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January term, 1829.

Philip Hickie, et al. vs. Alexander B. Starkie, et al.

This case came on for argument upon appeal on the equity side of the court from the supreme court of the county of Adams, in the state of Mississippi.

The object of the bill in the state court was to obtain a conveyance of a tract of land for which the accession of the appellees in 1791 had obtained an order of survey from the governor general of Louisiana, and had taken possession of and cultivated for some time. Thi tract he afterwa proposed to the governor general to exchange for another tract, but the bill alleged that the Spanish governor unjustly granted in 1794, part of the tract held by him, to the ancestor of the appellants, who entered upon it, and cultivated the same.

agreement and cession" between the U. S. and the state of Georgia, and that by the decree of the supreme court in this cause, that title has been overruled.

The following questions then arose : 1st, Whether the construction and effect of these articles were presented for the consideration of the court below, so that the title claimed under them was brought into question? 2d, Whether the appellant's title being a full and complete Spanish grant was confirmed by the articles of agreement and cession, and was in itself a valid and indefeasible grant of the land.

These questions were argued by Mr. Edward Livingston for the appellants, and Mr. McDuffie and Mr. Cox for the appellees.

Mr. Chief Justice Marshall delivered the opinion of the court.

This is a writ of error, to a decree pronounced in the court of the last resort, in the state of Mississippi, directing the plaintiffs in error, to convey to the defendants a certain tract of land, in the said proceedings mentioned. The plaintiffs in error allege, that their title was secured by the compact entered into between the United States and Georgia, for the cession of the country in which the land lies; and this decree is in violation of that compact. The defendants insist, that the compact between the United States and Georgia, was not called into question; and that the 25th section of the judicial act, does not give this court jurisdiction of the case.

The forms of the Spanish laws requisite to obtain a title had been conformed to by the ancestor of the appellants, but had been neglected by the ancestor of the appellees. The appellees however claimed in their bill to have the land conveyed to them, inasmuch as they alleged the title of the ancestor of the appellants to have been acquired by collusion with the Spanish governor, who had forcibly dispossessed their ancestor. A feigned issue was directed, and the jury decided in favour of the appellees, whereupon a decree was entered in their favour by the supreme court.

The appellants then filed their petition for a writ of error to this court, suggesting that the title of their ancestor arose under "the articles of

In the construction of that section, the court has never required that the treaty, or act of congress, under which the party claims, who brings the final judgment of a state court into review before this court, should have been pleaded specially, or spread on the record. But it has always been deemed essential to the exercise of jurisdiction in such a case, that the record should show a complete title under the treaty or act of congress, and that the judgment of the court is in violation of that treaty or act. The condition in the cession act, on which the plaintiffs in error rely, is in these words: "That all persons, who, on the 27th day of October 1795, were actually settlers within the territory thus ceded, shall be confirmed in all the grants, legally and fully executed prior to that day, by the former British government of West Florida,or by the government of Spain."

The plaintiff's produce a grant, legally and fully executed; but to bring the case under the treaty, they must also prove, that the ancestor or person under whom they claim, was actual settler, on the 27th October, 1795. The answer asserts, that the warrant of survey issued on the 7th day of February, 1793, and the survey made on the 20th July, in the same year, when possession was taken; and that the patent issued on the 3d April, 1794. James Williams deposes, that about the 3d December, 1795, he took possession of the tract of land in dispute, as overscer for James Mather the pa

tentee, and understood from him, that he had gone to Natchez some time before, to apply for land in the part of the country where the tract in controversy lies. This is the testimony furnished by the record, to prove that James Mather, the grantee, was an actual settler, according to the requisition of the cession act of Georgia. In Henderson vs. Poindexter, 12 Wheat. 530, the term "actual settler," seems to have been understood as synonymous with the resident of the country. That case, however, did not require that the precise meaning of the term should be fixed, and the court is disposed to think, that a settlement made on the land by another person, who cultivated it for the proprietor would be sufficient; though the proprietor should not reside in person on the estate, or within the territory. Had the settlement proved by Williams, been made at the day required by the cession act, it would, we think, have satisfied the requisition of that act, and entitled the plaintiffs in error to the benefit of the condition. But it was not made until the 3d of December, 1795. We think then, that the plaintiffs in error have failed to prove, that the person under whom they claim, was an actual settler on the 27th day of October, 1795; and that the court has no jurisdiction of the cause.

These cases were brought before the court, upon appeal from the circuit court of the United States, for the district of Georgia. They arose out of the following circumstances: Juan Madrazo, a Spaniard, domiciliated at Havana, sent in 1817, the schooner Isabelita, belonging to him, on a slave voyage to the coast of Africa.

On her return with a cargo of slaves.

The writ of error dismissed, it not appearing that this court has jurisdiction of the cause.

Sundry African slaves-The Governor of Georgia claimant appellant, vs. Juan Madrazo-The Governor of Georgia appellant, vs. sundry African slaves.→→

she was captured by the Successor, a piratical cruiser, under the flag of Com. Aury-the said cruiser having been fitted out in the port of Baltimore, and manned and equipped in our waters. The prize and slaves were carried to Amelia Island, and there condemned by a pretended court of admiralty, instituted by Aury, and sold under its authority to William Bowen, who

brought the negroes into the territory of the Creek nation, within the limits of Georgia, where they were seized by a custom house officer, and delivered to an agent of the state government, pursuant to an act of the state legislature, passed December 1817, in conformity with the act of congress, 1807, prohibiting the importation of slaves into the United States.

The act of congress annulled the title of the importer to such negro, or person of colour imported, and declared that such person of colour should "remain subject to any regulation not contravening the provisions of this act, which the legislatures of the several states or territories at any time here. after may make, for disposing of such negro, mulatto, or person of colour."

In pursuance of this act, the legis. lature of Georgia, in 1817, passed an act empowering the governor to appoint an agent to collect and receive all negroes or persons of colour which had been or might be condemned within the state, under the act of congress, and to convey them to Milledgeville, and place them under the immediate control of the governor. The 2d section authorized the governor to sell them in such manner as he may think most advantageous to the state. The 3d section directed that they might be delivered to the colonization society, on certain specified conditions, if applied for before the sale.

Under this act, part of these negroes were sold by the gov. of Georgia, and the proceeds, amounting to $38,000, paid into the state treasury. The colonization society applied for those remaining unsold, amounting to more than twenty. In May, 1820, the governor of Georgia filed an information in the district court of Georgia, stating the violation of the act of congress, and that the negroes were in his possession-that the colonization society had applied for them, and that he was desirous of complying with their application, as soon as he should be authorized to do so by the decree of the


In November, 1820, William Bowen

filed his claim to the negroes, as his property, and denied that they had been imported in violation of the act of congress, but were seized in passing through the Creek nation, on their way to Florida. In February, 1821, Juan Madrazo filed his libel, alleging them to be his property, and that they were captured by the privateer Successor, fitted out in an American port, and commanded by an American-that they were condemned by an unauthorized tribunal-and also stating the material facts relative to their seizure, the sale of a portion, and the detention of the residue by the governor. The libel then denied that the laws of the United States had been violated, and prayed that admiralty process might issue to take possession of the slaves still unsold, and that the governor might be cited to show cause why the said negroes should not be restored to him, and the proceeds of those sold paid over to him.

A monition was thereupon issued to the governor of Georgia, who appeared and filed a claim in behalf of the state, in which he stated the facts above mentioned, and that the proceeds of the slaves sold had been paid into the state treasury, and were no longer under his control; and that the resi due of the slaves had been demanded by the colonization society.

Process was also issued against the Africans, but was not executed.

When the causes were argued the district court dismissed the claim of Bowen, and the libel of Madrazo, and directed the slaves unsold to be delivered to the governor of Georgia, and the proceeds to remain in the state treasury.

Upon appeal to the circuit court, the decree dismissing the claim of Bowen was affirmed; but that dismissing the libel of Madrazo was reversed, and the slaves remaining unsold, and the proceeds of those sold, were decreed to be delivered to him.

From this decree both the governor of Georgia and William Bowen appealed. In the circuit court a motion was made in behalf of Madrazo, for

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form, a suit against the state of Geor gia; and therefore was not cognizable in the district court of the United States.

The process which issued from the court of admiralty, not having been executed, the res was never in possession of that court. The libel of Madrazo, therefore, was not a proceeding against the thing, but a proceeding against the person for the thing. This appeal carried the cause into the circuit court, as it existed in the district court, when the decree was pronounced. It was a libel, demanding, personally, from the governor of Georgia, the Africans remaining unsold, and the proceeds of those that were sold, which proceeds had been paid into the treasury.

Pending this appeal, the governor filed a paper in the nature of a stipuiation, consenting to hold the Africans claimed by the libel of Madrazo, subject to the decree of the circuit court, if it should be determined that the claim in the circuit court, had priority to sundry executions, levied on them by the sheriff of Baldwin county. Had this paper been filed in the district court, it would have been a substitute for the Africans themselves, and would, according to the course of the admiralty, have enabled that court to proceed in like manner as if its process had been served upon them. The libel would then have been in rem. Could this paper, when filed in the circuit court, produce the same effect on the cause?

We think it could not.

The paper in nature of a stipulation, is a mere substitute for the process of the court; and cannot, we think, be resorted to, where the process itself could not be issued according to law. The process could not issue legally in this case, because it would be the exercise of original jurisdiction in admiralty, which the circuit court does not possess.

This cause therefore remained in its character a libel against the person of the governor of Georgia, for the Africans in his possession, as governor,

and for the proceeds, in the treasury, of those which had been sold. Could the district court exercise jurisdiction in such a cause?

Previous to the adoption of the 11th amendment to the constitution, it was determined that the judicial power of the United States extended to a case in which a state was a party defendant. This principle was settled in the case of Chisholm vs. Georgia. 2 Dal. 419. In that case, the state appears to have been nominally a party on the record. In the case of Hollingsworth as. Virginia; also, in 3 Dal. 378, the state was nominally a party on the record. In the case of Georgia vs. Brailsford, 2 Dal. 402, the bill was filed by his excellency Edward Telfair, esq., governor and commander-inchief, in and over the state of Georgia, in behalf of the said state. No objection was made to the jurisdiction of the court, and the case was considered as one in which the supreme court had original jurisdiction, because a state was a party. In the case of New York vs. Connecticut, 4 Dal. 3, both the states were nominally parties on the record. No question was raised in any of the cases respecting the style in which a state should sue or be sued; and the presumption is, that the actions were admitted to be properly brought. In the case of Georgia vs. Brailsford, the action is not in the name of the state, but it is brought by its chief magistrate in behalf of the state. The bill itself avows, that the state is the actor, by its governor.

There is, however, no case in which a state has been sued without making it nominally a defendant.

Fowler et al. vs. Lindsey et al. 3 Dal. 411, was a case in which an attempt was made to restrain proceedings in a cause depending in a circuit court, on the allegation that a controversy respecting soil and jurisdiction of two states, had occurred in it.

The court determined, that a state, not being a party on the record, nor directly interested, the circuit court ought to proceed in it. In the United States vs. Peters, the court laid down

the principle, that although the claims of a state may be ultimately affected by the decision of a cause, yet if the state be not necessarily a defendant, the courts of the United States are bound to exercise jurisdiction.

In the case of Osbourne vs. the Bank of the United States, 9 Wheat. 738, this question was brought more directly before the court. It was argued, with equal zeal and talent, and decided on great deliberation. In that case the auditor and treasurer of the state were defendants, and the title of the state itself to the subject in contest was asserted. In that case the court said, "It may, we think, be laid down as a rule which admits of no exception, that in all cases where jurisdiction depends on the party, it is the party named in the record." The court added, "the state, not being a party on the record, and the court having jurisdiction over those who are parties on the record, the true question is not one of jurisdiction, but whether, in the exercise of its jurisdiction, the court ought to make a decree against the defendants; whether they are to be considered as having a real interest, or as being only nominal parties."

The information of the governor of Georgia professes to be filed on behalf of the state, and is, in the language of the bill, filed by the governor of Georgia on behalf of the state, against Brailsford.

If, therefore, the state was properly considered as a party in that case, it may be considered as a party in this.

The libel of Madrazo alleges that the slaves which he claims, “were delivered over to the government of the state of Georgia, pursuant to an act of the general assembly of the said state, carrying into effect an act of congress of the United States, in that case made and provided; a part of the said slaves sold, as permitted by said act of congress, and as directed by an act of the general assembly of the said state; and the proceeds paid into the treasury of the said state, amounting to thirtyeight thousand dollars, or more."

The governor appears, and files a

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