Ohio History Journal

Boundary Line Between Ohio and Virginia.     67

 

 

ARGUMENT CONCERNING BOUNDARY LINE

BETWEEN OHIO AND VIRGINIA.

 

BY SAMUEL F. VINTON.

 

May it please your honors, I cannot but regret that my

learned friend (the Hon. John M. Patton), who opened this case

for the Commonwealth of Virginia, has somewhat impaired the

value of so good an argument, by the introduction into it, both

at its commencement and conclusion, of a topic so very foreign

to the subject now under consideration. To all else in his argu-

ment I listened with that pleasure and delight which high intel-

lectual effort never fails to inspire. It will be understood that

I refer to what was said by him on the subject of slavery, and of

the correspondence now going on, and not yet brought to a close,

between the executives of the two States, making mutual demands

of certain persons as fugitives from justice. These are matters

not before the court, and their connection with the case now

before us is not very apparent.

If the argument of my learned friend had been an address to

a popular assembly, or even before a jury of the country, I should

have been at no loss to understand the object in bringing these

topics into it. But when they are addressed to this grave and

dignified tribunal of judges, sitting here to decide a naked ques-

tion of law, I am unable to perceive their relevancy, or in what

way they can aid the court in coming to a right decision of the

case. Much has been said, and eloquently, by the learned counsel

in praise of the institution of slavery, and in derogation of the

abolitionists. I did not come here, may it please your honors, to

engage in those questions that are at issue between the slave-

holders and the abolitionists. I am not now called upon to assail

the one or defend the other. The case before us has nothing to

do with either, and I cannot permit myself to be drawn aside, or

seduced into a discussion of this sort by anything that has been

or can be said on that subject. I have the same remark to make

about the correspondence between the executive of Virginia and

of Ohio. The governor of Ohio has seen fit to send me here to

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argue the case now before the court, and to protect, as well as I

may, those rights of sovereignty and of soil that are brought in

question in it.  But he has not solicited my aid in his corre-

spondence with Virginia. If he be right, he needs no defense

from me. If he be wrong, he best knows how to defend himself.

And whether he be right or wrong, I have no authority to speak

for him here before this tribunal about a matter which it is not

called upon to decide, and over which it has no jurisdiction or

control. I shall also pass over in the same way all that was so

eloquently said about the comparative power and prowess of the

people of Virginia and Ohio. I would fain trust in God the day

may never come when we, or our posterity, shall decide on the

battlefield whether Virginia be able to dictate law to Ohio or Ohio

to Virginia. All such speculation is worse than profitless, and

can establish nothing. If the signs of the times do not greatly

deceive us, the day is not far distant when the people of both

may be called upon to stand side by side in the presence of the

common enemy of the country, when ample scope will be given

to each for the exhibition of their valor and prowess on fitter

fields than those of civil strife. If this call be made, the estab-

lished valor of Virginia, the deeds she has done, all her history

assures us what she will do for her country. It will then be seen

whether Ohio will do her duty also. Firm as is my faith that

she will not be found wanting in the hour of trial, I shall never-

theless promise nothing for her, much less will I, here in this

place, offend against good taste by vaunting anything in her

behalf.

I will now proceed to the argument of the case before the

court. The indictment contains three charges, or counts,

founded upon different sections of the criminal code of Virginia,

each section creating a distinct offense. But the facts found by

the jury in their special verdict rendered on the trial of the case,

show that the proof is applicable to one of the charges only. I

shall, therefore, confine my remarks to it alone. That count

alleges that the defendants, Garner, Thomas, and Loraine, did

feloniously carry and cause to be carried out of the Common-

wealth of Virginia into the State of Ohio six negro slaves, with-

out the consent of John H. Harwood, their owner, with intent to

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Boundary Line Between Ohio and Virginia.        69

 

defraud him of the use, enjoyment, property and possession of

said slaves, contrary to the statutes of Virginia in such case made

and provided. The verdict, in the first place, finds the exist-

ence of certain laws relating to the title to, and jurisdiction over

the place where the act in question was done, which will be

noticed in the course of my argument. The verdict, in the next

place, finds that the defendants were at the time when this act

was committed, citizens of Ohio, residing in that State, about

four miles back from the Ohio River; that on the night when the

act was committed, the defendants, with some other persons,

came from their residence to the river on the Ohio side, and

going down under the bank, remained there for some time, when

six negro slaves, the property of said Harwood, came across the

river from the Virginia side, in a canoe, and landed it obliquely

against the Ohio shore, running the bow upon the beach; that

the defendants, and those in company with them, went down to

the canoe as it struck the shore, and without entering it, stepped

into the water at the bow, and assisted in taking from it some

bags and articles of clothing which lay in that part of the canoe;

that the defendants, and their companions, taking up these

articles, were proceeding up the bank of the river, in company

with the slaves, when certain persons, who lay in ambush on the

top of the bank of the Ohio side, rushed down upon them, and,

seizing the defendants, carried them forcibly across the Ohio

into Virginia, where they were held in custody, indicted, and

tried for the offense above specified.

The verdict further finds that the slaves on that night left

their master in Virginia, without his knowledge or consent. The

jury also found that when the Ohio River is at that stage which

the boatmen on it call low water, the depth of water on the bars

in the channel is from seventeen to twenty inches; that at ex-

treme low water, or where the water has once been known to be,

the depth on the bars in the channel was eleven inches only; that

on the night of the 9th of July, 1845, when this transaction took

place, the water on the bars in the channel was thirty-nine inches

deep; that the average depth of water in the channel on said

bars, for the whole year, is six feet, or thereabout; that taking

the whole year round, one year with another, the water for nine

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months, or thereabouts, would be higher than it was on said

night of the 9th of July, and for three months, or thereabouts,

lower than it then was; that below the banks the shores and

bottom of the river are for the most part a gradually inclined

plane, converging towards the channel, and that at the place

where said canoe was landed, the edge of the water, at extreme

low water, is some fifty or sixty feet in a right line measuring on

the beach below where it was at that place on said night of the

9th of July. From these facts, the question presents itself, did

these defendants, in aid of the escape of these slaves, pass over

the territorial limits of Ohio, and enter within the limits and jur-

isdiction of the State of Virginia?

If they did not, then it is admitted by the learned counsel

who opened the case that they are not amenable to the laws of

Virginia. Whether they did so pass out of the limits and juris-

diction of Ohio, is the sole question that I intend to discuss.

This presents a simple question of boundary between the

two States, and must be settled in the same way, and by the same

law and principle that would govern it if the present were an in-

dictment against the defendants for stealing a bale of merchan-

dise at the place where these acts were done by them. And I

cannot but regret exceedingly that this question, so important to

the State of Ohio, should have arisen out of a transaction having

any connection with slaves or slavery, since this adventitious

circumstance creates a prejudice against the case, and gives it an

outward appearance of being something different from what it in

reality is, and which the mind has a natural tendency to associate

with the question that does in fact arise.

I am sure I should do great injustice to this honorable court

if I were to imagine it possible its judgments could be, in the

least degree, influenced by the outward and accidental form in

which this question is presented. Before, however, proceeding

to the argument of the question of boundary, I beg leave to sug-

gest that another important question might be made in advance

of it, which I propose to state, but not to argue. It is, whether

where the crime consists (as is alleged in this count of the indict-

ment), in carrying slaves out of one State into another, the courts

of either State have jurisdiction of the offence? Or whether the

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Boundary Line Between Ohio and Virginia.        71

 

trial and punishment of it does not exclusively belong to the juris-

diction of the Federal courts?  The principles laid down and

settled by the Supreme Court of the United States in the case of

Prigg vs. the Commonwealth of Pennsylvania (16 Pet. 539) raise,

to say the least of it, a serious doubt whether the sole power to

prescribe the punishment for such a case is not vested in the

Congress of the United States, and whether, as the law now

stands, an indictment can be found, or punishment inflicted, ex-

cept it be provided for by the act of Congress of the 12th of Feb-

ruary, 1798, entitled, "An act respecting fugitives from justice,

and persons escaping from the service of their masters." (See

2 Vol. L. U. S. 331.)

Passing over this inquiry, the question returns, was this act

done within the limits or jurisdiction of Virginia? I shall main-

tain it was not, and shall place the negative of this proposition

on several grounds.

The first ground upon which I shall maintain the negative

of this proposition is, that the Supreme Court of the United

States has so decided it. I shall give that decision a distinct con-

sideration by itself, and shall then present the case on its own

principles, independently of that decision. The claim now set

up for Virginia is, that her territory and jurisdiction extend to

the top of the bank on the Ohio side of the river. If that ground

be maintainable, then I admit the decision must be in favor of

the jurisdiction of the court over these defendants; but it is

equally obvious that, if such be the fact, then the case laid in the

indictment and specified in the statutes of Virginia, has not been

made out--that is to say, the slaves, if it be so, were not carried

out of Virginia into Ohio; which is the substantial fact alleged

in this count and in the statutes on which it is founded. But if

the top of the bank be not the boundary, then the argument in

behalf of Virginia concedes that she has no jurisdiction over the

case, since it is strenuously insisted by her learned counsel that

the boundary line must be either at the top of the bank on one

of the shores of the river, or in the middle of the channel, and

that the law of nations knows no other boundary between States

divided by a river than one of these. And proceeding on this

assumption, he has labored with great zeal and ability in his

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endeavors to overthrow the authority of the case to which I have

already alluded, and shall shortly direct the attention of the

court, in which it was decided by the Supreme Court of the

United States that the line of the low water mark on the north-

west, or Ohio side of the river, is the boundary. As I do not

intend, nor deem it material, to discuss the proposition laid down

by the learned counsel as the starting point of his argument,

that the boundary must be fixed at the top of the bank, or in the

middle of the stream of the Ohio, I will content myself with a

single comment on that topic, which is, that his position over-

looks the well established distinction, which he will find laid

down in numerous adjudicated cases, between those rivers

where the tide ebbs and flows, and are subject to maritime juris-

diction, and those rivers that are above tide-water, and beyond

the maritime jurisdiction, as in the case with the river Ohio.

His error consists in applying the law of tide-water rivers to all

rivers indiscriminately. For this distinction, see 3 Sumner's

Rep., 178. 2 Deveraux Rep., 30. 11 Ohio Rep., 142. 17 Wen-

dell, 571. 3 Kent's Com., 427. 14 Serg. & Rawle, 74. 6 Mass.,

435. 8 Greenleaf, 90.

I shall now return to the position that I propose first to

establish, viz.: that the Supreme Court of the United States has

already decided that the territory of Virginia does not extend to

the localities where the acts complained of were done; that the

low water mark, on the Ohio side, is the boundary. According

to that decision this court has not jurisdiction of the case, for

it is not claimed or pretended that these defendants went to

or beyond the low water line.  The case to which I refer is

Handley's lessee vs. Anthony, reported by Wheaton, 5 vol., 374.

It appears from the statement of the facts on which that case

was decided, that at a place on the upper side of the Ohio River,

in the State of Indiana, a considerable body of land is enclosed

by the river in the form of a peninsula; that on the upper side

or neck of the peninsula a channel or bayou puts out of the

Ohio, and running across the neck discharges itself into the

river on the other side of the peninsula; that at low water of

the Ohio, or when the river is less than ten feet above low

water, the channel is dry, and the peninsula forms a part of the

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Boundary Line Between Ohio and Virginia.     73

 

mainland; but when the river is more than ten feet above low

water (which is the case for a considerable portion of the year),

the peninsula becomes an island, wholly surrounded by the

water of the river; that at that point the river rises above low

water from forty to fifty feet. The United States being the

proprietor of the land on the upper, or Indiana side of the river,

as far as the limits of that State extend, surveyed this peninsula,

sold it out, and issued a patent for it to the purchaser. The

State of Kentucky, which owned the country on the lower and

opposite side of the river, as far as her limits extend, granted a

land warrant to one of her citizens, who laid it down on this

peninsula, and obtained a patent from that State for the same

land covered by the patent from the United States. The Ken-

tucky patentee then brought an action of ejectment in the Cir-

cuit Court of the United States, held in the State of Kentucky,

against the claimant under the patent from the United States,

who was in possession of the land. Both governments had

granted patents for the same land. The title, it is plain, could

not exist in both at the same time, nor could the land be within

the limits of both States, consequently one of these patents was

of necessity invalid. The patent was void which had emanated

from that government beyond whose limits the land was situ-

ated. In this state of facts the plaintiff's case necessarily rested

on the sole question, whether the land in controversy was within

or without the limits of Kentucky. If the boundary of Ken-

tucky (which at the time of the cession by Virginia of the

country beyond the Ohio to the United States was a part of Vir-

ginia, and has therefore now the same river boundary as Vir-

ginia), extends, as is now claimed, to high water mark, or the

top of the bank on the upper side of the Ohio, then it is plain

the land in controversy in that case was within the limit of Ken-

tucky, and the Kentucky patentee would be entitled to recover

the land. The court, therefore, in deciding against the validity

of the Kentucky patent, of necessity repudiated the top of the

bank, or high water mark, as the boundary. It is perhaps,

worthy of remark, that the case was tried in the Circuit Court,

by Kentucky lawyers, and before a court composed of judges

who were citizens of Kentucky, one of whom was a judge of

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the Supreme Court of the United States. It was tried by men

who had an interest, and no doubt felt a disposition to maintain

the limits of Kentucky to their legal, fair and full extent.

When the case was brought up to the Supreme Court of the

United States, it was argued for the plaintiff by counsel from

Kentucky of the highest eminence in that State, and for the de-

fendant by a member of the Virginia bar, then being the Attor-

ney General of the United States. And the final decision of the

court was pronounced by Chief Justice Marshall, who was him-

self a citizen of Virginia. The boundary now contended for, as

I have already said, would, if maintainable, have rendered the

plaintiff's recovery in that case certain and irresistible. This

could not have escaped the court or bar, especially a court and

bar so composed, yet no such claim as a boundary at the top of

the bank or at high water mark was set up or even alluded to

by the court or counsel. Is not the inference irresistible, that it

was regarded by all as too absurd to be seriously advanced? On

the trial of that case in the Circuit Court, it was insisted by the

plaintiff's counsel that the medium stage of the river, between

high and low water on the upper side of the Ohio, was the

boundary, and the court was called upon so to instruct the jury.

The court refused to give it, and, instead thereof, instructed

them that the low water line, on that side of the river, was the

boundary between Kentucky and Indiana. This charge was ex-

cepted to by the plaintiff's counsel, and it came under the direct

revision of the Supreme Court of the United States on writ of

error. The instruction given to the jury was affirmed by that

court, in all its points. Now this high and direct authority

must be broken down before a decision can be rendered in this

case against these defendants. This is admitted by the learned

counsel, and hence his effort to overthrow it. I admit that this

decision, how high so ever the respect to which it is entitled, is

not legally and strictly binding and conclusive upon the States

on either side of the Ohio. They were not parties to it, and

had no opportunity afforded them to exhibit their titles, and

maintain their rights and claims before the court. And this is

more emphatically true of the States on the northwest side of

the river, which had no part or lot in the management or prep-

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Boundary Line Between Ohio and Virginia.     75

 

aration of the case. The rights of the States came under the

examination of the court incidentally in a controversy between

others, and cannot, therefore, be conclusive in a direct issue

made up between them, if they shall hereafter see fit to settle

their boundaries by an appeal to the Supreme Court of the

United States, in the mode prescribed by the Constitution.

And I shall hereafter show that certain facts were assumed as

true, without any apparent investigation, both by the court and

bar, upon which the court predicated the opinion that the low

water mark on the upper side of the river, is the boundary;

whereas, if the title to the country beyond the Ohio, and its true

history, had been put into the record in that case, so as to bring

it within the reach of the court, and call for a decision upon it,

the judgment of the court must have been that the middle of

the channel is the boundary. All the parties to that case, both

the court and bar, assumed, without any historical investigation

in the court below, that Virginia was the original proprietor of

the country beyond the Ohio River, and that the question of

boundary was to be decided by laws of Virginia, and by her deed

of cession to the United States. This case came up to the

Supreme Court of the United States made up on this hypothesis,

and in that court its decision was predicated upon the record as

it was presented to it. Proceeding on this assumption, it was a

powerful analysis of those laws and of the deed of cession, for

which Chief Justice Marshall was so eminently distinguished,

that he came to the conclusion that the low water line of the

river was the boundary. In this way the case was presented in

the best possible aspect for a decision the most favorable to the

claims of Virginia. The erroneous assumption on which the

precise decision turned, therefore, by no means weakens, but in

fact strengthens the weight of the authority of that case as

against the States of Virginia and Kentucky. Having assumed

that Virginia had the original title to the country beyond the

Ohio prior to the deed of cession, the learned judge proceeds

to lay down the foundation principle on which the decision

rested, in the following words, viz: "When a great river is the

boundary between two nations or States, if the original property

is in neither, and there be no convention respecting it, each holds

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to the middle of the stream. But when, as in this case, one State

is the original proprietor, and grants the territory on one side

only, it retains the river within its own domain, and the newly

created State extends to the river only. The river, however, is

the boundary." (5 Wheat., 379.)

The principle here stated shows clearly that the decision

rested wholly on the assumption that V rginia was the original

proprietor of the ceded country, and that if it was erroneous, as

I shall endeavor to prove it was, then the middle of the river is

the boundary. The learned counsel for Virginia maintains that

the bank of the river as contradistinguished from the water edge

at low water is the boundary. The distinction between the bank

or shore and the water which composes the river at that stage,

which the court denominates the "permanent river," did not

escape the attention of the Supreme Court in the case on which

I am now commenting. Judge Marshall bestowed especial care

upon it. He begins by citing the language of the deed of

cession. He says: " She (Virginia) conveys all her rights to the

territory situate, lying, and being to the north-west of the river

Ohio. And this territory, according to express stipulation, is to

be laid. off into independent States. These States then are to

have the river itself, wherever that may be, for their boundary.

This is a natural boundary, and in establishing it Virginia must

have had in view the convenience of the future population of the

country." (5 Wheaton, 379.) And further on, at page 380, he

says: " Wherever the river is a boundary between States, it is the

main, the permanent river, which constitutes that boundary; and

the mind will find itself embarrassed with insurmountable diffi-

culties in attempting to draw any other line than the low water

mark." In the last sentence of the opinion, he makes a direct

and express distinction between a river and its shore, and says

the States beyond the Ohio were to own the shore of the river.

He says: "the shores of a river border on the water's edge."

(5 Wheat., 385.) In other words, the one is land and the other

is water. If, therefore, you have a boundary by the river, it is

a water line of division, if by the shore, it is a land boundary as

contradistinguished from a water line, and in that case, the top

of the bank would probably be the boundary line. In the

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Boundary Line Between Ohio and Virginia.       77

 

passages cited, and throughout the opinion of the court, the

distinction is kept up between the river and its bank-between

a water line of boundary and a line on dry land. It maintains

that the deed of cession granted the country "to the north-west

of the River Ohio; that is to say, to the north-west of the

permanent water of the river, and not to the north-west of the

river bank, as is now contended for. And as a deduction from

this doctrine, he goes on to lay it down that this low water mark

is a fixed line of boundary. He uses these words: "The same

tract of land cannot be sometimes in Kentucky and sometimes

in Indiana, according to the rise and fall of the river. It must

be always in the one State or the other." (5 Wheat., 382.)

But that eminent judge did not content himself with resting

on the strict meaning and effect of the words of the deed. He

goes further and places his interpretation of it on broad and

enlightened views of public policy. He remarks that Virginia

provided for the erection of independent States in the ceded

territory, and that in fixing their boundary, she "must have had

in view the convenience of the future population of the country."

And on this topic he also adds; "In great questions which con-

cern the boundaries of States, where great natural boundaries

are established in general terms, with a view to public con-

venience and the avoidance of controversy, we think the great

object, where it can be distinctly perceived, ought not to be

defeated by those technical perplexities which may sometimes

influence contract between individuals."

With the permission of your honors I will now make a

practicable application of the liberal and enlightened views of the

court. In the short interval of time that has elapsed since the

date of the deed of cession, three great states have risen up on

the north-western shore of the river, whose aggregate population

even now exceeds that of the whole confederacy when the deed

of cession was executed, and which eventually, in the fullness

and maturity of their development, will contain a greater number

of people than the whole Union at this day. Everything there

is yet in its infancy. But already towns and cities have every-

where sprung up on the river shore, and on all the lines of

interior communication with it. That river is already the channel

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and thoroughfare of a surprisingly active internal commerce.

On its shores, on the identical ground that is now in dispute,

must be annually laid down the accumulated surplus product

of the active industry of millions of people as the point from

which to take its departure for the markets of the world. But

this is not all; the great and important business of transhipment,

with the ten thousand contracts incident to it, must forever be

done on this very disputed shore. Upon it also must be landed,

for distribution in the interior, all those return supplies of

merchandise and commodities which minister to the wants and

comforts of this great population. Look, for example, at the

city of Cincinnati, and picture in the imagination what may

be seen there any day in the year - her lovely port crowded with

steamers, and almost innumberable other water crafts, with their

rich and varied cargoes -her wharves, crowded with busy,

bustling people, and with every variety of merchandise, where

contracts are making, and property changing hands almost every

minute of the day--all on this disputed ground; and is it not a

matter of vital moment that it should be known with certainty

by what law these people are to be governed, and their contracts

regulated, while there in the transaction of their daily business?

Can any one fail to perceive the absolute necessity of a strong

and effective local police, and a code of police laws, to control

and keep in subjection the loose and disorderly masses of men

thus congregated together from the most distant parts of the

country? Can it promote the convenience of the people of Ohio,

or of those who come there to do business, that the wharves

and shores of the river, and the water-craft lying there, shall

be governed by such police laws as Kentucky might choose to

make? That the contracts made at the Ohio shore, and on the

boats attached to it, shall be governed by the laws of Kentucky

or Virginia, and of which they know nothing, and were not even

thought of when they entered into them? That the citi-

zens of Ohio, while thus engaged, should be there arrested

and carried into imprisonment by the officers of the opposite

States, their contracts subjected to, and their persons punished

by laws made by men in whose election they have had no voice,

and over whom they can exercise no control or influence? Or

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Boundary Line Between Ohio and Virginia.       79

 

would not these things, in any community whatever, be justly

regarded as an intolerable grievance? Go into the city of Cin-

cinnati or into any town on the Ohio, and ask its business inhabi-

tants what part of all their public streets, or places of resort,

they could least afford to give up to the control of the State on

the opposite bank, and they would tell, with one united voice,

that the wharf on the river, and shore on the river, were the last

that they could surrender. And of what use, let me inquire,

would this power be to you, if you had it, but to keep up and

nourish an everlasting enmity between you and us, and administer

food to a never-dying feud? Does it comport with that regard

for "the convenience of the future population," which the

venerable Chief Justice says Virginia must have had in view in

providing for the erection of new States on the Ohio? Is it con-

sistent with this statesmanlike and benevolent intention of Vir-

ginia that if the people of the new States have occasion to erect

a wharf at the water edge, to carry a railway to the river, to lay

down a suction pump to draw up supplies of water for their

steam machinery, or for the daily wants of the inhabitants of

their towns-in a word, to approach the water and use it for a

thousand new and nameless purposes, which the fast multiplying

pursuits and wants of society, in the progress of that civilization

they fondly hope to attain, will render indispensable to their

comfort and prosperity, that you should have the power, at

your will, to stop them all? Like all unfit and misplaced power,

it would be a curse, both to you and to us, if you had it. It is

true, that if you could make a final decision of this question in

your favor, and should do it, you would for the moment quicken

into life a wild spirit of speculation. For who can doubt but

that so soon, and as fast as steam would carry them to its shores,

multitudes of adventurers would rush there to lay down your

land warrants upon the river shore between high and low water

mark on the whole line of the border States! I solemnly de-

clare, as a citizen of Ohio, that if you were to offer us this

power over the Virginia shore, I would not take it as a gift. I

would not accept power that would bring with it perpetual an-

noyance, collision, and never-ending controversies between those

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who are neighbors, and whose interests it is, and ever must be,

to be friends.

Before passing from this topic to the next head that I pro-

pose to discuss, permit me to inquire whether, in case you hold

that Virginia has a right to make arrests on the Ohio shore, that

her laws, both civil and criminal, extend there, you will not

thereby involve your own people, on your own side of the river,

in a like responsibility to the laws and jurisdiction of the State

of Ohio? In a word, whether a regard to your own policy and

convenience would not admonish you to abstain from such a de-

cision? I shall endeavor to show that, place the actual boundary

where you may-at the top of the bank, at the medium stage

of the water, at low water mark, or in the middle of the channel

-and Ohio has a right to do on the Virginia shore whatever

Virginia has a right to do on the Ohio side. When Virginia

passed her act of Assembly in December, 1789, to enable the

people of Kentucky to form a constitution and become a State,

she proposed to Kentucky certain conditions for her assent,

which were to be binding on both parties. One of these condi-

tions related to the Ohio River, and proposed that its use and

navigation along its course in passing Virginia and Kentucky

should be free and common to the citizens of the United States,

and that the respective jurisdictions of those States should be

concurrent with the States possessing the opposite shores of the

river. This condition was assented to by the convention that

formed the constitution of Kentucky, and the admission of Ken-

tucky into the Union was an act of assent thereto by Congress.

And thus validity and effect, according to the form prescribed by

the Constitution of the United States, was given to this compact

between the two States, and is binding and obligatory on both.

That condition or compact is in these words, viz.: "The use and

navigation of the River Ohio, so far as the territory of the pro-

posed State (Kentucky), or the territory which shall remain

within the limits of this Commonwealth (Virginia) lies thereon,

shall be free and common to the citizens of the United States,

and the respective jurisdictions of this Commonwealth and of the

proposed State on the river as aforesaid, shall be concurrent only

with the States that may possess the opposite shores of the said



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Boundary Line Between Ohio and Virginia.       81

 

river." (See Henning's Virginia Statutes, 13 Vol., page 19,

sec. 11.) By every known rule for the interpretation of statutes,

the words "River Ohio" found in this compact mean the same

identical river, neither more nor less than is meant by "Ohio

River" in the act of cession passed by Virginia six years before.

And here permit me to inquire, what is jurisdiction? It is the

right of dominion-of sovereign command over any place-the

right to make laws for it and carry them into execution; and all

of these rights where there is no convention respecting them are

exclusive of the rights of all others. (See Vattel, Book 2, chap.

7, sees. 83-84.)

The lexicographers define the word concurrent to mean

"joint and equal, existing together, and operating on the same

objects." It follows, then, as an irresistible conclusion from a

grant of concurrent jurisdiction, that if the river, with the Vir-

ginia jurisdiction, extends on the Ohio side to the top of the

bank, it extends with the Ohio jurisdiction to the corresponding

place on the Virginia shore; that if Virginia can make laws for

the river beach on the Ohio side between high and low water

mark, can serve process there, can seize persons standing there,

and try them in her courts for acts done there, so can Ohio do

the same things on the Virginia shore. Need I ask whether the

citizens of the city of Wheeling, of the town of Parkersburg, or

the people of Virginia who dwell upon the banks of that river,

would be satisfied, or ought to be, with a construction of this

compact between Virginia and Kentucky that will bring the laws

of Ohio to operate on their persons, conduct, and contracts,

while engaged at their daily and ordinary business at their steam-

boats, wharf-boats, and other craft lying at their shore; and not

only that, but when they are on dry land between high and low

water mark on their own side of the river? Nor need I say that

it could not have been understood by those who made this com-

pact that the limits of the river were as broad as is now con-

tended, or that compact would never have been proposed, with-

out qualification or restriction upon the jurisdiction of the op-

posite States.

It has not been claimed in the argument for Virginia, nor

can it be successfully, that Virginia, by virtue of this grant of

Vol. IV-6

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concurrent jurisdiction, acquired any rights beyond her terri-

torial boundary, wherever that may be. It must be remembered

that Virginia and Kentucky were the grantors of this jurisdic-

tion; the States on the opposite side are the grantees; the latter

have granted nothing. They must themselves become grantors

before Virginia and Kentucky can come over the line of their

boundary, wherever that may be, which was created by the deed

of cession. And thus we are brought back again to the question

already discussed, and already settled in the case of Handley's

lessee vs. Anthony, viz.: Where is the boundary by virtue of

that cession ?

I have closed the discussion of that question, and shall now

proceed to a second and much broader inquiry. That Virginia,

during the war of the revolution, set up a claim to the country

beyond the Ohio River is unquestionable; but I shall insist, and

endeavor to prove, that she never had a valid title to it; that her

title not only to it, but to both sides of the Ohio, was disputed

by the confederacy, and by other States; that they claimed all

that she asserted a right to; that, in the end, she adjusted her

claim by compromise, as other sovereignties are in the habit of

settling their disputes; that it was thus settled, and she relin-

quished her claim beyond the Ohio, with the express understand-

ing that the acceptance of her act of cession was not to be taken

as an admission by the confederacy (who was the grantee) that

Virginia had a title to the country ceded by her; that the separate

and acknowledged right of Virginia to the country on the lower,

and of the confederacy to that on the upper bank of the Ohio,

begun with this compromise, and, consequently, that the rights

of the States on the opposite shores are co-eval with each other,

and that this compromise controls and determines the extent and

legal effect of the deed of cession by Virginia.

If I can succeed in establishing these facts, which, in a great

measure, depend upon history, then I shall have shown that, in

the case of Handley's lessee vs. Anthony, the court and the parties

fell into an error of fact in assuming that Virginia had the original

title to the country beyond the Ohio, and shall have brought this

case plainly within the principle of the law of nations, already

adverted to, and recognized by the court in that case, viz.: that

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Boundary Line Between Ohio and Virginia.     83

 

"when a great river is the boundary between two nations or

States, if the original property is in neither, and there be no con-

vention, respecting it, each holds to the middle of the stream."

(5 Wheat., 379; Vattel's Law of Nations, book 1, chap. 22, sec.

226; Wheaton's Law of Nations, 1 vol., 219-220.)

I have already shown that upon the facts assumed, the case

of Handley's lessee vs. Anthony was decided right. I shall show,

in the course of my historical examination, that if the true facts

in respect to the original title to the country beyond the Ohio

had been before the court, and made a part of the record in that

case, the decision, then, must, and would have been, that the

middle of the Ohio is the boundary. The Supreme Court of the

State of Ohio has, two or three times, acknowledged the authority

of that case, and held, in conformity to it, that the low water

mark on the Ohio side is the boundary. (See 2 Ohio Rep., 310;

11 Ohio Rep., 142; November number, 1843, of Western Law

Journal, page 54.)

But that court must be presumed not to have known that

Handley's lessee vs. Anthony was decided upon an erroneous

assumption of facts. I shall now endeavor to establish the

position that the middle of the stream is, in fact, the true legal

boundary between Ohio and Virginia. I may as well remark

here that where a river or an arm of the sea divides two coter-

minous countries, the law of nations does not favor the exclu-

sive claims of either (such as is set up here by Virginia) to the

whole rivers.

Mr. Wheaton, in his Treatise on the Law of Nations (1 vol.,

219-220), lays down the rule that where a navigable river forms

the boundary of two States, the middle of the channel is generally

taken as the line of separation between them; that a claim of

exclusive property over rivers or portions of the sea, contiguous

to a country is not to be viewed with much indulgence; that the

general presumption that each owns to the middle bears strongly

against such exclusive rights; that they are to be strictly con-

strued, and clearly made out. From this doctrine, it would

follow that if I even prove it to be doubtful whether Virginia

had, in fact, a title to the country beyond the Ohio, then the

middle of the channel is the boundary. The learned counsel for

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Virginia founds the title of that State to the territory beyond the

Ohio upon the charter of King James I, in the year A. D. 1609,

now commonly called "the Virginia charter." This is the same

title upon which she vested her claim to it at the period of the

American revolution, and when she compromised her dispute

with the confederacy. This appears from her act of cession of

October 20, 1783, passed to authorize her delgates in Congress

to convey the country to the United States, and in the deed of

cession, made in conformity to the act on March 1, 1784-the

language of the act of assembly and of the deed of cession being

that they "convey, transfer, assign, and make over to the United

States, in Congress assembled, for the benefit of the said States,

all right, title, and claim, as well of soil as jurisdiction, which

the said commonwealth hath to the territory within the limits of

the Virginia charter situate, lying, and being to the northwest

of the River Ohio." (1 vol., L. U. S., 474.)

I shall now proceed to inquire whether the Virginia charter

did, in fact, furnish a foundation upon which that State could

sustain a title to the country beyond the Ohio, or to any portion

of the territory west of the Allegheny Mountains. To obtain a

right understanding of the legal effect of this charter it is neces-

sary to know what it, in fact, was-to whom, and under what

circumstances, it was granted. This Virginia charter was not,

as the name now given to it and that by which it is called in the

act of cession would seem to imply, a charter to Virginia, or to

the colony of Virginia, or to the people of Virginia, but it was a

charter by James, in 1609, to a company of gentlemen residing

principally in and about the city of London, and who, by that

charter, were organized into a corporation under the name and

style of "The Treasurer and Company of Adventurers and Plant-

ers of the City of London for the First Colony of Virginia." By

this charter, the King, in the first place, authorized this company,

which was anciently called "The London Company," with his

license to purchase and hold " any manner of lands, tenements,

and hereditaments, goods, and chattels within our realm of Eng-

land, and dominion of Wales." He, in the next place, grants to

the corporation, their successors, and assigns, "all those lands,

countries and territories situate, lying, and being in that part of

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Boundary Line Between Ohio and Virginia.      85

 

America called Virginia, from the point of land called Cape or

Point Comfort all along the sea coast to the northward two hun-

dred miles, and from the said point of Cape Comfort all along the

sea coast to the southward two hundred miles, and all that space

and circuit of land lying from the sea coast of the precinct afore-

said up into the land throughout, from sea to sea, west and north-

west; and, also, all the islands lying within one hundred miles

along the coast of both seas of the precinct aforesaid "-to hold

the same in free and common socage. (See Henning's Virginia

Stat., 1 vol., 88-89; 1 vol. Hazard's Coll., 64-65.)

The first thing that strikes us in reference to the question

we are now making is that, that the fee to the country is vested

in the corporation, their successors, and assigns, and not in the

colony or people of Virginia. By the words " from sea to sea,"

the Atlantic and Pacific are supposed to be meant. The grant

begins by drawing a base line of four hundred miles in length

along the Atlantic coast, of which Point Comfort is the center,

the northern extreme of which would be at or near Cape May, in

New Jersey, and the southern termination at or near Cape Fear,

in North Carolina. From one of these terminations a line was to

be drawn west, and from the other northwest, back into the land

" from sea to sea;" but from which extremity the west, and from

which the northwest line is to be run, the grant does not specify.

If the west line be drawn from the northern termination of the

coast line, and the northwest from its southern termination at

Cape Fear, it would leave the State of Ohio west of, and beyond,

the grant; but as these two lines would come together before

reaching the sea, the Virginia construction, and for that reason,

I suppose, the correct one, always has been that the west line

must be drawn from the southern termination on the coast, and

the northwest line from the other extremity of the coast line.

If the lines be drawn in this way, the west line would strike the

Pacific in the Gulf of California some eight degrees of latitude

south of the present boundary line between the United States

and Mexico. The other, or northwest line, would cross into

Canada somewhere between Lakes Erie and Ontario, and strike

the Pacific in the Arctic Circle, somewhere north of Behring's

Straits, embracing a portion of the continent that would make

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not less than forty-five or fifty States of equal extent of territory

with the present State of Virginia.

The very magnitude of the grant is calculated to astound us.

That a territory of such immense extent should have been given

away by the crown to a company of adventurers who proposed

to plant a small colony there, seems to be all but incredible, and

irresistibly leads the mind to suspect that the grantor labored

under some great misapprehension or mistake. To determine

what effect the law of nations would give to this grant, it will be

necessary, in the first place, to turn our attention back to the

state of things that then existed. And, here, I may as well re-

mark what I intended to have said before, that I fully agree with

the learned counsel for Virginia, that, in searching for the inter-

pretation and legal effect of this charter, of the deed of cession

by Virginia to the United States, of the arrangement or compact

between Virginia and Kentucky granting concurrent jurisdiction

on the Ohio to the opposite States, we are to look wholly to the

law of nations, whose principles are broader and larger than

those of the common law, or any other mere municipal code. At

that time the north-west coast of America was wholly unknown,

the interior of the continent had never been penetrated from

either ocean, and, except the line of coast along its Atlantic

border, the vast region of country embraced within the limits of

this grant was a sealed book to the world, of whose contents all

civilized men were profoundly ignorant. At that day, the idea

of finding a passage between the Atlantic and Pacific, through

or around the northern part of the American continent, agitated

the minds of men, and deeply engaged the attention of kings.

Enough had been discovered by navigators to excite their hopes,

and greatly to deceive them as to the real extent and character of

this part of the continent. Sir Francis Drake, not long before,

from the top of a mountain in the Isthmus of Darien, had seen

both oceans. This naturally led to the inferenee that the conti-

nent was a long and narrow strip of country. Some two or three

years before the date of this charter, a small English colony had

settled down near Point Comfort, under the auspices of this

London company, who, in 1606, had obtained a charter for a

narrow strip of country on the coast, which, on account of that

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Boundary Line Between Ohio and Virginia.     87

 

settlement, was made the center of the new, and second, charter

in 1609. Smith, in his history of Virginia, relates a fact which

shows that, at that time, it was the belief in England that the

South Sea, as the Pacific was then called, was but a short dis-

tance from the Atlantic. He states that, in the year 1608, the

year before the date of the charter, "they fitted up, in England,

a barge for Captain Newton, who was afterward a deputy Gov-

ernor of Virginia, under the charter, which, for convenience of

carriage, might be taken into five pieces, and with which he and

his company were instructed to go up James River as far as the

falls thereof (where the city of Richmond now is), to discover

the country of the Monakins; and from thence they were to pro-

ceed, carrying their barge beyond the falls, to convey them to the

South Sea, being ordered not to return, without a lump of gold

or a certainty of the said sea"-the discovery of gold and of a

passage into the Pacific being the two great ideas of that age in

respect to America.

Smith, also, gives an account of a voyage of discovery which

he made that same year (1608) from Jamestown up the Chesa-

peake Bay, and says "that the tidings which were brought, on

their return, gratified the expectations of every one that, accord-

ing to the relations of the Indians, the bay stretched into the

South Sea." The charter was granted the next year. Consider-

ing the state of the knowledge of the geography of the country,

there can be no doubt King James imagined he, in granting the

territory from sea to sea, was disposing of a country of no great

extent inland, and fully accounts for what would, otherwise, be

incredible. Prior to this time, however, the English navigators

had explored the coast of Virginia, and discovered its rivers,

which, as already stated, had been followed up by a settlement

near Point Comfort. This, by the acknowledged law of nations,

gave title on that coast to the King of England; and, if the dis-

tance between the oceans had, in fact, been as small as was then

believed, with a practicable water communication between them,

he would, as that law was then claimed and is now admitted to

be, have been proprietor of the whole country embraced within

the terms of his grant. But if the King of England had any

just conception of the country, then he could not have granted

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away, or, rather, attempted to grant away all this territory, with-

out, as I shall hereafter show, a direct violation of the foundation

principle on which he could alone support a claim to any part of

the continent of America. It is, therefore, quite apparent that,

in making this grant, King James did not intend to overstep the

law of nations by disposing of what did not belong to him. And,

now, I am prepared to put the inquiry: What did the charter,

in fact, grant to this company? I answer: Just as much as the

Crown of England had title to-just as much as belonged to it,

and no more-for, all beyond that, the grant was not worth the

parchment on which it was written. It is plain kings cannot

grant what does not belong to them, more than other men. The

law of nations forbids it. If it were permitted, it would fill the

world with contention, and unsettle all public rights. Nor can

they grant that which belongs to nobody- that which has never

been subjected to the actual possession, use, and dominion of

man. (See Vattel, book 1, chap. 18, secs. 203, 204, 205, 206, 207,

and see note to sec. 207.) And this presents the question, How

much of the granted country did the Crown of England own?

To answer this inquiry satisfactorily, we must resort to those

principles which have been settled by the law of nations. It is a

rule of that law that the first finder, and actual permanent occu-

pier of an unknown, uninhabited country acquires an exclusive

property in, and dominion over, it, subject, however, to this

qualification or exception, that the quantity of territory appro-

priated by him must be proportionate to his wants and his ability

to use it  The general rule is that the first discoverer and occu-

pier acquires title.  Spain first discovered this continent, and

made the first settlement on it  She, therefore, as the first finder

and occupier, claimed the whole of it. This was a specious

claim, but it was resisted by other nations, and England was one

of them, who insisted on the qualification of the rule. To

strengthen her claim, Spain applied to the Roman Pontiff, who

was then in the zenith of his power. The Pope, as the Vicar of

Christ on earth, granted the whole continent to Spain, and forbid

all other sovereigns or people, under pains and penalties, from

interfering with it. No nation in Europe, however, except Por-

tugal, which had got a similar grant from the Pope of the

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countries beyond the Cape of Good Hope, paid any attention to

this grant. England was foremost in resisting it, in insisting on

the qualification of the rule, and in sending out her navigators

to explore the uninhabited portions of the continent, and in form-

ing settlements on such parts of it as were vacant. This same

King James was particularly active in his opposition to this pre-

tension of Spain.  He sent out navigators on voyages of dis-

covery, granted charters, and planted colonies. When he made

this grant, a little band of his subjects had planted themselves

on the coast of Virginia, who, altogether, would make a small

village, and could not possibly, for centuries to come, actually

people the country embraced within what are now known to be

its limits, which are almost as large as all of Europe. If, there-

fore, he knew what he was granting, as we know he did not, he

was guilty of a gross violation of the principles of his own gov-

ernment, and of the law of nations.  Both England and the

United States are now engaged in a controversy about a large

division of the territory embraced in this grant, and both found

their claims, upon discovery and settlement, made near two hun-

dred years afterward. Vattel, after laying down the rule that all

mankind have an equal right to things that have not yet fallen

into the possession of any one, and that they belong to him who

first takes possession of them, says, "but it is questioned whether

a nation can, by the bare act of taking possession, appropriate to

itself countries which it does not really occupy, and thus engross

a much greater extent of territory than it is able to people or

cultivate. It is not difficult to determine that such a pretension

would be an absolute infringement of the natural rights of men,

and repugnant to the views of nature, which, having destined

the whole earth to supply the wants of mankind in general, gives

no nation a right to appropriate to itself a country, except for

the purpose of making use of it, and not of hindering others

from deriving advantage from it. The law of nations, therefore,

will not acknowledge the property and sovereignty of a nation over

any uninhabited countries, except those of which it has really taken

actual possession, in which it has formed settlements, or of which

it makes actual use." (See Vattel, book 1, chap. 18, sec. 208.)

From a regard to the fitness of things to provide for the

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future wants and business of men, and to give ample but reason-

able scope for the expansion of newly-formed communities, a

somewhat liberal application has been given to these principles.

It has been and is a received doctrine that the nation which first

discovers a river, and permanently settles on its waters, thereby

acquires title to all the territory drained by it. And this is be-

lieved to be as far as these principles have been extended, or

their extension acknowledged. On that ground, the United

States now claim the whole country drained by the Columbia

River. Great Britain does not deny the principle to this extent,

but she disputes the fact of our prior discovery and settlement

on the waters of that river. At the date of this charter, neither

the Ohio River nor any of its waters, nor the countries beyond

it, had been discovered, much less occupied; nor was it discov-

ered or occupied for near or quite a century afterwards. To

how much country, then, within the limits of that charter had

the Crown of England a title, which the law of nations would

recognize as valid? I answer: To so much as is divided by the

rivers that flow into the Atlantic, and had been discovered by

the English navigators, followed up by settlement, and no more.

In other words, to the top of the Alleghenies, those highlands

that divide the known from the then unknown rivers. Beyond

that, the charter was clearly a nullity, on the same principle that

the Pope's grant of the continent was repudiated by the law of

nations. Both grants belong to the same class. It is plain Vir-

ginia must look to something else than to that charter for a title

to the country beyond the mountains. And here permit me to

advance one step further. For the sake of the argument, I will

imagine that the charter did, in fact, vest in the corporation a

valid title to all this boundless and unknown region. And now,

let me inquire: Did it remain in force, and perpetuate and

transmit an unextinguished right to the countries down to the

date of the deed of cession, in 1784? This charter, among

other things, provided for a council of thirteen persons, who

were to hold their sittings in the city of London, in whom was

vested the power to appoint to, and remove from office the Gov-

ernor and all other officers of the colony, "and, also, to make,

ordain, and establish all manner of orders, laws, directions, in-

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Boundary Line Between Ohio and Virginia.       91

 

structions, forms, and ceremonies of government and magis-

tracy, fit and necessary for, and concerning the government of

said colony and plantation." (Hazard's Coll., 1 vol., 67.) The

charter deprived the colonists of all power or voice in their own

affairs, and, what made it all the worse, they were to be gov-

erned by this council three thousand miles off, composed of men

who had no opportunity to see with their own eyes the bad

effects of their follies, mistakes, or acts of oppression. As

might have been expected, matters went on badly with the

colony. Complaints of abuses of the home council, of the colo-

nial governors, and of the official oppressions on the colonists

were perpetual. This state of things continued for fourteen

years, when the king caused a writ of quo warranto to be used

against the corporation for abuse of power. At the trinity term

of the Court of King's Bench, in 1624, judgment was rendered

against the corporation, canceling the patent, and ordering the

franchises of the charter to be resumed by the crown. (See

Chalmer's Annals, 62.)

Thus ended the charter, and the crown, by the judgment of

the court, became re-invested with the fee of the land granted

to the corporation. In August of the same year, the king is-

sued a commission, appointing a governor and eleven councillors

to reside in the colony, to whom the government of its affairs

was committed. (1 Haz. Coll.; 189.) This commissioner gives

a history of the proceedings in the quo warranto, the judgment,

and the causes for which it was rendered. Thus, Virginia be-

came what is commonly called a crown colony, and so remained

down to the date of the American revolution. The king, in

this matter, appears to have acted with fairness, and with a view

to the welfare of the people of the colony. He confirmed to

them all their property, and all rights to lands which they had

purchased of the corporation. It cannot be denied that the

King's Bench had full power to render this judgment, nor was

the regularity of the proceedings ever called in question, so far

as I can find. By this judgment, the people of the colony were

placed on the footing of other subjects of the crown, and their

connection with the corporation dissolved. The crown now,

again, held the territory as it held it before the charter, and,

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thenceforth, sold out, or granted away, the vacant lands at its

pleasure. If it be urged that the vacation of the charter was a

high-handed measure-an unjust attack on the rights of the

colony and its people, and, therefore, the judgment of the court

ought to be disregarded and treated as a nullity, and the charter

held to be in full force, the judgment to the contrary notwith-

standing-the answer is, that the legislative and public proceed-

ings of Virginia prove the very reverse of this. It was natural

that the corporators, the men who had thus been deprived of

their property, should endeavor to get it back, and to obtain a

renewal of their charter, on which they had expended much

money. They, as it appears, made the attempt; but it was

strenuously and successfully resisted by the people of the colony.

About fifteen or sixteen years after the dissolution of the cor-

poration, the governor and council of Virginia sent an inhabit-

ant of the colony to England, of the name of Landis, on some

public business. Instead of attending to the mission on which

they sent him, he exhibited a petition in the House of Com-

mons, praying for a restoration of the letters patent of incorpor-

ation to the late London company. He was probably invited to

do this by the old members of the corporation who lived in Lon-

don. When news of this proceeding came to Virginia, the

Grand Assembly, as their General Assembly was then called,

took the matter in hand. According to their statement, they

had a great and solemn debate on this subject, which resulted in

passing an act, prefaced by a preamble, or declaration (as they

call it), setting forth their reasons for passing it. They com-

mence by averring that Landis had mistook the business on

which they sent him-that he had no authority from them to

present the petition. They proceed to expatiate in strong and

eloquent language on the intolerable abuses of the old corpora-

tion, and on their comparative happiness and prosperity under

their new government. They deny that they or the people of

the colony ever desired or sought after a restoration of the cor-

poration, and they say that "the old corporation cannot, by any

possibility, be again introduced without absolute ruin and the

dissolution of the colony." And, finally, to sum up the whole,

they " declare and testify to all the world that they will never

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admit the restoring of said company," saving, however, to them-

selves, "a most faithful and loyal obedience to his sacred

majesty, their dread soverign."

All this is followed by an act declaring that any person who

shall endeavor to restore or reduce the colony to a corporation

or company, shall forfeit all his estate within the limits of the

colony, one-half to the informer and the other half to public

uses. This act was passed April 1, 1641. (See 1 Vol. Hen.

Stat. 230.)

The history of Virginia shows that these colonists had good

reason to resist the restoration of the corporation. The charter

government from the time of the first charter in 1606, had ex-

isted about eighteen years before its vacation. During that time

more than nine thousand emigrants had been sent to Virginia,

and yet at the dissolution of the corporation the colony was re-

duced to about eighteen hundred. When this attempt was made

to restore the charter the new government had been in operation

about the same length of time, and the population of the colony

had risen up to about twenty thousand. (1 Vol. Marshall's Life

of Wash. 68.)

About thirty years still later, the General Assembly sent

certain agents to England to endeavor to procure a modification

of the colony government. In their correspondence with the

officers of the crown the old charter is mentioned by them, in

which they say the old charter was called in at the instance and

for the sake of the planters. (2 Vol. Henning's Stat. 526.) It

would seem to be quite too late now to set up or insist on the

validity of a charter which was vacated at the instance and for

the sake of the early colonists, that relieved them from oppres-

sion, advanced their happiness and prosperity, the renewal of

which they never sought or desired, and firmly resisted.

I have now done with all I propose to say on the subject of

the charter, and will next direct my attention to the new govern-

ment established in its place.

Virginia now became and, as I have already said, ever after

remained, till her separation from the mother country, a crown

or royal colony. And here permit me to advert to one important

distinction between a charter and a royal government. Whatever

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rights are secured by the charter cannot be infringed or altered

by the crown without the consent of the corporation, nor abro-

gated unless by judgment of law founded on proof of some act

of omission or commission, which works a forfeiture or dissolu-

tion of the corporation. But where the government is founded

on royal commission, as that of Virginia was on the dissolution

of the charter, it is a mere creature of the royal will-its bound-

aries, its powers, all its machinery of government, may be modi-

fied, altered, or annulled at his pleasure and discretion. That

the extent of the royal provinces depended upon the pleasure of

the crown, who might alter their boundaries or dismember them

at will, see the case of Johnson vs. McIntosh, 8 Wheat. 543;

1 Story's Corn. 143.

Numerous instances might be adduced where ancient bound-

aries were restricted or enlarged, where established colonies were

divided, and where two were united into one by order of the

king. There was scarcely a province in America at the com-

mencement of the revolution, in regard to which this power had

not been exercised, and in respect to some of them in repeated

instances. The authority of the crown to make these changes

seems never to have been questioned.

From this distinction between a charter and a crown colony

it results that the former has a vested right to its boundaries,

which cannot be changed or abrogated except in one of the

modes already stated; while a royal province has no such right.

It therefore becomes all-important to look into the colonial his-

tory of Virginia, and see what the crown in fact did in respect to

the boundary and limits of the province while it remained a

crown colony. The royal government was established on the

dissolution of the corporation, without specifying any boundaries,

the king's commission merely declaring that the persons to

whom it was addressed were appointed the governor and council

of "the colony and plantation in Virginia." (See Haz. Coll. 189.)

It is a specious argument on the side of Virginia to say that

if no change was made in this respect it is to be presumed the

new government was co-extensive with the limits of the old

charter. And I admit, if the crown of England had owned all

the country embraced within it, the argument would be sound.

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Boundary Line Between Ohio and Virginia.      95

 

But here again the principle of the law of nations returns in all

its force, that the limits of the new government must, of neces-

sity, be restricted to the territorial rights of the crown. The

king could no more set up a government over a country not his

own, and where he had no subjects, than he could grant it away

by charter. The arguments against both are the same. This

rule of the law of nations is founded on the plainest principles of

common sense and of public policy. It results from the authority

already cited to show how a nation may acquire vacant territory

and establish government in it. It results from the law of the

national or high domain, as it is sometimes called, which is held

to be inseparable from the sovereignty. (See Vattel, Book 2,

Chap. 7, Sections 79 to 84, inclusive.) It follows also from the

equality of nations, in respect to which the law is, that "what

is permitted to one nation is permitted to all, and what is not per-

mitted to one is not permitted to any." When the new govern-

ment was established in 1624, the same benighted ignorance

of the interior of the country still prevailed that existed when

the charter was granted, sixteen years before. Neither the River

Ohio or any of its waters were known. Consequently the right-

ful limits of the territory of the crown were still confined to the

sources of the rivers that flow into the Atlantic. There was still

only a feeble settlement, few in numbers-not exceeding eighteen

hundred--confined to tide water, and on the decline. It is there-

fore impossible to imagine that the king, in granting his com-

mission for the government of this little handful of people,

intended, under the name of "the colony and plantation in

Virginia," to extend a government over the vast region between

the Atlantic and Pacific embraced within the terms of the old

charter. If he intended to confine the government to such terri-

tory as in fact belonged to the crown, whatever that might be, it

was all right, but if he intended to embrace more he acted in vio-

lation of the law of nations, which is as obligatory on sovereigns

as on private persons. (See Vattel's preliminary Chap. SEC. 7).

In the absence of proof to the contrary, it is not to be presumed

that he intended to offend against the law of nations by attempt-

ing to set up a government over what did not belong to him, and

where he had no subjects to be governed. If he was ignorant of

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the extent of country between the two seas, and of the actual

extent of his territory, as we know he was, the law of nations

will restrict the operation of his act to what was lawful. This is

my answer to the argument that the new government must

be presumed to have been co-extensive with the limits of the old

charter. In 1632, only eight years after Virginia became a royal

colony, Charles I granted Maryland to Lord Baltimore. In 1662

Charles II granted Carolina to Clarendon, Carteret and others,

and in 1680 he granted Pennsylvania to Wm. Penn. All of these

were within the limits of the old charter. I will now direct your

Honor's attention to an item of history to show how this matter

of the extent of the province was understood here in Virginia in

those times.

In the year 1670, the Lords Commissioners of Foreign Planta-

tions sent out from England a series of inquiries respecting Vir-

ginia, addressed to Sir William Berkeley, who was the governor

of the colony, and had been for thirty years, except a short

interval in Cromwell's time, and who, consequently, must have

known better than any other man what were the limits and

extent of the government over which he had so long presided.

Judge Marshall, in his history, says of Sir William Berkeley

that "he was highly respectable for his rank and abili-

ties. He was still more distinguished by his integrity, by the

mildness of his temper, and the gentleness of his manners."

They were answered by him the next year. These inquiries,

with their answers, will be found in the 2 Vol. of Henning's

Virginia Statutes, page 511 to 517. Mr. Henning prefaces them

with the remark that " a more correct statistical account of

Virginia at that period cannot, perhaps, any where be found.

The answers appear to have been given with great candor,

and were from a man well versed in every thing relating to the

country, having been for many years governor."

To the question, "What are the boundaries and contents

of the land within your government?" he answers: "As for the

boundaries of our land, it was once great, ten degrees in latitude;

but now it has pleased his Majesty to confine us to half a degree.

Knowingly, I speak this; pray God it may be for his Majesty's

service, but I much fear the contrary."

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Boundary Line Between Ohio and Virginia.        97

 

Mr. Henning, in a note to this answer, says that the half

degree of latitude must refer to the eastern boundary on the sea

shore. In this he is doubtless correct, as before that time (1671)

the Carolinas had been granted on the south and Maryland on

the north, both taken out of the old charter limits.

Question. "What rivers, harbors, or roads are there in or

about your government, and of what depth and soundings are

they ?"

Answer. " Rivers we have four, all able safely and sever-

ally to bear and harbor a thousand ships of the greatest

burthen."

And for the names of these four rivers he refers to his

answer to a preceding question, which was, "What castles and

ports are within your government, and how situated?"

Answer. " There are five ports in the country, two in James

River and one in the three other rivers of York, Rappahannock,

and Potomac."

Put these several answers together, and they amount to this:

that Virginia, for her eastern boundary along the sea shore, had

half a degree of latitude; that in the interior she embraced the

country drained by the James, York, Rappahannock, and Potomac

Rivers. It is a perfectly plain and well-defined general descrip-

tion of that part of the present State of Virginia which is situated

to the east of the Allegheny Mountains. This was the Virginia

of that day, as appears by the answer of the man who for near

thirty years had been its governor-a man of ability and in-

tegrity-an answer not casually, carelessly, or incidentally given,

but officially and directly, with care and deliberation, for the

information of that department of the home government which

had charge over the colonies. Its correctness, therefore, cannot

be doubted. When inquired of "what rivers there are in and

about his government?" does he name the Ohio as one of them,

or any of its great tributaries flowing into it from the east, such as

the Monongahela, Kanawha, Kentucky, or Tennessee? He knew

nothing about them, and if he did, then it is plain he did not regard

them as being within his government. There is another omission

in these answers, that shows that it was not then understood, as

is now contended, that the new government embraced all the

Vol. IV-7

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country within the limits of the Virginia Charter. Pennsylvania

was already within its limits. These answers were given nine

years before the grant to William Penn. The fact that he does

not name the Delaware or Susquehanna among the rivers in his

government proves very clearly that he did not regard that

country as part of the then Virginia. Those rivers and their

location were well known in 1671. And if the new government

was understood to embrace all the old charter limits, would he

not have regarded all of the territory as within his government,

and as still being a part of Virginia which had not been granted

away to Lord Baltimore in that quarter? And if so, would he

have forgotten to name the rivers in Pennsylvania in his answer?

Judge Marshall states that in 1622, two years before the colony

of Virginia was put into royal commission, the settlements had

extended along the banks of the James, York, Rappahannock,

and even as far as the Potomac. It is very plain that Governor

Berkeley regarded the Virginia settlements on the coast, and the

country drained by the rivers flowing through the settlements, as

embracing his government and the whole of it. This gives to

the royal commission under which he was acting a reasonable

interpretation; while that now contended for by Virginia, which

would extend his government to the Pacific, is most unreasonable

and extravagant, as well as repugnant to the law of nations,

as has been already shown. But a new state of things was now

shortly to arise-the curtain which had so long hid in darkness

the magnificent valley of the Mississippi and its tributaries was

soon to be drawn aside, and lay it open to the view of the world.

Discoveries were now about to be made which formed the basis

of one of the grandest political conceptions of that century, and

gave rise to some of the greatest events of the next. Two years

after Governor Berkely had given this information to the home

government, the French, whose settlement at Quebec was coeval

with that of the English at Jamestown, penetrated through the

great lakes, and passing over the country from Lake Michigan,

through the Fox and Wisconsin Rivers, entered the Mississippi,

descended it a thousand miles, and returned again into the lakes

through the Illinois River. The report of Joliet, a missionary,

who with a party of men had performed this expedition, excited

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Boundary Line Between Ohio and Virginia.      99

 

the enterprise of La Salle, a French officer, who explored the

valley of the Mississippi, and in 1683 founded Cahokia, Kaskas-

kia, and some other villages, and returning to France laid before

the French Cabinet a scheme of forming an establishment at the

mouth of the Mississippi, and by a connected chain of settle-

ments and military posts to draw a cordon around the English

colonies, which had nowhere penetrated beyond the Allegheny

Mountains. The King of France entered into the views of

La Salle, and took immediate measures to carry them into execu-

tion. This project was viewed for a long time by the English

with little concern, and as little more than a wild chimera;

but the French steadily pursued it for half a century or more,

till they had possessed themselves of all the commanding points

on the waters of the Mississippi and St. Lawrence, with a con-

nected chain of settlements from the Gulf of the St. Lawrence to

the Gulf of Mexico. It was then that the English awoke to a

conviction of the reality that their neighbors had laid the founda-

tion of one of the most magnificent empires the world had ever

seen, and which, in time, would overshadow, if it did not destroy,

the power of Britain on this continent. But at that period the

English had vastly the advantage of the French in the number

of their colonial population. No sooner were the English sensible

of their danger than disputes began to arise between them and

the French about their boundaries, and especially about their

respective rights to the great valley beyond the Allegheny

Mountains.

The French claimed the country beyond the mountains as

the first explorers and first permanent occupiers of it. The

British rested their claim on the ground that they were the first

explorers and first permanent occupiers of the Atlantic coast, and

that all the interior from sea to sea, was but an appendage to that

coast. Judge Marshall, in his history, has stated the claims of

the two parties in these words: "While Great Britain claimed

an indefinite extent to the West in consequence of her possession

of the sea coast, and as appurtenant thereto, France insisted on

confining her to the eastern side of the Apallachian or Allegheny

Mountains, and claimed the whole countries whose waters run

into the Mississippi, in virtue of her right as the first discoverer

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100       Ohio Arch. and His. Society Publications.  [VOL. 4

 

of that river. The delightful region between the summit of those

mountains and the Mississippi was the object for which these two

powerful nations contended; and it soon became apparent that

the sword alone could decide the contest." (1 vol., Marsh.,

352.) It was so decided. The capture of Quebec-the destruc-

tion thereby of the seat of the French power-the cession by

France to England of Canada, and of the whole eastern valley of

the Mississippi, with a small reservation near its mouth, are

great events with which all are familiar. Thus Great Britain, in

1763, acquired title to the country beyond the mountains by

treaty of cession. I hold that that cession was the beginning and

foundation of her title; for the chapter of the law of nations to

which I have already called the attention of the court, pointing

out and prescribing the mode in which nations may acquire title

to vacant and unoccupied territory, shows that the French had

complied with all the conditions that law imposes; while England

had complied with none of them. She had neither discovered

nor occupied the country in dispute, or any part of it. That law

also shows that the claim of England, that her possession of the

Atlantic coast in this part of America carried with it, as appurte-

nant to it, the whole interior of the continent, or any part of it,

beyond the sources of the rivers which discharge themselves into

the sea on that coast, was not even a respectable pretence to title.

The title of France was the same with that by which the United

States now claim the valley of the Columbia River, with this

difference in favor of France, that from the time when she first

planted a colony on the waters of the Mississippi she maintained

uninterrupted possession of the country for near three-quarters

of a century. Ohio holds, what in respect to Oregon is now the

American side of the question. Stoddard, in his history of Louis-

iana, says that prior to the time of the cession to England, the

whole territory on both sides of the Mississippi situated between

the lakes and the Gulf of Mexico, and between the Mexican and

Allegheny Mountains, were under the general name of Louisiana-

that part of it ceded to the English lost the name. (Page 71.)

Assuming, then, that England by that cession for the first time

acquired a valid title to the valley of the Ohio, the question

presents itself, Did the crown attach it to Virginia? This it had

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Boundary Line Between Ohio and Virginia.      101

 

an undoubted right to do or not, at its pleasure. For it is idle to

say that the colony had any power or control over the king in this

matter. From the time Sir William Berkeley, in 1671, gave the

answers already spoken of, down to the treaty of cession by

France in 1763, no alteration that I can find was made by

the crown, or by its authority in the limits of Virginia, unless

the grant of Pennsylvania to William Penn in 1680 be regarded

as such. This brings us down to within thirteen years of the

Declaration of the American Independence. Let us now see

what was done with the ceded territory by the crown during that

interval. The treaty of cession by France bears date of February

10, 1763. On October 10 of that year, the King of England

issued a royal proclamation, which has a most material bearing

on this question. It commences by reciting that by the late

treaty with France, the crown had secured valuable and exten-

sive acquisitions of territory in America; and proceeds to make

known that letters patent had been issued for the establishment

within the countries ceded to the crown of " four distinct and

separate governments styled and called by the names of Quebec,

East Florida, West Florida, and Grenada." It then marks out

the boundaries of these governments, after which it goes on to

annex certain new districts of country to the provinces of New-

foundland, Nova Scotia, and Georgia; but the country between

the Alleghenies and the Mississippi is not included in any of

these. Having thus disposed of his newly acquired dominions,

except the country beyond the mountains, he proceeds to make

a disposition of that. He says that it is just and reasonable, and

essential to his own interest, that the tribes of Indians with

whom he was connected, and who live under his protection,

should not be molested or disturbed in the possession of such

parts of his dominions and territories as had been reserved to

them for their hunting grounds; wherefore, he forbids all gov-

ernors of any of his colonies to make grants for any lands " beyond

the heads or sources of any of the rivers which fall into the

Atlantic from the West or Northwest." And having thus pro-

hibited all grants of lands beyond the heads of the Atlantic

rivers, he proceeds further in these words, "And we do further

declare it to be our royal will and pleasure, for the present,

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as aforesaid, to reserve under our sovereignty, protection, and

dominion, for the use of said Indians, all the land and territories

lying to the westward of the sources of the rivers which fall into

the sea from the West and Northwest, as aforesaid. And we do

strictly forbid, on pain of our displeasure, all our loving subjects

from making any purchases or settlements whatever, or taking

possession of any of the lands above reserved, without our

especial leave and license for that purpose first obtained. And

we do further strictly enjoin and require all persons whatever,

who have either wilfully or inadvertently settled themselves upon

any lands, which not having been ceded to, or purchased by us,

are still reserved to the said Indians, as aforesaid, forthwith to

remove themselves from such settlements."  (See 1 vol., L. U. S.,

446.)

The government, at home, well knew, from the history of

the past, that if the country beyond the mountains, which was

then inhabited by powerful and warlike tribes, was included in

any of the colonial governments, encroachments would be made

upon them by the people, which would be the signal for new

Indian wars. For the security, therefore, of his colonies, as well

as because it was "just and reasonable" that they should have a

country for their hunting grounds free from molestation, he

thought proper not to make a province beyond the mountains,

nor to attach it to any colony; but "but to reserve it under his

own sovereignty, protection, and dominion, for the use of the

Indians." Aud to carry his intentions more effectually into

execution, and to mark more emphatically his determination that

this country so reserved and set apart should not form a part of,

or be under any colonial government, he orders all settlers beyond

the mountains forthwith to retire from the reserved territory. It

is not possible for language to be stronger, or the intention of the

crown to be more distinctly stated. If, in fact, the country be-

yond the mountains was included in the colony of Virginia by

the royal commission of 1624, as is now contended, or if it had

been included in it at any subsequent time, it can not be doubt-

ed it was now severed from the province by this proclamation,

and the province itself confined to the sources of its Atlantic

rivers, that is to say, to the Allegheny Mountains. The right

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Boundary Line Between Ohio and Virginia.      103

 

of the crown to do this, as has been already shown, was unques-

tionable. This proclamation, then, fixes the limits of the col-

ony of Virginia precisely where, and as they were nearly a hun-

dred years before, when Sir William Berkeley gave his answers

on this subject; and precisely where they ever were under the

royal government, so far as I can find. It follows, as a neces-

sary consequence from this proclamation, that if the General

Assembly of Virginia, either with or without the royal sanction

or confirmation, had, prior to that time, extended the lines of

any county over the limits of the reserved country, or if they,

or the chief executive officer of the colonies had made or prom-

ised any unauthorized and unconfirmed grants of land within

the reservation, all such acts of assembly, and all such grants

were, by virtue of this proclamation, effectually put out of ex-

istence, and annulled. And if any act of assembly of Virginia

to extend the limits of any county in the reserved territory were

passed after the date of the proclamation, or if any grant of land

within the reservation was made by the governor or assembly,

without the special license of the crown, all such acts and grants

were not only nullities, but in direct and open violation of the

positive and emphatic prohibitions of the proclamation; and

could not lay any legal foundation for a claim of title to the ter-

ritory after the separation of the colonies from the crown. They

were as nugatory as would be an act of the now territorial legis-

lature or governor of Iowa to extend the limits of its counties

into Oregon, or to grant lands there, without authority of Con-

gress. I can perceive no difference between the two cases. We

must not, therefore, lose sight of the fact that during the whole

time of the royal government, the question is, What did the

crown do or authorize?-not what unauthorized assemblies, offi-

cers, or persons did. And now permit me to inquire, Did the

crown, after this proclamation, ever attach the country reserved

for the Indians under his own dominion, or any part of it, to

the colony of Virginia? If it did, I have not been so fortunate

as to find the evidence of the fact. So far from doing that, a

few years after the date of this proclamation, and just before the

breaking out of the American revolution, the crown had it in

contemplation to establish a new province in that part of the re-

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served territory which lies between the Allegheny Mountains

and the Ohio River and north of the mouth of the Scioto River,

embracing the whole of the present Western Virginia and a part

of the now State of Kentucky. In 1769, negotiations for the estab-

lishment of this colony were opened with the crown, by Thomas

Walpole and a number of associates, residing both in England

and America, and were prosecuted until the terms of the grant

had passed the king's council, and the charter for the colony

had been prepared and was complete, except to affix the royal

seals to the letters patent, when the whole business was sus-

pended by the breaking out of our revolutionary disturbances.

(See Jour. of Cong., May 1, 1782, 4 vol. 23.).

During the pendency of these negotiations, notice of them

was given to the Virginia authorities, in a letter from Lord Hills-

borough, then Secretary of State of Great Britain, dated July

21, 1770. That letter, as appears from the answer, was laid be-

fore the Council of Virginia, and answered by President Nelson

on October 18 of that year. The following are extracts from

the answer of the president and council:

" On the evening of the day your lordship's letter to the

governor was delivered to me, as it contains matters of great

variety and importance, it was read in council, and, together

with the several papers enclosed, it hath been maturely consid-

ered; and I now trouble your lordships with their, as well as my

own, opinion upon the subject of them. We do not presume to

say to whom our gracious sovereign shall grant his vacant lands,

nor do I set myself up as an opponent to Mr. Walpole and his

associates. * * * *

" With respect to the establishment of a new colony, on the

back of Virginia, it is a subject of too great political importance

for me to presume to give an opinion upon. However, permit

me, my lord, to observe, that when that part of the country

shall become sufficiently populated, it may be a wise and pru-

dent measure." (See papers of Cong. in State Dep. Nos. 30,

77; and 5 vol. Rep. Committee, 2d Session 27 Cong. No. 1063,

page 55.)

This letter of the President and Council of Virginia, the re-

sult of their joint deliberations, seems to prove conclusively that

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Boundary Line Between Ohio and Virginia.     105

 

no doubt existed at that time in regard to the boundary of Vir-

ginia. No objection is made that the country about to be

erected into a province was a part of the colony of Virginia, or

that it would circumscribe it within too narrow limits. On the

contrary, it is spoken of not as a country within, but as the

country on the back of Virginia. Mr. Madison, in a letter to

Mr. Jefferson, in 1782, says that this letter will be used in Con-

gress to prove that Virginia had no territory beyond the moun-

tains. (See 1 vol. Madison's papers, page 119.) As already

stated, I cannot find that by any act of the crown, the western

boundary of Virginia was, even during the existence of the col-

onial government, extended beyond the limits prescribed to it by

the proclamation of 1763. And this brings me to the period of

the American revolution. It is here important to understand,

correctly, what bearings the new relations created by the Declar-

ation of Independence had upon the question of right to the

crown lands, and what the parties to that declaration did in

respect to those lands.

All lands on the continent subject to English jurisdiction,

which had not been granted away by the sovereign, were the ad-

mitted property of the crown. When the crown was divested

of the right of soil and jurisdiction, they both, of necessity,

passed to and vested in some other proprietor. No sooner,

therefore, was the war of the revolution fairly opened, and the

Declaration of Independence put forth, than the question to

whom these rights had passed, became an inquiry of the deepest

interest to the whole confederacy. All the States were greatly

straightened for the means of bearing their respective propor-

tions of the expenses of the war. All attached a very great and

probably undue importance to these lands, as a source of rev-

enue, or as a fund on which to obtain credit by their hypotheca-

tion. Two sets of opinion, or, if you please, two parties sprung

up about the right to them. One maintained that the States,

respectively, had succeeded to the crown lands within their

limits. The other, that the confederacy, or nation at large, had

succeeded to the rights and property of the crown, as a common

fund. Many very distinguished men arrayed themselves on

different sides of this question. Mr. Hamilton, for example,

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106       Ohio Arch. and His. Society Publications.  [VOL. 4

 

held the latter opinion, and Mr. Madison the former. Those

States whose colonial limits embraced any considerable amount

of these lands, claimed that they were the property of the State,

and that the right of the crown, by the declaration of Independ-

ence, had passed to the State sovereignties, where the lands

happened to be. Those, on the contrary, who had none of these

lands within their limits, claimed that all the crown lands and

crown property had passed to the nation, on the principle that

what was acquired and conquered by the common effort, blood

and treasure, was, by the law of nations and of justice, the com-

mon property of all. Seven States, embracing within their

limits large bodies of these lands, insisted on the right of the

State sovereignty-the other six strenuously insisted on the

right of the nation, and thus the controversy forthwith found

its way into the Congress of the Confederation, where those

who maintained the rights of the nation demanded that the

property of the crown that might be wrested from it, by their

united efforts, should be applied to maintain the war, or

pay the debts incurred by it. The States which advocated

the right of State sovereignty to these lands evidently had

a powerful motive to extend their territorial limits as far

as possible. The stale and forgotten claims of the provincial

governments to territory were diligently revived, and, as might,

under such circumstances, be expected, were brought forward

as unextinguished and subsisting rights. That controversy is

now forgotten; but the history of the revolution abundantly

proves that nothing, save the war itself, so deeply agitated the

whole country as this question; and no other subjected the

Union to so great peril and hazard.

In 1777, when the question of the confederacy came to be

discussed in Congress, it was found impossible to come to any

agreement on this subject, and the Articles of Confederation

were finally presented to the States for their ratification, leaving

this question unsettled, by omitting to make any regulation about

it. Some of the States, and particularly Maryland, claiming

that these lands were the common property of the nation, refused

to accede to the confederacy for some years, on account of this

omission, insisting strenuously that a provision should be incor-

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Boundary Line Between Ohio and Virginia.     107

 

porated into the Articles of Confederation settling this contro-

versy; and, finally, when at last under the severe pressure of the

war, which rendered united effort indispensably necessary to save

the sinking and waning cause of the revolution, she did come

into the confederacy, it was with a protestation that, by so doing,

she waived no rights to her share of the public domain. Massa-

chusetts and Connecticut set up claims to a large extent of

country beyond the Ohio, and New York claimed the whole ter-

ritory beyond the Allegheny Mountains, as within her jurisdiction.

Virginia claimed the whole, and the confederacy also claimed it

all. So, that for all the country west of the Allegheny Moun-

tains, there were three distinct claimants, and for so much as was

covered by the respective claims of Massachusetts and Connecti-

cut, there were no less than four parties setting up title to the

same crown lands. When Virginia, in 1776, came to form her

State constitution, she embraced within the limits she assigned

to herself all the territory claimed by the confederacy, and by

each of these States. In fixing her boundaries, the constitution,

in the first place, ceded and released to the people of Maryland,

Pennsylvania, North and South Carolina all the territories con-

tained within their charters, and which, as has been already

shown, were within the limits of the Virginia charter of 1609.

It then proceeds to delare that "the western and northern extent

of Virginia shall, in all other respects, stand as fixed by the

charter of King James I, in the year 1609, and by the public

treaty of peace between the courts of Great Britain and France,

in the year 1763." (See 9 vol. Henning Stat., 118.)

Here is an assumption that, till that time, Virginia, by virtue

of the charter of King James to the London Company, had been

the proprietor of North and South Carolina, Maryland and Penn-

sylvania, all of whose territories are thereby ceded, released and

confirmed to them respectively.  Not only was this pretence

now for the first time set up, but this old charter, which never

did convey title to the colony of Virginia, but to a non-resident

company, which had been vacated and dead for more than one

hundred and fifty years-which, during all that time, had been

repudiated by the crown and the colony, and that repudiation

enforced by a law of the province imposing a forfeiture of the

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whole estate of him who should attempt to revive or restore it-

was now found to be a living instrument, and to invest Virginia

with a valid title to the whole body of crown lands beyond the

mountains. This claim of Virginia was remonstrated against by

the legislatures of several of the States, in language of the bit-

terest complaint. There being six states on one side, and seven

on the other, Congress dared not, if it had the power, decide this

disputed question in favor of either party to the controversy. It

was clearly foreseen, a decision in favor of either would break up

the confederation, and ruin the cause of the revolution. To ob-

viate the necessity of deciding this question, resort was had to

compromise, as all other public disputes are settled where an ap-

peal is not taken to the sword.

Virginia, as will be seen hereafter, secured to herself, in a

compromise, a title to the country west of the mountains as far

as the Ohio, though it was strongly remonstrated against by some

of the States, who objected to her retaining so large a share of

the crown lands. As this controversy among the members of

the Union, and in the confederacy, was co-eval with the Declara-

sion of Independence, it is apparent that no act done or law

passed by any State, during the dispute, without the assent of

the claimant of the antagonist right, could in the least benefit

such State, or give any validity to its pretensions.

Any laws, therefore, passed by Virginia, whether in the shape

of constitutions or of ordinary statute laws, setting up exclusive

claims to the country in dispute, could avail her nothing as

against the rights of other States, or of the confederacy. We

are not, therefore, to resort to her constitution, or laws passed

during the controversy, to determine what her rights were. I

put them out of the question, as evidences of right in her behalf.

I will now proceed to the legislative history of the claim of

Virginia during the revolution, and show in what manner it was

finally compromised.

In December, 1778, the Legislature of Maryland adopted a

solemn declaration on the subject of the crown lands, and

addressed certain instructions in conformity to the principles of

that declaration to the members of Congress from that State,

directing them not to accede to the confederation unless an article

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Boundary Line Between Ohio and Virginia.     109

 

or articles should be added thereto, "giving full power to the

United States, in Congress assembled, to ascertain and fix the

western limits of the States claiming to extend to the Mississippi

or South Sea, and expressly reserving or securing to the United

States a right, in common, in and to all the lands to the westward

of the frontier as aforesaid." They also declare, "That the ex-

clusive claim set up by some of the States to the whole western

country by extending their limits to the Mississippi, or South Sea,

is, in their judgment, without any solid foundation, and, they

religiously believe, will, if submitted to, prove ruinous to this

State, and to other States similarly circumstanced, and, in pro-

cess of time, be the means of subverting the confederation."

They accuse Virginia of an ambition, by an unjust extension of

her territory, to build up a State that would overshadow the

other States of the Union. They declare that Virginia had ad-

duced neither argument nor evidence in support of her right,

"deserving a serious refutation." The declaration and instruc-

tions will both be found in the tenth volume of Henning's Vir-

ginia Statutes, page 548 to 556, and the instructions will also be

found entered at large on Journals of Congress of May 21, 1779,

3 vol. 281.

About the same time, the applicants to the British crown for

a colony back of Virginia, as already explained, and who claimed

to own the country, by virtue of a cession of it to them by the

Fort Stanwix treaty of the 5th of November, 1768, petitioned

Congress for a confirmation of their rights, and to be allowed to

form a State between the Allegheny and the Ohio, above the

mouth of the Scioto. (See Journal of Congress of September

14, 1779, 3 vol. 359.) On the 14th of December, 1779, the Legis-

lature of Virginia sent a remonstrance to Congress, in answer to

this petition, and also to the declaration and instructions of Mary-

land, protesting against the jurisdiction of Congress over the

subject, and basing her claim to the western territory on the Vir-

ginia charter and her State constitution. (See 10 Henning's

Statutes, 559. The Fort Stanwix treaty will be found in the ap-

pendix to Butler's History of Kentucky, page 390.)

When Maryland had accused Virginia of ambition, of having

adduced neither argument nor evidence of claim "deserving a

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serious refutation;" when she had solemnly declared that she

would not accede to the confederation, unless this pretension was

abandoned; when the deepest anxiety was felt that Maryland

should accede to the confederation, and put the government into

motion; when she stood out on this point alone when the destiny

of the Republic was suspended on it, and ready to fall; when

Virginia, therefore, had every motive, in reply to Maryland, who

felt herself aggrieved to make such an exhibition of her rights

as would satisfy the complaints of a sister State, and we find her

putting forth on that remonstrance no other foundation of claim

than this charter-have we not a right to presume she had no

other? This declaration of Maryland, it will be noticed, required

all the States setting up claims to the Western country to relin-

quish them to the United States, as the condition of her coming

into the confederacy. In this critical state of things, when

nothing but this controversy prevented the ratification of articles

of confederation-an act so indispensably necessary to the prose-

cution of the war, to the success of the revolution, and the

security of American freedom-the State of New York, which

claimed the whole Western country west of the mountains,

instead of remonstrating, yielded to the request of Maryland,

and, with a magnanimity that entitles her to lasting gratitude,

surrendered up her rights on the altar of her country, by passing

an act in February, 1780, authorizing her delegates in Congress,

by deed of conveyance to the United States, to restrict the

western limit of that State, "as they should judge expedient."

This act bears the honorable and patriotic title of "An act to

facilitate the completion of the articles of confederation, and per-

petual union among the United States of America." (See act at

large in Journal of Congress of March 1, 1781, 3 vol., 582.)

The act of New York, the declaration and instructions of

Maryland, and the remonstrance of Virginia were all referred to

a committee of Congress, who made a report thereon.   On

September 6, 1780, their report was taken up and adopted.

As that report laid the foundation for the compromise that

was finally made of this agitating question, and as showing the

deep concern felt by Congress on this subject (about which I

have already said it dared not make a decision), it is entitled to

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Boundary Line Between Ohio and Virginia.      111

 

especial attention, as an important historical document. The

report was transmitted by Congress to all the States, and, as

adopted, was in these words, viz.:

"That, having duly considered the several matters to them

submitted, they conceived it unnecessary to examine in the merits

or policy of the instructions or declaration of the General As-

sembly of Maryland, or of the remonstrance of the General

Assembly of Virginia, as they involve questions, a discussion of

which was declined on mature consideration, when the articles of

confederation were debated; nor, in the opinion of the committee,

can such questions be now received with any prospect of concilia-

tion; that it appears more advisable to press upon those States

which can remove the embarrassments, respecting the Western

country, a liberal surrender of a portion of their territorial claims,

since they cannot be preserved entire without endangering the

stability of the general confederacy-to remind them how indis-

pensably necessary it is to establish the federal union on a fixed

and permanent basis, and on principles acceptable to all its

respective members-how essential to public credit and confi-

dence, to the support of our army, to the vigor of our councils,

and the success of our measures, to our tranquility at home, our

reputation abroad, to our very existence as a free, sovereign, and

independent people; that they are fully persuaded the wisdom

of the respective legislatures will lead them to a full and impar-

tial consideration of a subject so interesting to the United States,

and so necessary to the happy establishment of the federal nation;

that they are confirmed in these expectations by a review of the

before-mentioned act of the Legislature of New York, submitted

to their consideration; that this act is expressly calculated to

accelerate the federal alliance, by removing, as far as depends on

that State, the impediment arising from the Western country,

and for that purpose to yield up a portion of territorial claim for

the general benefit; whereupon, Resolved, That copies of the

several papers referred to the committee be transmitted, with a

copy of this report, to the legislatures of the several States, and

that it be earnestly recommended to those States who have claims

o the Western country to pass such laws, and give their dele-

gates in Congress such powers, as may effectually remove the

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only obstacle to a final ratification of the articles of confederation;

and that the Legislature of Maryland be earnestly requested to

authorize their delegates in Congress to subscribe the said arti-

cles." (See Journal of Congress of September 6, 1780, 3 vol.,

516; 10 vol. Henning's Statutes, 562.)

This report shows that when the articles of confederation

were debated, Congress had declined any investigation of the

merits of the claims set up by the States to the Western

country; that the same thing was now again done from a belief

that no conciliation could in that way be had-a course founded

upon the evident conviction that no State would yield its claims

to another, and that an expression of opinion in favor of one and

against the other, would only produce increased exasperation

among the States. They, therefore, held up the example of

New York to their imitation, and recommended to them to make

liberal surrender of portions of their claims. And while they

held out this recommendation of compromise to the States

claiming the crown lands, they, at the same time, most earnestly

appealed to Maryland to come forward and complete the ratifica-

tion of the articles of confederation, and thus perfect the union,

and at the same time forever extinguish the hopes of the common

enemy, who, as the history of that day evinces, flattered himself

that a disruption of the States would take place out of this con-

troversy. Maryland, moved by this appeal to her patriotism, in

the month of January following, passed an act (her instructions

and declaration to the contrary notwithstanding), authorizing

her delegates in Congress to accede to the articles of confedera-

tion, but with a protestation that she did not thereby yield any

of her rights to the back country, declaring that she did this

because it had been said that, by her not acceding to the confed-

eration, the common enemy was encouraged to hope that the

union of the sister States would be dissolved, and that the enemy

prosecuted the war "in expectation of an event so disgraceful to

America;" and to destroy forever any apprehension of her friends,

or hope in her enemies, that she would ever again be united to

Great Britain, she came into the confederation, trusting to the

justice of the States laying claim to the back country. The

articles of confederation were accordingly ratified by the Mary-

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Boundary Line Between Ohio and Virginia.     113

 

land delegation. (See Journal of Congress of February 12, 1781,

3 vol., 576, and of March 1, following, 3 vol., 586.)

Virginia, likewise participating in the same sentiment of

patriotism, in the same month (January, 1781,) passed an act

yielding all her right and claim to the country northwest of the

Ohio, but this surrender was clogged with various conditions, of

which one was that the United States should guarantee to her all

of her remaining territory on the southeast side of the river,

which included the present States of Virginia and Kentucky.

The acceptance of this act of cession was urged upon Congress for

more than two years by the Virginia delegation in Congress, with

great perseverance when, in May, 1783, it was finally refused by

Congress, and a resolution respecting the cession was adopted,

of which I shall have occasion to speak hereafter. To a right

understanding of the claim of Virginia, and of the mode in which

it was finally compromised, it is necessary to state briefly in this

connection the grounds on which the refusal of Congress to

accept this act of cession was placed, and the public transactions

that preceded and led to it. When this first act of cession by

Virginia was passed, the New York delegation in Congress had

not yet carried into execution the discretionary power vested in

them by the act of that State. Connecticut had also passed an

act of cession of her claims. New York, it will be remembered,

claimed the whole country beyond the mountains. The claimants

under the Fort Stanwix treaty, who, as already mentioned, were

petitioning Congress for a confirmation of their rights, and to

erect a new state, insisted on their title to all the present Western

Virginia and part of Kentucky. It will thus be perceived, Vir-

ginia required from the United States, as a condition of her ces-

sion of the territory beyond the Ohio River, a guarantee of the

country between the Allegheny and the Ohio, which was claimed

by New York, and by those petitioners. The object of this

guarantee was to protect Virginia against these claims.  The

petition of these claimants, the acts of cession of New York, of

Connecticut, and of Virginia, were all referred to a committee of

Congress to report thereon. As Virginia required this guarantee,

the committee were of opinion that to enable them to decide

whether the confederacy ought to enter into such an engagement,

Vol. IV-8

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114       Ohio Arch. and His. Society Publications.  [VOL. 4

 

it was incumbent on them to examine into the title to the terri-

tory on both sides of the Ohio, so that they might act under-

standingly in the matter. The committee, in their report, which

will be found at large in the Journal of Congress of the 1st of

May, 1782, (see 4 vol., 21), state that they had a meeting with

the agents of the States of New York, Connecticut and Virginia;

that the agents of New York and Connecticut laid before them

" their several claims to the lands said to be contained in their

several States, together with vouchers to support the same; but

the delegates on the part of Virginia declining any elucidation of

their claim either to the lands ceded in the act referred to your

committee, or the lands requested to be guaranteed to the said

State, delivered to your committee the written paper hereto

annexed, and numbered twenty." That paper is signed by the

Virginia delegation in Congress, of which Mr. Madison was one;

and states the reasons why they declined to comply with the re-

quest of the committee to exhibit before them the evidence on

which Virginia vested her claim. It is not printed in the Journal

of Congress; but the original manuscript will be found among

the unpublished papers of the Congress of the Confederation in

the State Department, in book No. 30, page 557. It assigns

several reasons for their declination, the first and most material

of which is in these words, viz.: " The acts of Congress, in com-

pliance with which the above-mentioned cessions (meaning those

referred to the committee) were made, are founded on the sup-

posed inexpediency of discussing the questions of right, and

recommend to the several States having territorial claims in the

Western country a liberal surrender of a portion of these claims

for the benefit of the United States, as the most advisable means

of removing the embarrassments such questions created. To

make these acts of surrender, then, the basis of a discussion of

territorial rights, is a direct contravention of the acts of Congress,

and tends to diminish the weight and efficacy of future recom-

mendations from them to their constituents." I shall hereafter

have occasion to remark that this paper is important to show how

Virginia understood the acts of Congress in compliance with

which the States passed these acts of cession. The committee

goes on to state that they have carefully examined the vouchers

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Boundary Line Between Ohio and Virginia.      115

 

laid before them, and obtained all the information in their power

respecting the state of the lands mentioned in the acts of cession

of New York, Connecticut and Virginia; that they had maturely

considered the same, and that, for reasons that are stated by them

at length, they are of opinion that the jurisdiction of the whole

territory owned by the Six Nations of Indians and their tribu-

taries was vested in New York; that the "colonies of Massachu-

setts, Connecticut, Pennsylvania, Maryland and Virginia had,

from time to time, by their public acts, recognized and admitted

the said Six Nations and their tributaries to be appendant to New

York."   That "the Crown of England had always considered

and treated the said Six Nations and their tributaries, inhabiting

as far north as the forty-fifth degree of north latitude, as ap-

pendant to the government of New York; that, by accepting

this cession (that of New York), the jurisdiction of the whole

Western territory belonging to the Six Nations and their tribu-

taries will be vested in the United States, greatly to the advan-

tage of the Union." Congress, in pursuance to this recommen-

dation, did accept the New York cession. The territory of the

Six Nations of Indians extended on both sides of the Ohio as

far west as the Wabash and Tennessee Rivers, the latter of

which was, at the date of the treaty of Fort Stanwix, called the

Cherokee River. (See Butler's History, appendix, page 392.)

While these cessions were before Congress, and in the hands of

this committee, Mr. Madison, on the 13th of November, 1781,

wrote to Mr. Edmund Pendleton that he believed the Virginia

cession, with the conditions annexed to it, would not be accepted

by Congress; that it seemed to be the opinion in that body that

an acceptance of the cession of New York would give the United

States a title that would be maintainable against all the other

claimants. (1 vol. Madison's papers, page 101.)

As to the Virginia act of cession, the committee say: "That

it appeared to them from the vouchers laid before them, that all

the lands ceded or pretended to be ceded to the United States by

the State of Virginia are within the claims of the States of Massa-

chusetts, Connecticut and New York, being part of the lands

belonging to the Six Nations of Indians and their tributaries."

That "it also appeared that great part of the lands claimed by

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the State of Virginia, and requested to be guaranteed to them by

Congress, is also within the claim of the State of New York,

being also a part of the country of the said Six Nations of Indians

and their tributaries."  They conclude by declaring that "the

conditions annexed to said cession are incompatible with the

honor, interests and peace of the United States, and, therefore,

in the opinion of the committee, altogether inadmissable."

This report was debated in Congress, from time to time, till

the 4th of June, 1783. Repeated efforts, in various forms, were

made by Virginia to obtain the acceptance of this act by Con-

gress, but without success. The letters of Mr. Madison, then a

member of Congress, written during this time, to be found in

the Madison papers, abundantly testify to the deep solicitude and

anxiety felt by him and his colleagues on this important subject.

It ought here to be borne in mind that the States which held

that the crown lands were the property of the nation, strenuously

resisted the acceptance of this act of Virginia, chiefly on the

ground that it permitted that State to retain the country between

the mountains and the Ohio River, which they denied Virginia

had any title to. And it certainly is very difficult to show that

she had any more title to that than to the country beyond the

river. Various votes had been taken in Congress, which were

regarded as equivalent to the rejection of this act of cession,

when finally, on the 4th of June, 1783, on motion of Mr. Bland,

of Virginia, so much of the former report as related to that act

was referred to a committee of five, of whom Mr. Madison was

one, and Mr. Ellsworth, of Connecticut, afterwards Chief Justice

of the Supreme Court of the United States, was another. Im-

mediately on this reference to the last mentioned committee, the

States which had opposed the acceptance of the Virginia act of

cession, and looked upon it as rejected by Congress, took it up

anew. The Legislature of New Jersey, in particular, which had

constantly protested against permitting Virginia to retain the ter-

ritory between the mountains and the Ohio, ten days only after

this last reference, passed new resolutions on the subject. They

commence with expressing their surprise that Congress, after its

former proceedings, should again have taken up the subject of

the Virginia act of cession, and, setting forth their objections to

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Boundary Line Between Ohio and Virginia.     117

 

it, they conclude by saying: "We cannot be silent while view-

ing one State aggrandizing herself by the unjust detention of that

property which has been acquired by the common blood and

treasure of the whole, and which, on every principle of reason

and justice, is vested in Congress for the use and general benefit

of the Union they represent. They doubt not the disposition of

Congress to redress every grievance that may be laid before them,

and are of opinion there can be no greater cause of complaint,

nor more just reasons for redress than in the present case. They

do, therefore, express their dissatisfaction with the cession of

western territory made by the State of Virginia, in January,

1781, as being far short of affording that justice which is equally

due to the United States at large, and request that Congress will

not accept of the said cession; but that they will press upon the

said State to make a more liberal surrender of that territory of

which they claim so boundless a proportion." (See Journal of

Congress, June 20, 1783, 4 vol. 231.)

The last committee made a report, which was finally acted

upon and adopted on the 13th of September, 1783. (See Journal

of that day, 4 vol. 265.)

As was the case when the articles of confederation were dis-

cussed, and again when the recommendatory resolution of the

6th of September, 1780, was adopted, already stated at large, so

now the committee, in pursuance of the settled policy then

decided upon, abstained from making any inquiry into the title

of Virginia to any part of the country on either side of the Ohio,

but took up the several conditions contained in the act of cession,

giving to each of them a distinct consideration, approving some

and rejecting others, and laying down the terms on which they

would recommend to Virginia to make, and the United States to

accept a cession. On the subject of the last condition, which

was the proposed guarantee of the country on the south-east of

the Ohio, the committee say: "As to the last condition, your

committee are of the opinion that Congress cannot agree to

guarantee to the Commonwealth of Virginia the land described

in the said condition, without entering into a discussion of the

right of Virginia to the said land, and that, by the acts of

Congress, it appears to have been their intention, which the com-

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mittee cannot but approve, to avoid all discussion of the territorial

rights of individual States, and only to recommend and accept a

cession of their claims, whatsoever they might be, to vacant terri-

tory. Your committee conceive this condition of a guarantee to

be either unnecessary or unreasonable, inasmuch as, if the land

above mentioned is really the property of that State, there is no

reason or consideration for such guarantee. Your committee,

therefore, upon the whole, recommend that if the Legislature of

Virginia make a cession conformable to this report, Congress

accept such cession." This report, after its adoption, was trans-

mitted to Virginia, whose Legislature, on the 20th of the next

month (October, 1783), passed an act of cession of the country

beyond the Ohio, in conformity to the terms thus recommended

by Congress, which was accepted by the United States on the 1st

of March, 1784. (See Journal of Congress of that day, 4 Vol. 342;

1 vol. Laws U. S., 472.) Thus, at length, was terminated, peace-

fully and happily, this long agitated and perilous controversy.

This second act of cession begins by referring to the last mentioned

report, and accedes to the terms recommended by Congress.

And thus that report, and all the acts of Congress referred to in

that report, as evidencing the policy Congress adopted and then

adhered to in regard to the claims of the States, are, in fact, made

a part of the act of cession, by this reference, as much as though

they were recited at large in the act, and are to be regarded

as part of it, in fixing its interpretation and legal effect. The

result of the whole arrangement was that Virginia surrendered

up the country beyond the Ohio to the confederacy, and the

United States left Virginia in the quiet possession of the country

between the mountains and the river, to which they set up a claim

in their own right, and as assignees of New York. It is thus an

undeniable fact that a transfer of Virginia was accepted, for

whatever it might be, good or bad, without examination by the

United States into its merits, or production of proof of its

validity by Virginia, which, by the express understanding of

both parties, was waived.

This closes the legislative and documentary history of the title

of Virginia; and, keeping it in view, we are now prepared to

present, in an intelligible form, the distinct question upon which

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Boundary Line Between Ohio and Virginia.      119

 

the claim now set up by Virginia to the whole river must turn.

The principle of the law of nations already adverted to, as laid

down by the Supreme Court of the United States, in case of

Hanley's lessee vs. Anthony (5. Wheat., 379), is "that where a

great river is a boundary between two nations or States, if the

original property is in neither, each holds to the middle of the

stream; but when one State is the original proprietor, and grants

the territory on one side only, it retains the river within its

domain, and the newly erected State extends to the river only."

I have already, by reference to the law of nations, shown that it

leans strongly in favor of an equitable partition of the river, and

will hold the nation or State that sets up an exclusive right to

the whole to clear and conclusive proof of title. Virginia sets

up such a claim, and, of course, takes upon herself the burthen

of proving that she had a clear right to the country on both

sides of the Ohio. And here the question presents itself, has

Virginia made, or can she make, clear and conclusive proof that,

prior to the act of cession, she had title to both or to either side

of the river? I shall not repeat what I have already said on that

head; but there is strong contemporary inferential proof that

Virginia had no title or claim except what was founded on the

Virginia charter of 1609, to which I will briefly advert. It will

be recollected that, as early as 1778, the claims of the State of

Virginia to the western country had been vigorously assailed

in Congress, and by other States of the confederacy. Her pre-

tensions had been denounced as unfounded, unjust, and am-

bitious. Against this denunciation, Virginia had remonstrated

to Congress as early as 1779. All this was calculated to put her

people, and especially her public authorities, upon inquiry and

examination into the evidences and proofs of her title to the

country in dispute. Nor was she wanting in this duty to herself.

When the committee to which the first Virginia act of cession

was just referred, with those of New York and Connecticut,

made their report in favor of the acceptance of the act of New

York, and the rejection of that of Virginia, as already explained,

Mr. Madison wrote to Mr. Jefferson, giving him a detailed

account of the proceedings of the committee, and of the course

pursued by the Virginia delegation in Congress, and urged him

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to collect the documentary evidence necessary to enable them to

meet the objections raised against the title of Virginia. (1 vol.

Madison papers, 106.) It appears from that and other letters in

the same volume, that other distinguished gentlemen were ap-

plied to for similar aid. Three months later, he again writes to

Mr. Jefferson a very urgent letter on this subject (1 vol. Madison

papers, 119), which commences with this passage: " I entreat that

you will not suffer the chance of a speedy and final determination

of the territorial question by Congress, to effect your purpose of

tracing the title of Virginia to her claims."  He tells him

that in every event it is proper to be armed with every argu-

ment and document that can vindicate her title; and informs

him that in all probability, in addition to her own claims of title,

the confederation would fortify herself with the title of New

York, which State, he says, set up a claim to all the territory in

dispute. He then proceeds to inform him in detail by what

arguments the title of New York will be supported, and that of

Virginia opposed. As already mentioned, he, about the same

time, in a letter to Mr. Pendleton (1 vol., 101), says it seemed

to be the prevailing opinion that the cession of New York would

give Congress a title which would be maintainable against all

other claimants. It is true that Mr. Madison, in all these letters,

expresses confidence in the validity of the Virginia claim. But

it is equally certain that, though this controversy was kept up

for four or five years, with great excitement about it both in

Congress and in the States, till the passage of the compromise

resolution of September 13, 1783, the Virginia delegation in

Congress were all that time at a loss to know on what ground

other than that of the old charter to rest her claim to the

country. The Madison papers do not show that, by their own

researches or those of their friends, the Virginia delegation were

ever able to exhibit any other documentary proof of title. Nor

can I discover, on looking into Mr. Jefferson's correspondence,

that he was ever able to trace out a title for Virginia, or that he

or others engaged in the same work, found anything of any

value to support it, not before well known to the public. Nor

has the learned counsel for the commonwealth now been able to

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exhibit any new proof of title not familiar to all at the period of

the controversy.

I think from what has been said, it may now confidently be

asserted that Virginia had no title to the country west of the

Allegheny Mountains, certainly no such clear and conclusive

proof of title as the law of nations require her to make, as the

sole condition on which she can sustain as against Ohio, an

exclusive right to the whole river. But, here, it may be, and

has been said, that the deed of cession admits title in the

grantor-that the United States, and all claiming under them,

are estopped from going behind it to inquire into the original

right. This objection places a great public question upon the

narrow basis of a mere legal technicality. When refuge is taken

behind it, what was said by the Supreme Court, in the case of

Handley's lessee vs. Anthony, already cited, may be applied

with much force, that "in great questions which concern the

boundaries of States, where great national boundaries are estab-

lished in general terms, with a view to public convenience and the

avoidance of controversy, we think the great object, where it can

be distinctly perceived, ought not to be defeated by those technical

perplexities, which may sometimes influence contracts between

individuals." But if it be admitted that the doctrine of estoppels

is recognized by the law of nations, as applicable to a treaty,

deed, or act of cession by one independent sovereignty to another,

still it would not be applicable to this deed of cession. If this

were a mere naked deed of cession, or conveyance of the country,

without reference to any extrinsic or antecedent fact, the question

would fairly and fully arise whether the law would permit either

party to resort to the antecedent or extrinsic facts which induced

one party to make and the other to accept the deed for the pur-

pose of putting a construction on it. But if the deed contains

recitals of facts or motives, or reference to them, then the facts

thus recited or referred to, become a part of the deed, and we

have an undoubted right to look into the facts to which reference

is made, and give them the same weight and effect as though the

matter referred to were incorporated into the instrument at large.

Now, this deed of cession is of the latter class, and begins by recit-

ing in full the act of assembly of Virginia of the 20th of October,

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1783, which empowered her delegates in Congress to execute the

deed. That act is not only a part of the deed, but it is the sole

authority on which the validity of the deed rests. It is what is

commonly called the power of attorney to make the conveyance.

This act of assembly thus recited at large in the deed begins by

a recital of facts, and of the motives that induced the Legislature

to pass it. And for its motives, it refers to certain public acts or

transactions, which being referred to, we have a right to look

into, and treat as a part of the deed. The first public act thus

referred to is the resolution of Congress of September 6, 1780,

recommending to the States setting up claims to vacant lands to

make cessions of them to the confederacy.

I have already shown that when that resolution was passed,

as well as prior to that time when the articles of confederation

were debated, Congress decided that they would not inquire into

the validity of the claim of any State; but that instead of such

inquiry, they proposed the States should, by way of compromise,

one and all convey their claims, such as they might be, to the

confederacy, and in that way quiet the title and settle the con-

troversy among the States about the crown lands. I have also

shown that it was on that express ground that, two years after-

wards, Virginia declined to exhibit before a committee of Con-

gress her title to the country on the east side of the Ohio, which,

by her first act of cession, she required Congress to guarantee to

her, insisting that the resolution of 1780, in compliance with

which she passed her first, as well as second act of cession, was

founded on the very basis that no inquiry into the right or title

of any State was to be made. The committee, on the contrary,

thought that case formed an exception to this understanding,

and that if Virginia required a guarantee of country which she

did not cede, that Congress ought to look into her title before

becoming responsible for it. In the next place, the Virginia act,

recited in the deed, refers to the proceeding of Congress of Sep-

tember 13, 1783, which thus becomes in law a part also of the

deed. That proceeding, or act of Congress, as it is called in the

Virginia law, was nothing more nor less than a report of Con-

gress, which has been already presented at large. It was a

report coming from a committee, of which Mr. Madison, we have

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seen, was one, upon the first Virginia act of cession, rejecting it,

and explaining to Virginia the reasons for not accepting that act,

and setting forth the terms on which the confederacy would

accept a cession from that State.  The report reiterates and

declares what the delegates of Virginia had before insisted upon

as a basis of a compromise, "that by the acts of Congress, it

appears to have been their intention, which the committee cannot

but approve, to avoid all discussion of territorial rights of indi-

vidual States, and only to recommend and accept a cession of

their claims, whatsoever they might be, to vacant territory." The

act of Virginia then goes on to declare that she passed it in

conformity to this recommendation of Congress. In view of

these facts, thus made, by recitals and references, a part of the

deed of cession, how is it possible for Virginia to say that Con-

gress, by accepting the deed of cession, admitted her title to be

good? Might not the same claim, with equal propriety, be set

up in favor of the cession of New York, Massachusetts, and

Connecticut, who also became parties to this same compromise,

and ceded their claims in response to the same resolutions of

Congress? The cession of all put together make one great

result-one whole-one compromise of conflicting pretensions.

It may be further added that, as the last act of cession refers to

the report of Congress of 1783 to show what motives governed

Virginia in passing it, and as that report, in its turn, refers in gen-

eral terms to the prior acts of Congress on that subject, to show

their intention, the whole body of the prior proceedings of Con-

gress are thus, in fact, laid open to our examination, and we have

a right to look into them all in giving to the deed of Virginia

its legal effect. I shall hereafter state what the law of nations

defines a compromise to be. I shall, for the present, assume that

the cession of Virginia, and of the other States, was the result of

a compromise, in which, in accepting the cession, the validity of

the title of no one of the ceding States was admitted, or intended to

be admitted, by the confederacy; but the contrary was expressly

declared and understood as one of the terms and conditions of

the arrangement. It follows from this, that in all controversies

about the title to the country that was in dispute (being all west

of the Alleghenies), we are bound either to look to this compro-

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mise as the origin and basis of the title, or, if not, then we are

at liberty to go back into the prior title, without regard to the

cession. I have already shown that Virginia had no title prior

to that time, and will not repeat what has been said on that sub-

ject. In my opinion, the compromise is the foundation of the

title, and both parties are precluded from going back of it to in-

quire into the prior claim. The deed of cession is to have a legal

effect and operation, according to the terms of the compromise,

and the understanding of the parties at the time it was entered

into. Both parties to the cession claimed to own the country on

both sides of the Ohio. Both expressly agreed that the title of

neither should be inquired into by the other--that no decision

should be made or opinion expressed by either as to the goodness

of the title of the other; that the dispute should be settled by

leaving Virginia in possession of the territory on one side of the

Ohio, the United States taking that on the other side of the

river. Before that time both set up a claim, but neither had an

admitted title to either side of the river. In this view of it, the

title to each side of the river is co-eval with the other. Neither

can assert a prior title, and, as the parties then agreed they would

not look into the validity of the title of either, both are bound

by the agreement, and must live by it. If the title on each side

of the river be co-eval, I will show hereafter where the law of

nations will fix the boundary, after having shown what that law

defines a compromise to be. "Compromise is a method of bring-

ing disputes to a peaceable termination. It is an agreement by

which, without precisely deciding on the justice of the jarring

pretensions, the parties recede on both sides, and determine what

share each shall have of the thing in dispute, or agree to give it

entirely to one of the claimants on condition of certain indemni-

fications granted to the other." (Vattel's Law of Nations, book

2, chap. 18, sec. 327.)

The first of the two modes of compromise here stated by

Vattel describes with perfect accuracy the condition of the parties

to this dispute, and their manner of settling it.  The confed-

eracy, in its own right and as the grantee of New York, claimed

the whole country west of the mountains on both sides of the

Ohio. Virginia claimed the same. "Without precisely deciding

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Boundary Line Between Ohio and Virginia.      125

 

on the justice of their jarring pretensions, the parties recede on

both sides, and determine what share each shall have of the thing

in dispute." Where indeterminate rights are thus rendered defi-

nite, and a dispute afterward arises about them, common sense

and the plainest necessity dictate that both parties must be

referred back to the compromise, that is to say, to the time when

the right was rendered definite, and no further-to go back of it

is to undo the compromise, render it a nullity, and again involve

the parties in the very difficulty which it was the aim and end of

the compromise to avoid. Mr Madison was for a long time

earnestly engaged in endeavoring to bring about a compromise

of this dangerous dispute, and the country owes him an infinite

debt of gratitude for his labors in so good a cause. This is

evidenced not merely by his course in Congress, but the Madison

papers, show that he had it near to his heart, and remained in

Congress to effect it.  In a letter to Mr. Edmund Randolph,

written on the 10th of September, 1782, he says, " Every review

I take of the western territory produces fresh conviction that it

is the true policy of Virginia, as well as of the United States, to

bring the dispute to a friendly compromise."  It was the next

year terminated in the mode he desired. The application to this

state of facts of the principle already so fully established that

" where a great river is the boundary between two nations or

States, if the original property is in neither, and there be no con-

vention respecting it, each hold to the middle of the stream," is

both easy and unavoidable. It is also just and equitable, pro-

moting the convenience of all, and doing injury to none. I will

now bring this long argument to a conclusion, by remarking that

the channel of the river must have been understood to be the

boundary at the time of the arrangement. One of the very first,

and, immeasurably, the most important act ever passed by Con-

gress respecting the ceded territory puts a practical construc-

tion on the cession wholly irreconcilable with the claim now set

up by Virginia to the whole river. In the celebrated ordinance

of 1787 for the erection of a government in the territory north-

west of the Ohio, it is not merely declared, but made an article

of compact between the people of the territory and the people of

the United States, irrevocable except by common consent, that

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"the navigable waters leading into the Mississippi and St. Law-

rence, and other carrying places between the same, shall be com-

mon highways, and forever free, as well to the inhabitants of said

territory as to the citizens of the United States, and those of any

other States that may be admitted into the confederacy, without

tax, impost, or duty therefor." (1 vol. Laws U. S., 479.)

It is plain that ordinance was intended to embrace the Ohio.

It has always been so understood. Men of tender consciences,

and having constitutional scruples, have in these latter days voted

appropriations to clear out and improve the navigation of the

Ohio, on the express ground that this compact had imposed a

duty on Congress, and given it a power over the river which it

does not possess over rivers not embraced by the ordinance. In-

deed, it is the principal river included within the terms "the

navigable waters leading into the Mississippi." If the Ohio does,

in fact, belong exclusively to Virginia, then it is plain this com-

pact, so far as that great river is concerned, is as much a nullity

as though the ordinance had undertaken to regulate the naviga-

tion of the James, or any other river within the admitted terri-

tory of Virginia. Considering the very great importance of this

regulation, and the care with which it is inserted into the ordi-

nance, not as an ordinary act of legislation merely, but put, on

account of its weight and consequence, above all future repeal or

alteration by Congress alone, it is not a little remarkable, if Vir-

ginia owned the river, that this ordinance was reported by a

member from Virginia, and came from a committee of five, of

whom two were from that State, that, on its passage, the name

of every member from Virginia is found recorded in favor of it,

and, indeed, of the whole Congress, with one solitary dissenting

vote from the State of New York. If, at that early day, it had

been understood Virginia owned the whole river, that ordinance

could not have passed with such extraordinary unanimity, much

less with the entire vote of Virginia for it. I now leave the case,

with a firm conviction that the claim now set up in behalf of Vir-

ginia cannot be maintained; that it is not for her interest it

should be; that it would be of no benefit to her, and of much

injury to Ohio, and with a like firm persuasion that this en-

lightened court will render a decision according to the law of the

land, and such as shall best promote the peace, harmony, con-

venience and common welfare of the people of both communities.

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