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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 territhose 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 decision 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 in that case, the top of the bank would, pro



"is the boundary." 5 Wheat. 379.


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

fullness and maturity of their development, will contain a greater number of people than the whole Union at this day. Every thing, 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 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 accumulated surplus product of the active in{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 in the interior, all those return supplies of further, and places his interpretation of it on merchandise and commodities which minister broad and enlightened views of public policy. to the wants and comforts of this great popHe remarks that Virginia provided for the {ulation. Look, for example, at the City of erection of independent States in the ceded Cincinnati, and picture in the imagination, Territory, and that in fixing their boundary, what may be seen there any day in the year— she "must have had in view the convenience her lovely port crowded with steamers, and "of the future population of the country.' almost innumerable other water craft, with And on this topic he also adds, "in great their rich and varied cargoes-her wharves questions which concern the boundaries of crowded with busy, bustling people, and with "States, where great natural boundaries are every variety of merchandise-where con"established in general terms, with a view tracts are making, and property changing "to public convenience and the avoidance of hands, almost every minute of the day-all " controversy, we think the great object, where on this disputed ground; and is it not a mat"it can be distinctly perceived, ought not to {ter of vital moment, that it should be known "be defeated by those technical perplexities with certainty by what law these people are "which may sometimes influence contracts to be governed, and their contracts regulated, "between individuals." 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

With the permission of your Honors, I will now make a practical 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 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

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and shores of the river, and the water-craft they fondly hope to attain, will render índís

lying there, shall be governed by such police pensable to their comfort and prosperity, that laws as Kentucky might choose to make? you should have the power, at your will, to That the contracts made at the Ohio shore, stop them all? Like all unfit, and misplaced and on the boats attached to it, shall be gov-power, it would be a curse both to you and erned by the laws of Kentucky or Virginia, of to us, if you had it. It is true, that if you which they know nothing, and were not even could make a final decision of this question thought of when they entered into them? in your favor, and should do it, you would, That the citizens of Ohio, while thus enga- for the moment, quicken into life, a wild spirit ged, should be there arrested and carried into of speculation. For who can doubt but that imprisonment by the officers of the opposite so soon, and as fast as steam would carry States, their contracts subjected to, and them to its shores, multitudes of adventurers their persons punished by laws made by men would rush there to lay down your land warin whose election they have had no voice, and { rants upon the river shore between high and over whom they can exercise no control or low water mark on the whole line of the borinfluence? Or would not these things, in any der States! I solemnly declare as a citizen community whatever, be justly regarded as of Ohio, that if you were to offer us this powan intolerable grievance? Go into the City er over the Virginia shore, I would not take of Cincinnati, or into any town on the Ohio, it as a gift.—I would not accept a power that and ask its business inhabitants, what part of would bring with it perpetual annoyance, colall their public streets, or places of resort, lision, and never-ending controversies bethey could least afford to give up to the con- tween those who are neighbors and whose trol of the State on the opposite bank, and interest it is, and ever must be, to be friends. they would tell, with one united voice, that the wharf on the river, and the shore of the river, were the last that they could surrender. And of what use, let me enquire, 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 whether a regard to your own policy and consays Virginia must have had in view in pro-venience would not admonish you to abstain viding for the erection of New States on the from such a decision? I shall endeavor to Ohio? Is it consistent with this statesman- show that place the actual boundary where like and benevolent intention of Virginia, you may, at the top of the bank—at the that if the people of the new States have oc- medium stage of the water-at low water casion to erect a wharf at the water edge-mark--or in the middle of the channel,—and to carry a rail way to the river-to lay down Ohio has a right to do on the Virginia shore, a suction pump to draw up supplies of water whatever Virginia has a right to do on the for their steam machinery, or for the daily Ohio side. When Virginia passed her act of wants of the inhabitants of their towns-in Assembly in December 1789, to enable the a word, to approach the water and use it for people of Kentucky to form a Constitution a thousand new and nameless purposes, which and become a State, she proposed to Kenthe fast multiplying pursuits and wants of tucky certain conditions for her assent, which society, in the progress of that civilization were to be binding on both parties. One of

Before passing from this topic to the next head that I propose to discuss, permit me, to enquire, 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,

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