by John Marshall Harlan

“ And to what tribunal could a trust so momentoun be more appropriately committed than to that which the people of the United States, in order to form a more perfect Union, extablish justice, and insure domestic tranquillity, have constituted with authority to speak for all the people and all the states upon questions before it to which the judicial power of the nation extends? ”

“ Ildefonso, Chief Justice MARSHALL, speaking for the court, said: 'In a controversy between two nations concerning national boundary, it is scarcely possible that the courts of either should refuse to abide by the measures adopted by their own government. There being no common tribunal to decide between them, each determines for itself on its own rights, and if they cannot adjust their differences peaceably the right remains with the strongest. The judiciary is not that department of the government to which the assertion of its interests against foreign powers is confided ”

“ That a circuit court of the United States has not jurisdiction, under existing statutes, of a suit by the United States against a state, is clear; for by the Revised Statutes it is declared-as was done by the judiciary act of 1789-that 'the supreme court shall have exclusive jurisdiction of all controversies of a civil nature where a state is a party, except between a state and its citizens, or between a state and citizens of other states, of aliens, in which latter cases it shall have original, but not exclusive, jurisdiction.' Rev. ”

“ The United States claims to have jurisdiction over all the territory acquired by the treaty of 1819, containing 1,511,576.17 acres, between what has been designated as the 'Prairie Dog Town Fork, or Main Red River,' and the North Fork of Red river, being the extreme portion of the Indian Territory lying west of the North Fork of the Red river, and east of the one-hundredth meridian of west longitude from Greenwich, and that its right to said territory, so far from having been relinquished, has been continuously asserted from the ratification of the treaty of 1819 to the present time. ”

“ The state of New York might, I thing, file a bill against the state of Connecticut, praying to be quieted as to the boundaries of the disputed territory; and this court, in order to effectuate justice, might appoint commissioners to ascertain and report those boundaries.' But the question arose directly in Rhode Island v. Massachusetts, 12 Pet. 657, 734, which was a suit in equity in this court involving the boundary line between two states. The court said: 'No court acts differently in deciding on boundary between states than on lines between separate tracts of land. ”

“ If those departments which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty ”

“ If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous.' Again: 'After these acts of sovereign power over the territory in dispute, asserting the American construction of the treaty by which the government claims it, to maintain the opposite construction in its own courts would certainly be an anomaly in the history and practice of nations. ”

“ At the date of the ratification of this treaty the country now constitating Texas belonged to Mexico, part of the monarchy of Spain. Subsequently, in 1824, Mexico became a separate, independent power, whereby the boundary line designated in the treaty of 1819 became the line between the United States and Mexico. ”

“ Each of the contracting parties shall appoint a commissioner and surveyor, who shall meet, before the termination of twelve months from the exchange of the ratification of this convention, at New Orleans, and proceed to run and mark that portion of the said boundary which extends from the mouth of the Sabine, where that river enters the Gulf of Mexico, to the Red river. ”

“ They shall make out plans and keep journals of their proceedings, and the result agreed upon by them shall be considered as part of this convention, and shall have the same force as if it were inserted therein. * * *
'Art. 2. ”

“ In support of the contention that the ascertainment of the boundary between a territory of the United States and one of the states of the Union is political in its nature and character, and not susceptible of judicial determination, the defendant cites Foster v. ”