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Law School Case Brief

Foster v. Neilson - 27 U.S. 253 (1829)


In a controversy between two nations concerning a national boundary, it is scarcely possible that the courts of either should refuse to abide by the measures adopted by its 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; and its duty commonly is to decide upon individual rights, according to those principles which the political departments of the nation have established. If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous. It is the province of the court to conform its decisions to the will of the legislature, if that will has been clearly expressed.


Plaintiffs Foster and Elam sued defendant Neilson for title to a parcel of land in Louisiana, claiming that the Spanish governor had granted them that land. Neilson argued that the grant was null and void because it was made after Spain had transferred the land to France, who in turn, ceded it to the United States. The district court agreed with Neilson, and rejected plaintiffs' argument that relied on the treaty between Spain and the United States, which stipulated that all grants of lands made by Spain would be ratified by the United States. Plaintiffs sought appellate review from the United States Supreme Court.


Did the plaintiffs have valid title to the Louisiana land that they had acquired under a grant from the Spanish governor?




The court affirmed the judgment of the district court,concluding that petitioners' title was void, Spain having ceded its right in the land at the signing of the treaty between Spain and France, and that the title now fully belonged to respondent, the titleholder in possession. The Supreme Court held that this treatty, which was not self-executing, could not be considered binding law until such time as the legislature actually acts to ratify and confirm the title in the land.

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