Shepley, C. J.
The lands demanded are admitted to have been included within the bounds of a township of land conveyed by the Commonwealth of Massachusetts, by its agents, John Reed and Peleg Coffin, to the trustees of Williams College, on February 2, 1802. It is also admitted, that the demandant by virtue of the conveyance made to him on Aug. 23, 1832, by Daniel N. Dewey, as the agent of the trustees, acquired all the title which could be conveyed by them, if they had made no prior conveyance.
The objection to the title derived from the trustees is, that the conveyance to them was made upon condition, that they should cause fifteen families to be settled upon the township within twelve years, which was not performed. The condition was to be performed subsequently ; and in such case the title would continue to be valid, until the State should by some legislative Act make known its pleasure, that it should [220]*220become forfeited. This it did not do; but by a resolve it extended the time for performance of the condition, which was performed within the further time allowed. But it is said, that Massachusetts could not legally extend the time, after this State was separated from that, without the assent of this State. This objection is without foundation. The Act of Massachusetts providing for the separation of this State declares, that “ all rights of action for, or entry into lands, and of action upon bonds for the breach of the performance of the conditions of settling duties, so called, which have accrued or may accrue, shall remain in this Commonwealth to be enforced, commuted, released or otherwise disposed of in such manner, as this Commonwealth may hereafter determine.” This Act was assented to by the State of Maine, and made a part of her constitution ; and it fully authorized Massachusetts to extend the time allowed for the performance of the condition contained in the deed of conveyance to the trustees of the college.
The demandant, it is said, is estopped or precluded from asserting any title to the premises demanded by his petition, presented to the Legislature of Massachusetts, and by the reception of the compensation granted to him by that State for the loss of lands conveyed to the trustees of Williams college.
That petition, presented in the year 1845, represented that the title to sixteen hundred acres proved to be invalid, because the bounds of the township were extended into the Province of New Brunswick ; and it prayed for compensation therefor, which was made, not for the loss of lands ascertained by the treaty of Washington to be within this State, but for the loss of those ascertained to be within the province of New Brunswick.
The lands demanded are within this State ; and they were legally conveyed by Massachusetts to the trustees of Williams college, and by their agent to the demandant, who will be entitled to recover them, unless his title was destroyed by the provisions of the treaty of Washington, bearing date on August 9, 1842.
[221]*221The title of the tenant is derived from a grant of the lands demanded, made on August 12, 1841, by the province of New Brunswick to George Watson ; and from a conveyance thereof made by George Watson and wife to himself on August 6, 1842. It is admitted, that the tenant has been in the undisturbed occupancy of the premises, for ten years before the commencement of the action on December 3, 1846, and that he has erected buildings upon and cultivated a part of the lands. He was thus in possession of the premises, when the treaty of Washington was made, claiming title under a grant from the province of New Brunswick, of lands actually within the limits of the United States, and already conveyed by the Commonwealth of Massachusetts.
The fourth article of the treaty of Washington contains this clause, “ All grants of land heretofore made by either party within the limits of the territory, which by this treaty, falls within the dominions of the other party, shall be held valid, ratified and confirmed to the persons in possession under such grants to the same extent, as if such territory had by this treaty, fallen within the dominions of the party, by whom such grants were made.”
Upon a literal construction of the language of the treaty, the tenant presents a title within its provisions and protected by them. The literal is the correct construction of such an instrument, when the language is clear, precise, not inconsistent with other provisions, and not leading to absurd conclusions. Vattel, lib. II, c. 17. And in such case no extraneous means for an interpretation of the treaty should be sought.
The argument for a different construction is in substance, that the line established by the treaty of peace of 1783 extended due north from the monument erected at the source of the river St. Croix ; that by the line so established the premises were within the United States; that the treaty of Washington only confirmed that line, and that the premises did not therefore fall within the dominions of the United States by the treaty of Washington.
[222]*222Although the preamble of a treaty does not form a part of the contract, yet being duly authenticated by the signatures of the contracting parties, its averments are to be regarded as truths admitted. When the language used in a treaty clearly declares a fact, or grants, defines, or confirms a right, it must be effectual, even if found to be inconsistent with the purpose disclosed by the correspondence, which preceded it.
The preamble to the treaty of Washington recites, that “ certain portions of the line of boundary between the United States of America and the British Dominions in North America described in the second article of the treaty of peace of 1783, have not yet been ascertained and determined, notwithstanding the repeated attempts, which have been heretofore made for that purpose; and whereas it is now thought to be for the interest of both parties, that avoiding further discussion of their respective rights arising in this respect, under the said treaty, they should agree on a conventional line in said portions of the said boundary, such as may be convenient to both parties with such equivalents and compensations, as are deemed just and reasonable.” Here is a distinct declaration, that the parties intended to agree on a conventional line, without regard to certain portions of the line established by the treaty or 1783 ; and an admission, that in those parts of the line, it had not been ascertained and determined. The admission of this uncertainty, was co-extensive with the conventional line agreed on. The first article then proceeds to establish a line beginning at the monument, and “thence north following the exploring line, run and marked by the surveyors of the two governments in the years 1817 and 1818, under the fifil article of the treaty of Ghent, to its intersection with the river St. John.” This must, therefore, be regarded as a part of the conventional line; and although it does not run from the monument north, yet it must follow the exploring line, whether it should or should not be found to run on a course due north. If, as the preamble to the treaty admits, the line between the two countries from the monument to the river St. John had not been ascertained and [223]*223determined, the premises did fall within the United States by the line established by the treaty of Washington, and not by any former line agreed upon between the parties.
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Shepley, C. J.
The lands demanded are admitted to have been included within the bounds of a township of land conveyed by the Commonwealth of Massachusetts, by its agents, John Reed and Peleg Coffin, to the trustees of Williams College, on February 2, 1802. It is also admitted, that the demandant by virtue of the conveyance made to him on Aug. 23, 1832, by Daniel N. Dewey, as the agent of the trustees, acquired all the title which could be conveyed by them, if they had made no prior conveyance.
The objection to the title derived from the trustees is, that the conveyance to them was made upon condition, that they should cause fifteen families to be settled upon the township within twelve years, which was not performed. The condition was to be performed subsequently ; and in such case the title would continue to be valid, until the State should by some legislative Act make known its pleasure, that it should [220]*220become forfeited. This it did not do; but by a resolve it extended the time for performance of the condition, which was performed within the further time allowed. But it is said, that Massachusetts could not legally extend the time, after this State was separated from that, without the assent of this State. This objection is without foundation. The Act of Massachusetts providing for the separation of this State declares, that “ all rights of action for, or entry into lands, and of action upon bonds for the breach of the performance of the conditions of settling duties, so called, which have accrued or may accrue, shall remain in this Commonwealth to be enforced, commuted, released or otherwise disposed of in such manner, as this Commonwealth may hereafter determine.” This Act was assented to by the State of Maine, and made a part of her constitution ; and it fully authorized Massachusetts to extend the time allowed for the performance of the condition contained in the deed of conveyance to the trustees of the college.
The demandant, it is said, is estopped or precluded from asserting any title to the premises demanded by his petition, presented to the Legislature of Massachusetts, and by the reception of the compensation granted to him by that State for the loss of lands conveyed to the trustees of Williams college.
That petition, presented in the year 1845, represented that the title to sixteen hundred acres proved to be invalid, because the bounds of the township were extended into the Province of New Brunswick ; and it prayed for compensation therefor, which was made, not for the loss of lands ascertained by the treaty of Washington to be within this State, but for the loss of those ascertained to be within the province of New Brunswick.
The lands demanded are within this State ; and they were legally conveyed by Massachusetts to the trustees of Williams college, and by their agent to the demandant, who will be entitled to recover them, unless his title was destroyed by the provisions of the treaty of Washington, bearing date on August 9, 1842.
[221]*221The title of the tenant is derived from a grant of the lands demanded, made on August 12, 1841, by the province of New Brunswick to George Watson ; and from a conveyance thereof made by George Watson and wife to himself on August 6, 1842. It is admitted, that the tenant has been in the undisturbed occupancy of the premises, for ten years before the commencement of the action on December 3, 1846, and that he has erected buildings upon and cultivated a part of the lands. He was thus in possession of the premises, when the treaty of Washington was made, claiming title under a grant from the province of New Brunswick, of lands actually within the limits of the United States, and already conveyed by the Commonwealth of Massachusetts.
The fourth article of the treaty of Washington contains this clause, “ All grants of land heretofore made by either party within the limits of the territory, which by this treaty, falls within the dominions of the other party, shall be held valid, ratified and confirmed to the persons in possession under such grants to the same extent, as if such territory had by this treaty, fallen within the dominions of the party, by whom such grants were made.”
Upon a literal construction of the language of the treaty, the tenant presents a title within its provisions and protected by them. The literal is the correct construction of such an instrument, when the language is clear, precise, not inconsistent with other provisions, and not leading to absurd conclusions. Vattel, lib. II, c. 17. And in such case no extraneous means for an interpretation of the treaty should be sought.
The argument for a different construction is in substance, that the line established by the treaty of peace of 1783 extended due north from the monument erected at the source of the river St. Croix ; that by the line so established the premises were within the United States; that the treaty of Washington only confirmed that line, and that the premises did not therefore fall within the dominions of the United States by the treaty of Washington.
[222]*222Although the preamble of a treaty does not form a part of the contract, yet being duly authenticated by the signatures of the contracting parties, its averments are to be regarded as truths admitted. When the language used in a treaty clearly declares a fact, or grants, defines, or confirms a right, it must be effectual, even if found to be inconsistent with the purpose disclosed by the correspondence, which preceded it.
The preamble to the treaty of Washington recites, that “ certain portions of the line of boundary between the United States of America and the British Dominions in North America described in the second article of the treaty of peace of 1783, have not yet been ascertained and determined, notwithstanding the repeated attempts, which have been heretofore made for that purpose; and whereas it is now thought to be for the interest of both parties, that avoiding further discussion of their respective rights arising in this respect, under the said treaty, they should agree on a conventional line in said portions of the said boundary, such as may be convenient to both parties with such equivalents and compensations, as are deemed just and reasonable.” Here is a distinct declaration, that the parties intended to agree on a conventional line, without regard to certain portions of the line established by the treaty or 1783 ; and an admission, that in those parts of the line, it had not been ascertained and determined. The admission of this uncertainty, was co-extensive with the conventional line agreed on. The first article then proceeds to establish a line beginning at the monument, and “thence north following the exploring line, run and marked by the surveyors of the two governments in the years 1817 and 1818, under the fifil article of the treaty of Ghent, to its intersection with the river St. John.” This must, therefore, be regarded as a part of the conventional line; and although it does not run from the monument north, yet it must follow the exploring line, whether it should or should not be found to run on a course due north. If, as the preamble to the treaty admits, the line between the two countries from the monument to the river St. John had not been ascertained and [223]*223determined, the premises did fall within the United States by the line established by the treaty of Washington, and not by any former line agreed upon between the parties.
It is further insisted, that the intention was not, and that the construction should not be such, as to confirm grants of land made in the vicinity of this portion of the line, but those only, which had been made north of Mars Hill and near the Madawaska settlement. The correspondence, which preceded the treaty, is referred to as conclusive proof, that the clause in the fourth article of the treaty, and indeed the whole article, was introduced for that purpose alone.
Admitting the occasion of its introduction to be correctly stated, yet when language was used equally applicable to those and to other grants, the argument cannot be sound, which would introduce a limitation of such general language to grants of a particular class not named in the treaty to the exclusion of others equally embraced by the language used. It is more reasonable to conclude, that the negotiators perceiving the necessity of such provisions, to confirm one class of grants, concluded to make the provisions general, that it might include grants made upon other portions of the line, if such should be found, instead of restricting them to a class of grants especially calling for those provisions. There would, in such case, be nothing inconsistent with each other in the correspondence and treaty stipulations. A judicial tribunal would not be authorized to limit the plain and unrestricted language of a treaty to the accomplishment only of the particular purposes, which induced the parties to introduce each article. The intention is to be ascertained railer from the ambiguous language finally agreed upon, than from the anterior correspondence.
It is further insisted, that the treaty does not operate upon the title or grant proprio vigore, but only as a contract requiring legislative interposition, to carry it into effect.
A treaty is usually a contract between the parties. It may, however, be so framed as to accomplish its purposes without any further act, if the language used be suitable, and the purpose be such as may be thus accomplished. In the United, [224]*224States a treaty is to be regarded as the supreme law and operative as such, when the stipulations do not import a contract to be performed. It is true, that the language used in the treaty between the United States and Spain, made on Feb’y 22, 1819, was not regarded in the case of Foster v. Nielson, 2 Peters, 314, as operative per se, to confirm the grants alluded to; but when the language used in the Spanish duplicate came' before the court in the case of the United States v. Pencheman, 7 Peters, 51, 88, it was decided to be operative upon the grants without any legislative interposition. The provision of the treaty as presented in the former case, declared, that grants made before a certain period “shall be ratified and confirmed”, and as presented in the latter case, “ shall remain ratified and cofirmed.” There is an essential difference between the language, upon which the court acted in the case of Foster and Neilson, and that used in the treaty of Washington, which provides, that grants of land “shall be held valid, ratified and confirmed”, which does not contemplate any future act as necessary to the validity, ratification, or confirmation, of the grant. They are held, to be so by those, whose duty it may be to act upon them. .The language addresses even more appropriately the judicial than the legislative department. It is the duty of this court to consider, that treaty to be a law operating upon the grant made under the authority of the British government, and declaring, that it shall be held valid, ratified and confirmed.
It is further insisted, that it cannot be permitted so to operate and thereby defeat the title of the demandant to the land without a violation of that provision of the constitution of the United States, which declares, that private property shall not be taken for public use without just compensation. It is not in the argument denied, that public or private property may be sacrificed by treaty ; but it is said that such a provision of a treaty as would take private property without compensation, must remain inoperative or suspended, until compensation has been made.
Such a construction would infringe upon the treaty-making [225]*225power, and make its acts depend for their validity upon the will of the legislative department, while the constitution provides, that treaties shall be the supreme law.
The clause of the constitution referred to, is a restriction imposed upon the legislative department, in its exercise of the right of eminent domain. It must of necessity, have reference to that department, which has the power to make compensation, and not to the treaty-making power, which cannot do it. This provision of the constitution will not prevent the operation of the treaty upon the grant of the tenant. Ware v. Hilton, 3 Dallas, 236; United States v. Schooner Peggy, 1 Cranch, 110. The demandant must seek compensation for the loss of his land, from the justice of his country.
Demandant nonsuit.