to extingush the Indian title within the State
missioner, in May, 1796, and a surveyor, to as-
sist him, and they proceeded to Natchez, and
after much procrastination on the part of the
Spanish authorities, a Captain Stephen Minor
was appointed on the part of Spain, and the
joint commissioners of the two countries, in
1798 and 1799, ran and marked the boundary
line from the Mississippi to the Chattahoochee,
and determined the geographical position of the
junction of the Chattahoochee and Flint Rivers
to be in N. latitude 30° 42′ 8" and W. lon-
gitude 84° 53′ 15". The hostility of the Creek
Indians prevented them from running the line
east of the Chattahoochee; but they sailed
around the coast of Florida, and up the River St.
Mary's, and fixed upon the eastern terminus of
the straight line prescribed in the Treaties, at
the head of the St. Mary's, where it issues from
the Okefenoke Swamp, and erected a mound
of earth to designate the spot. This was in
February, 1800. The mound is still in exist-
ence, and is called Ellicott's Mound, and appears
on all the principal maps of that part of the
country. The commissioners, supposing that
the true head of the river was located in the
swamp, agreed that it should be considered as
distant two miles northeast from the mound,
and that in running the boundary line from the
Chattahoochee it should be run to the north of
the mound, and not nearer to it than one mile.
The point fixed upon as the head of the St.
Mary's was determined by observations to be in
N. latitude 30° 21′ 394", W. longitude 82° 15′ 45′′.
The distance by straight line, or great circle,
from the junction of the Chattahoochee and
Flint Rivers to the head of the St. Mary's, was
calculated at 155 miles, and the initial course
for running the line from each terminus, was
given, with the proper corrections to be made
at intervals in order to follow the great circle.
The commissioners signed a joint report of their
proceedings, and transmitted the same to their
respective governments. All these particulars
are set forth in Mr. Ellicott's journal, and are
matters of public history. See Ellicott's Journal;
Phila. 1803.

The State being now desirous of disposing of
her lands and introducing settlers thereon, nat
urally turned her attention to the question of
the true location of the boundary line between
her own territory and that of the Spanish Prov-
ince of Florida. Some person, professing to be
better posted than others as to the topography
of the country about the head of St. Mary's
River, asserted that the commissioners, Ellicott
and Minor, in seeking its source, had ascended
the wrong branch, namely, the north branch;
whereas the true St. Mary's, or main stream,
came from the west and took its source many
miles further south than the point fixed upon
by them. The Legislature of Georgia took up
the matter, and in December, 1818, the Senate
passed a resolution requesting the Governor to
appoint proper persons to proceed, without de-
lay, to ascertain the true head of St. Mary's
River; and if it should appear that the mound
thrown up by Ellicott and Minor was not at
the place set forth in the Treaty with Spain,
that they make a special report of the facts,
and that the Governor communicate the same
to the President of the United States, with a
request that the lines might be run agreeably
to the true intent and meaning of the Treaty.
Exec. Doc. No.77, Sess. 1, 23d Cong. pp. 11, 86.
In pursuance of this request the Governor
appointed three eminent engineers, Generals
Floyd, Thompson and Blacksper, to make the
examination suggested, and immediately, by a
letter dated February 17, 1819, communicated
the fact to the Executive Government at Wash-
ington. The engineers made a careful recon-
noissance of the country about the head streams
of the St. Mary's, accompanied by the person
who had made the supposed discovery, and be-
came satisfied that his information was at fault,
and reported that, after a careful examination,
they found the head of the river to agree with
the report made by Mr. Ellicott. This result
was also communicated to the Executive at
Washington; and thus ended, for the time be-
ing, the claim on the part of Georgia to have
the eastern terminus of the boundary line read
The country in the region traversed by this justed and changed. Soon after this proceed-
line was occupied, in the early part of the cen- ing, in 1819, the State employed one J. C. Wat-
tury, by the nation of Creek Indians, and son to run and mark the line. This is the ori-
there was no immediate demand for having it gin of the line called Watson's line; and to this
run and marked. And as, under the Constitu-line the State laid out its counties and town-
tion, no State could enter into a treaty with the
Indians, it became the interest of Georgia to
make some arrangement with the Government
of the United States to take measures for the
gradual removal of Indian occupancy. A con-
vention was accordingly entered into between
Georgia and the United States, on the 24th of
April, 1802, by which the former ceded to the
latter all her territory between the Chattahoo-
chee and the Mississippi Rivers, and the United
States ceded to Georgia all their right to any
public lands south of Tennessee and the Caro-
linas, and east of the Chattahoochee, not within
the proper boundaries of any State; and agreed

It thus appears that, by authority of the United States and Spain, the termini of the line in question were fixed and settled in February, 1800. It only remained for any competent surveyor to follow the directions of the commissioners in order to trace the actual boundary line on the ground.

ships, surveyed its public lands, and made
grants to settlers. But it nowhere appears that
this line ran to Ellicott's mound, or near to it;
on the contrary, it would seem from other con-
ceded facts, that it ran considerably south of
it. As we have already seen, the lands in con-
troversy in the present case adjoin this line, be-
ing situated on the north side of it.

Florida was ceded to the United States in
1819, and possession of the territory was taken
by Gen. Jackson in July, 1821. In 1825, the
Surveyor-General of the Government for the
Territory of Florida, preparatory to a survey
of the public lands therein, caused the bound-

[151

[16]

[17]

ary line between Georgia and Florida to be run | United States by the Treaty of 1819. 5 Stat.
out and marked by D. F. McNeil, a deputy sur- at L. 743. Renewed efforts were soon after-
veyor, and the line so run was called McNeil's wards made by Florida and Georgia to effect a
line. At the point in controversy, which (as settlement of the boundary, but without suc-
before said) is about midway between the two cess.
extremities of the straight line called for by the
Treaty, it ran, according to the testimony, 14
chains to the north of Watson's line; but how
near it approached Ellicott's mound at the east-
ern extremity does not appear. The govern-
ment surveys in Florida were made to bound
on this line; and, of course, overlapped, more
or less, the Georgia surveys and grants extend-
ing to Watson's line.

In 1850 the State of Florida filed a bill in this court against the State of Georgia, to procure a determination of the controversy. In December Term, 1854, the Attorney-General was allowed to intervene on the part of the United States. Florida v. Georgia, 58 U. S. 17 How. 478 [15:181]. Evidence was taken by the parties, but in consequence of the war, and the final settlement of the controversy by mutual agreement, the cause was never brought to a hearing.

In 1857 the Governors of the two States had a conference which resulted in an agreement by which Georgia relinquished her pretensions to have the eastern terminus of the line changed, and the termini fixed by the commissioners, Ellicott and Minor, were substantially adopted. The following resolutions and enactments of the Legislatures of the two States will show the course of the negotiation, and the terms of the arrangement finally concluded between them. On the 24th of December, 1857, the following resolution was adopted by the Legislature of Georgia, to wit:

The State of Georgia, about this period, per-
haps in consequence of the location of McNeil's
line, by a communication of her Governor to
the Government of the United States, requested
that joint measures should be undertaken for a
mutual and final settlement of the boundary.
The matter being referred to Congress, an Act
was passed on the 4th of May, 1826, by which
the President was authorized, in conjunction
with the constituted authorities of the State of
Georgia, to cause to be run and distinctly
marked the line dividing the Territory of Flor-
ida from the State of Georgia, from the junc-
tion of the Rivers Chattahoochee and Flint, to
the head of St. Mary's River; and for that pur-
pose, to appoint a commissioner or surveyor, 'Whereas, in the matter of controversy now
or both; "Provided, that the line so to be run pending in the Supreme Court of the United
and marked shall be run straight from the junc-States, between the State of Florida and the
tion of said Rivers Chattahoochee and Flint, to State of Georgia, touching the boundary line of
the point designated as the head of St. Mary's the two States, we deem it of much importance
River by the commissioners appointed under that this protracted and expensive litigation
the third article of the Treaty (with Spain), made should cease; and whereas, with a view to the
October 27, 1795." 4 Stat. at L. 157. This settlement of the question, a negotiation has
Act, it will be seen, adopted the eastern termi-been progressing between the late Executives
nus of the line as settled by Ellicott and Minor.
The President thereupon appointed ex-Gov-
ernor Thomas M. Randolph, of Virginia, as
commissioner under the Act, and the Executive
of Georgia appointed Thomas Spalding; and
the commissioners entered upon their joint du-
ties in February, 1827, and appointed John
McBride as their common surveyor. They con-
tinued their operations for over two months,
but the Georgia commissioner having, as he
supposed, notwithstanding the report of the
commissioners of 1819, discovered that the
western branch of the St. Mary's River was the
largest and longest stream, and, therefore, the
true river, the Governor of the State suddenly
brought the survey to a close by recalling the
assent of Georgia and withdrawing the powers
of her commissioner. Exec. Doc. 77, Sess. 1,
23d Cong. pp. 31, 97.

From this time onward, for many years, a controversy was carried on between Georgia, on the one side, and the United States and Florida, on the other, with regard to this boundary line; Georgia contending that the line should be run to Lake Randolph, the head of the western or southern branch of the St. Mary's, and the United States and Florida contending that it should run to the head of the northern branch, as settled and determined by the commissioners, Ellicott and Minor, under the Treaty. Id. and Exec. Doc. 152, Sess. 1, 23d Cong.

In 1845, Florida was admitted into the Union as a State, embracing all the territories of East and West Florida, as ceded by Spain to the

of the aforesaid States, the result of which was
an agreement to adopt the terminal points of
the present recognized line as the true terminal
points of the boundary line, to be resurveyed,
corrected and marked, provided it is shown by
either party that the present line is incorrect,
the agreement aforesaid being made subject to
the ratification of the Legislatures of the two
States:

"Resolved 1, That we do hereby ratify the ac-
tion of the late Executive of this State, in ac-
cepting the proposition of the Governor of
Florida, to adopt the terminal points of the
present recognized line as the true terminal
points of the boundary line, and will regard,
adopt and act upon the present line, as run and
recognized between those points, as the settled
boundary of the two States, or will so recognize
and adopt any other line between those points
which may be ascertained and established on a
resurvey and remarking of the boundary, pro-
vided said boundary correction is made by vir-
tue of law, and by joint action of the States
aforesaid.

"2. Beit further resolved by the authority aforesaid, That should it be deemed essential or important by either State to have the boundary line between the terminal points of the present recognized boundary resurveyed and remarked, the Governor of this State is hereby authorized to appoint a competent surveyor, to join any such surveyor appointed on the part of Florida, to run out and mark distinctly such a line from one to the other terminal point herein indicated, to be known as the line and settled bound

[18]

[19]

ary between the two States, the surveyor on the | from Ellicott's mound; namely, within a quar-
part of Georgia to be paid such compensation ter of a mile-in fact, within 37 links, or less
as may be determined on by the present or any than 25 feet,-north of the mound. See Code of
future Legislature.
Georgia, 1868, § 19. This was more favorable
to Georgia than the line agreed on by Ellicott
and Minor, which was to run at least one mile
north of the mound.

"3. And be it further resolved, That the
Governor of this State shall, so soon as the
same shall have passed both branches of the
present General Assembly, transmit a certified
copy to the Governor of Florida.

Approved December 24, 1857."
This Resolution was responded to by the
Legislature of Florida on the 12th of January,
1859, by passing a resolution in precisely the
same terms, mutatis mutandis; and on the 15th
of the same month an Act was passed by the
Legislature of Florida for bringing into mar-
ket, as soon as the line should be settled, all
state lands bordering thereon, that had not
been disposed of, giving to the occupants, whose
right was not disputed, five months to purchase
the lands occupied by them at their appraised
valuation.

As one, or both, of the parties desired to
have a resurvey made between the terminal
points, the State of Georgia appointed George
F. Orr, and the State of Florida B. F. Whitner,
surveyors, to run and mark the line according
ly. They commenced their work in 1859, and
it is referred to in the subsequent Acts and
Resolutions.

On the 14th of December, 1860, the Legisla-
ture of Georgia, probably considering that its
last proposition was not fully accepted, passed
a resolution, directing the Governor to reopen
negotiations with the authorities of Florida in
regard to the boundary line, and to urge its ad-
justment so as to protect the rights of citizen-
ship and the titles of lands held under grants
from Georgia; and, if practicable, so as to re-
tain and keep the fractional lots sold by Georgia
within the jurisdiction of the State. In re-
sponse to this Resolution, the Legislature of
Florida, on the 8th of February, 1861, passed
the following Resolution, to wit: "Whereas,
[by] an Act approved by the Governor 22d De-
cember, 1859, it was by the General Assembly
enacted that the line then being run by B. F.
Whitner, Jr., on the part of Florida, [and] G.
J. Orr, on the part of Georgia, should be, and
was thereby, recognized and declared to be the
permanent boundary line between the States of
Georgia and Florida as soon as the same should
be permanently marked by said surveyors:
An Act was passed by the Legislature of Provided, the said line at its eastern terminus
Georgia on the 16th of December, 1859, refer- did not depart from or miss Ellicott's mound
ring to the fact that the joint surveyors were more than one fourth of a mile, or 20 chains;
running their first trial line, and agreeing to and whereas, the said line has been run and
adopt it as conclusive, if Florida would do the marked by said surveyors on the part of the
same; provided that, on the eastern terminus, two States, the eastern terminus of which, so
it did not depart exceeding one fourth of a mile run and marked, is within the distance pre-
from Ellicott's mound; but that if it was not ac- scribed in said proviso: Therefore, Resolved,
cepted by Florida, and if, therefore, a new line That the line run and marked by B. F. Whit-
would have to be run so as to get a straightner, Jr., on the part of Florida; and G. J. Orr,
line from the mouth of Flint River to Ellicott's on the part of Georgia, be, and the same is
mound, that then, the line thus designated and
marked by the surveyors should be the perma-
nent boundary between the two States. The
Act also proposed the passage of laws to quiet
the titles of bona fide holders of lands under
grants of either Georgia or the United States.
The response made by the Legislature or Flor-
ida to this proposition was the passage of an
Act on the 22d of December, 1859, substan-
tially adopting the proposition made by Georgia
declaring "That the line now being run by B.
F. Whitner, Jr., on the part of Florida, and G.
J. Orr, on the part of Georgia, be and the same
is hereby recognized and declared to be the
permanent boundary line between the two
States, so soon as the same shall be permanently
marked by said surveyors: Provided, that said
line, at its eastern terminus, does not depart
from, or miss, Ellicott's mound more than one
fourth of a mile or 20 chains; and declaring,
secondly, "that the titles of bona fide holders
of land under any grant from the State of
Georgia, which land may fall within this State
by the foregoing line, are hereby confirmed and
conveyed to said holders, so far as any right
may accrue to this State: Provided, nothing
herein shall apply to lands to which citizens of
this State may claim title south of what is
known as the McNeil line."

It turned out that the line run by Orr and Whitner ran even farther north than the McNeil line; but it came within the stipulated distance

hereby declared to be, the permanent boundary
line between the two States of Georgia and
Florida, and that the Governor be, and he is
hereby, requested to issue his proclamation that
the said line, so run and marked, has been and
is declared to be the permanent boundary line
between the two States: Provided, the State of
Georgia shall have on its part declared the said
line to be the boundary between that State
and Florida. Be it further resolved. That the
Governor be requested to forward a copy of
these resolutions to the Governor of Georgia,
with a request that similar steps be taken by
Georgia, so that the question of boundary may
be finally settled." Bush's Digest, 103; Mc-
Clelland's do. 952.

By a long and argumentative Resolution,
passed by the Legislature of Georgia on the 11th
of December, 1861, after stating the respective
positions taken by the two States, it was pro-
posed as follows: "The General Assembly, to
avoid further dispute, proposes to her sister
State, Florida, that what is denominated the
Watson line (which will leave in the limits of
this State the fractional lots of land heretofore
sold under an Act of her Legislature) shall be
adopted as the boundary line. The settlement
upon this basis will not interfere with the rights
of citizenship, as claimed by the citizens of
either State.' Florida made no answer to this
proposition.

Finally, by a Resolution passed on the 13th

[20]

[21]

[22]

of December, 1866, the Legislature of Georgia,
referring to the Act of 16th December, 1859,
and recognizing the fact that the Orr and Whit-
ner line, as run, did not depart exceeding one
fourth of a mile from Ellicott's mound, and
referring also to the action of the Florida Legis-
lature of February 8, 1861, adopted the Orr and
Whitner line as "the permanent boundary line
between the States of Georgia and Florida."
And this agreement, thus finally arrived at by
the two States, was recognized and confirmed
by an Act of Congress approved April 9, 1872,
entitled "An Act to Settle and Quiet the Title
to Lands Along the Line Between the States of
Georgia and Florida," by which it was declared
that the titles to all lands lying south of the
line dividing the States of Georgia and Florida,
known as the Orr and Whitner line, lately es-
tablished as the true boundary between said
States, and north of the line run by Georgia,
known as the Watson line, being all the lands
lying between said lines, be, and the same are
hereby, cfirmed, so far as the United States
has title thereto, in the present owners deriving
titles from the State of Georgia."

|porarily adopted by Georgia, and acquiesced
in by Florida.

Then what becomes of the titles granted by Georgia outside of that line, or south of it? She had no title there herself. Could she confer title by the mere exercise de facto of jurisdiction and government there such exercise being in derogation of the successive rights of Spain, the United States, and Florida? What authority can be found to justify such a pretension? It is the common usage, it is true, in mutual adjustments of disputed boundaries, to stipulate that private titles shall not be disturbed. Such stipulations are dictated by a humane consideration for those who have innocently invested their fortunes on the faith of the good title of their government. In the present case, as we have seen, the titles granted by Georgia were confirmed both by Florida and by the United States, so far as either had any right or title to be affected. But those confirmations cannot avail the plaintiffs in the present case; for the United States had parted with all their interest in the lands in controversy, by a grant to Florida in July, 1857: and Florida had disposed of all her interest therein by a regular sale in September of the same year. Neither the United States nor Florida, therefore, had any interest remaining, when the confirmatory Acts were passed, which they could transfer by release or confirmation, or in any other mode.

The case, then, stands upon the original validity of the Georgia grants; and the question may well be asked, how does landholder who obtains title from a sovereign that has none, stand in any better position than one who ob tains title from an individual that has none? Georgia had no title to the land. Previous and subsequent historical events abundantly show this. Her grants have nothing to rest on but her actual possession of the disputed territory and her exercise of government de facto therein. The question is, whether this is sufficient.

This historical review is sufficient, it seems
to us, to show that the agreement come to by
the two States was not in fact, and cannot be
construed as, a cession of territory on the part
of Georgia. It was simply the correction of
the boundary line. Georgia had inadvertently
extended her jurisdiction to a line run by her
surveyor too far south. The agreement recited
in the Resolution of December 24, 1857, "to
adopt the terminal points of the present recog-
nized line as the true terminal points of the
boundary line," carried out by a resurvey of
such line from one of its terminal points to a
point sufficiently near the other to satisfy both
parties, must be construed to be the carrying
out of an intent to settle and establish the true
line between the two States, and not an intent
to adopt a line different from the true one, with
a cession of the territory cut off by it. Two
lines had been contended for. Florida and the The general subject is not a new one in the
United States contended for the line established jurisprudence of this court. Before the Treaty
by the joint commission under the Treaty with of amity, and limits made with Spain in 1795,
Spain; Georgia, for a different line, having a that government had claimed and occupied, as
widely different terminus at its eastern ex- a part of West Florida, a large extent of
tremity. Each claimed that its line was the country on the east side of the Mississippi, to
true one. Georgia finally yielded the point, the north of north latitude 31°-including a
and accepted the commissioners' line. This a large portion of the present State of Missis-
was tantamount to an acknowledgment that it sippi. This claim was based on an extension
was the true line. We do not say that the re- of the Province of West Florida to the north-
sult would have been different if the parties ward by the Government of Great Britain prior
had adopted a compromise line-as, for ex- to the Revolutionary War.* It was abandoned
ample, the Watson line, which was proposed by the Treaty referred to, and the parallel of
by Georgia. When a boundary is in dispute 31° was adopted as the boundary line between
the adoption of a line by compromise may be the territories of the United States and those
considered as an agreement that the adopted of Spain. But prior to that Treaty the Span-
line is the true line, or that it shall be consid-ish authorities had made grants of land in the
ered as the true line. Where territories are co- territory referred to. This court invariabiy
terminous, they must have a common bound-held those grants, not confirmed by our gov-
ary. That boundary, whether ascertained by
astronomical observations, or discovery of old
monuments, or mutual agreement of the par-
ties, is to be regarded and treated as if it had
always been known as the true line. The pres
ent case, at all events, can only be regarded as
one in which the boundary line finally agreed
to was always the true line, even though, and
even when, a different line (Watson's) was tem-

ernment, to be invalid, on the ground that the
territory did not belong to Spain, though she
occupied it and claimed to own it. This point
is decided in Henderson v. Poindexter, 25 U. S.
12 Wheat. 530 [6:718]; followed by Hickey v.
Stewart, 44 U. S. 3 How. 750 [11:814]; Robin-
son v. Minor, 51 U. S. 10 How. 627 [13:568];

See 1 Bioren's Laws U. S., pp. 449-453; Pitkin's
Hist. U. S. vol. 2, pp. 434-6.

[23]

[24]

[34]

der the Act of August 5, 1861, 12 Stat. at L.
292, which was apportioned to the State of
Louisiana. The First Comptroller of the
Treasury had, at different times previous to the
commencement of this action, admitted and
certified that the sums claimed were due to the
State on account of the 5 per cent net proceeds
of sales of the public lands, and on account of
sales of swamp lands within the State purchased
by individuals; but had directed the amounts
to be credited to the State on account upon the
claim of the United States against her for the
unpaid portion of the direct tax mentioned,

It was also objected in the court of claims,
and the objection is renewed here, that that
court had no jurisdiction, under the Constitu-
tion and laws of the United States, to hear and
determine a cause in which the State is a party
in a suit against the United States. This ob-
jection, therefore, must first be examined; for,
if well taken, it will be unnecessary to consider
the other questions presented.

United States, to recover two demands, amount-
ing in the aggregate to the sum of $71,385.83.
The first of these demands arises upon the Act
of Congress of February 20, 1811. "To enable
the people of the Territory of Orleans to form
a Constitution and State Government," the fifth
section of which declared that 5 per cent of the
net proceeds of the sales of lands of the United
States, within her limits, after the first day of
January next ensuing, should be applied to lay-
ing out and constructing public roads and
levees in the State, as its Legislature might di-
rect. 2 Stat. at L. 641, chap. 21. Pursuant to
the authority thus conferred, the people of the
Territory of Orleans, represented in a conven-
tion called for that purpose, formed themselves
into a State, by the name of Louisiana, and
adopted a constitution under which the State
was admitted into the Union. The 5 per cent
of the net proceeds of sales of lands of the
United States, made between July 1, 1882, and
June 30, 1886, and due to the State by the United
States, as found by the Commissioner of the The Constitution declares that "The judicial
General Land-Office, amounted to $47,530.79. power of the United States shall be vested in
The second of these demands arises upon the one supreme court, and such inferior courts as
Act of Congress of September 28, 1850, "To Congress may from time to time ordain and es-
enable the State of Arkansas and other States tablish," and "that the judicial power shall ex-
to reclaim the swamp lands within their limits," tend to all cases in law and equity arising under
9 Stat, at L. 519, chap. 84, and the Act of March this Constitution, the laws of the United States,
2, 1855, "For the relief of purchasers and lo- and treaties made or which shall be made under
cators of swamp and overflowed lands." 10 their authority; to all cases affecting ambassa-
Stat. at L. 634, chap. 147. The Act of Sep-dors, other public ministers, and consuls; to all
tember 28, 1850, granted to the States then in
the Union all the swamp and overflowed lands,
made unfit thereby for cultivation, within their
limits, which at the time remained unsold.
The second section made it the duty of the Sec-
retary of the Interior, as soon as practicable
after the passage of the Act, to prepare a list of
the lands described and transmit the same to
the Governor of the State, and at his request to
cause a patent to be issued therefor. It would
seem that this duty was not discharged; and,
notwithstanding the grant was one in præsenti,
many of the lands falling within the designa-
tion of swamp and overflowed lands were sold
to other parties by the United States. The Act
of March 2, 1855, was designed to correct,
among other things, the wrong thus done to the
State; it provided that, upon due proof of such
sales, by the authorized agent of the State, be
fore the Commissioner of the General Land-
Office, the purchase money of the lands should
be paid over to the State. Such proof was not
made, but equivalent proof was submitted to
the commissioner as to the character of the
lands from the field notes of the Surveyor-Gen-
eral of the State. This mode of proof was ac-
cepted by the commissioner in other cases as
early as 1850. The amount found in this way
by the commissioner on the 30th of June, 1885,
to be due to the State from the United States,
on account of sales of swamp lands to individ-
uals, made prior to March 3, 1857, was
$23,855.04.

It does not appear that there was any serious contest in the court of claims, either as to the validity or the amount of these demands; but it was objected that the demand arising upon the Acts of September 28, 1850, and of March 2, 1855, was barred by the Statute of Limitations, and that both demands were set off by the unpaid balance of the direct tax levied un

cases of admiralty and maritime jurisdiction; to
controversies to which the United States shall
be a party; to controversies between two or more
States; between a State and citizens of another
State; between citizens of different States; be-
tween citizens of the same State claiming lands
under grants of different States; and between a
State or the citizens thereof and foreign States,
citizens, or subjects." This clause was modi-
fied by the 11th Amendment, declaring that
"the judicial power shall not be construed to
extend to any suit in law or equity, commenced
or prosecuted against one of the United States
by citizens of another State, or by citizens or
subjects of any foreign State."

As thus modified, the clause prescribes the
limits of the judicial power of the courts of the
United States. The action before us, being one
in which the United States have consented to
be sued, falls within those designated, to which
the judicial power extends; for, as already
stated, both of the demands in controversy arise
under laws of the United States. Congress has
brought it within the jurisdiction of the court
of claims by the express terms of the statute de-
fining the powers of that tribunal, unless the
fact that a State is the petitioner draws it with-
in the original jurisdiction of the supreme
court. The same article of the Constitution
which defines the extent of the judicial power
of the courts of the United States declares,
that "In all cases affecting ambassadors, other
public ministers, and consuls, and those in
which a State shall be a party, the supreme
court shall have original jurisdiction; in all the
other cases, the supreme court shall have ap-
pellate jurisdiction, both as to law and fact,
with such exceptions and under such regula-
tions as the Congress shall make.' Although
the original jurisdiction of the supreme court,
where a State is a party, as thus appears, is not

"

[35]

[36]