the title to the country beyond the Ohio, and

The principle here stated shows clearly its true history, had been put into the record that the decision rested wholly on the asin that case, so as to bring it within the reach {sumption that Virginia was the original proof the Court, and call for a decision upon it, {prietor of the ceded Country, and that if it the judgment of the Court must have been, was erroneous, as I shall endeavor to prove it that the middle of the channel is the bounda-was, then the middle of the river is the bounry. All the parties to that case, both the dary. The learned Counsel for Virginia Court and bar assumed, without any histori- maintains that the bank of the river, as contracal investigation in the Court below, that distinguished from the water edge at low waVirginia was the original proprietor of theter is the boundary. This distinction becountry beyond the Ohio River; and that the tween the bank or shore and the water which quostion of boundary was to be decided by composes the river at that stage which the the laws of Virginia, and by her deed of cession Court denominates the "permanent river” did to the United States. The case came up to not escape the attention of the Supreme the Supreme Court of the United States made Court in the case on which I am now comup on this hypothesis, and in that Court its menting, Judge Marshall bestowed especial decision was predicated upon the record, as care upon it. He begins by citing the lanit was presented to it. Proceeding on this guage of the deed of cession. He says, "she assumption, it was by a powerful analysis of"(Virginia) conveys all her right to the terri..those laws and of the deed of cession, for{"ry situate lying and being to the North which Chief Justice Marshall was so emin-West of the river Ohio." And this territory ently distinguished, that he came to the con- " according to express stipulation is to be clusion, that the low water line of the river" laid off into independent States. These was the boundary. In this way, the case States then are to have the river itself,wherewas presented in the best possible aspect for ever that may be for their boundary. This a decision the most favorable to the claims is a natural boundary and in establishing it of Virginia. The erroneous assumption on Virginia must have had in view the conwhich the precise décision turned, therefore,venience of the future population of the by no means weakens, but in fact strength-" Country." 5 Wheaton 379. And further on ens the weight of the authority of that case at page 380 he says, "Wherever the river as against the States of Virginia and Ken-" is a boundary between States, it is the main, tucky. Having assumed that Virginia had" the permanent river, which constitutes that the original title to the country beyond the "boundary; and the mind will find itself emOhio prior to the deed of cession, the learned "barrassed with insurmountable difficulties Judge proceeds to lay down the foundation" in attempting to draw any other line than principle on which the decision rested, in the the low water mark." In the last sentence following words, viz: "When a great river is of the opinion, he makes a direct and express "the boundary between two nations or States, distinction between a river and its shore and "if the original property is in neither, and says the States beyond the Ohio were to own "there be no convention respecting it, each the shore of the river. He says "the shores "holds to the middle of the stream. But when, of a river border on the water's edge." 5. as in this case, one State is the original Wheat. 385. In other words, the one is land "proprietor, and grants the territory on one and the other water. If therefore you have "side only, it retains the river within its own a boundary by the river it is a water line of 'domain, and the newly created State ex-division-if by the shore, it is a land boundary "tends to the river only. The river, however, as contradistinguished from a water line, and "is the boundary." 5 Wheat. 379. in that case, the top of the bank would, pro

-66

bably, be the boundary line. In the passages was executed; and which eventually, in the

cited and throughout the opinion of the Court, fullness and maturity of their development, the distinction is kept up between the river will contain a greater number of people than and its bank-between a water line of boun- the whole Union at this day. Every thing, dary and a line on dry land. It maintains there, is yet in its infancy. But already that the deed of cession granted the Country {towns and cities have every where sprung up "to the North West of the River Ohio."- on the river shore, and on all the lines of inThat is to say to the North West of the per-terior communication with it. That river is manent 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 accumulated surplus product of the active inthese 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.

already the channel and thoroughfare of a surprisingly active internal commerce. On its shore, on the identical ground that is now in dispute, must be annually laid down, the

{dustry 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 But that eminent Judge did not content him- { forever be done on this very disputed shore. self with resting on the strict meaning and Upon it also must be landed, for distribution 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 concern the boundaries of "States, where great natural boundaries are "established 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 toter of vital moment, that it should be known "be defeated by those technical perplexities "which may sometimes influence contracts "between individuals."

66

46

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 innumerable other water craft, 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 mat

with certainty by what law these people are to be governed, and their contracts regulated, while there in the transaction of their daily With the permission of your Honors, I will business? Can any one fail to perceive the now make a practical application of the lib- absolute necessity of a strong and effective eral and enlightened views of the Court. In local police, and a code of police laws to the short interval of time that has elapsed control and keep in subjection the loose since the date of the deed of cession, three and disorderly masses of men thus congregreat States have risen up on the Northgated together from the most distant parts of Western shore of the river, whose aggregate the country? Can it promote the convepopulation, even now, exceeds that of the nience of the people of Ohio, or of those who whole confederacy when the deed of cession come there to do business, that the wharves