request of the United States, authorized their delegates in the Congress of the United States, by proper deed, to convey, transfer, and assign to the United States in Congress assembled for the benefit of said States, Virginia inclusive, all right, title, and interest, as well of soil as of jurisdiction, which Virginia had to the territory within her limits as defined by the letters patent of May 23, 1609, and lying to the north-west of the Ohio, subject to certain limitations and conditions in the act prescribed and specified by the United States.1

§ 112. On the 13th day of July, 1787, Congress passed an ordinance for the government of the North-western Territory. The 4th article of that ordinance provides that "The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and for ever free, as well to the inhabitants of the said Territory, as to the citizens of the United States, and those of any other States that may hereafter come into the Confederacy, without any tax, impost, or duty therefor." These articles contained in the ordinance, though they were nothing more than a declaration of rights that might be denied by the people of the new States to be formed, yet were to serve as a guide to the future legislation of the country.

§ 113. On the 24th of April, 1802, Georgia ceded all her rights west of the Chattahoochee to the United States; and one of the articles of cession provided that the ordinance of 1787, in all its parts relating to the soil, should apply to the South-west Territory.

§ 114. We thus find that the ownership of the soil of all the territory in the North-west and South-west, embracing nearly all the territory within the Union lying in the Mississippi Valley at that time, was transferred to the Union by the States, and that the deeds of cession and fundamental law by which

'See Rev. Code of Virginia of 1819.

the Territories were organized, provided for the free navigation of the Mississippi, and that the character of navigability secured the river by the treaties of 1763 and 1783 was further sanctioned by the solemn compact of the Union with the ceding States.

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§ 115. But the Mississippi River, aptly called a great inland sea" by Calhoun, continued to be an object of solicitude to foreign nations, as we shall proceed to show. In the 3d article of the "Jay treaty," as it is called, signed at London on the 19th of November, 1794, it is stipulated "that the Mississippi River shall, according to the treaty of peace, be entirely open to both parties; and it is further agreed that all the ports and places on its eastern side, to whichsoever of the parties belonging, may freely be resorted to and used by the parties, in as ample a manner as any of the Atlantic ports or places of the United States, or any of the ports or places of his Majesty in Great Britain." 1

§ 116. By the 4th article of the treaty with Spain, dated 27th October, 1795, "it is agreed that the western boundary of the United States which separates them from the Spanish colony of Louisiana (acquired by secret treaty from France in 1763, and embracing the entire Mississippi Valley west of the river) is in the middle channel or bed of the river Mississippi from the northern boundary of the said States to the completion of the thirty-first degree of latitude north of the equator; and his Catholic Majesty has likewise agreed that the navigation of the said river in its whole breadth from its source to the ocean, shall be free only to his subjects and the citizens of the United States, unless he should extend this privilege to the subjects of other powers by special convention." 2

§ 117. By the treaty for the cession of Louisiana with France, to whom, by the secret treaty of St. Idelfonso, Louisiana had been re-ceded by Spain, dated at Paris, 30th

1 8 Stats. at Large, pp. 117, 118. 28 Stats. at Large, p. 140.

April, 1803, the Mississippi River was thrown entirely within the jurisdiction of the United States; but it was stipulated in the 7th article, that the ships of France and the ships of Spain, coming direct from those countries, should, for twelve years, be admitted into the ports of New Orleans, and all other legal ports of entry within the ceded territory, in the same manner as the ships of the United States.1

§ 118. To the treaties of 1763, France and Great Britain were parties; to the treaty of 1783, France, Great Britain, and the United States; to the treaty of 1794, Great Britain and the United States; to the treaty of 1795, the United States and Spain; to the treaty of 1803, the United States and France were parties; and all these powers recognized the navigability of the Mississippi directly. Thus we see that the Mississippi River has been an object of solicitude and negotiation with the maritime powers, and has been stamped by various treaties with the characteristics of an inland sea; and its ports and marts are spoken of in the same sense as those on the Atlantic coast, or bays and salt-water streams.

§ 119. The legislation of Congress, as we have already seen in this chapter, has been uniform whenever new States bordering on the Mississippi asked for admission into the Union, to secure the free navigation of the river; and in the constitutions of some of these States, as the reader will have noticed, this navigation is secured in express words.

§ 120. Can it, then, be said, in view of all these facts,in view of the grandeur and magnificence of the river, the character stamped upon it by the laws of nature, the various treaties made in reference to it by the great maritime powers of the globe, the solemn compacts made by the sovereign States on its borders with each other and the United States, that this vast stream, this great inland sea, the subject of so much jealous solicitude, is a mere private

1 8 Statutes at Large, p. 204.

stream, belonging to the private individuals, who occupy and may own an acre on the verge of its banks, and subject only to the servitude of the public for the purposes of navigation? Must not this river and its vast tributaries, by every law applicable to it, whether Civil or Common Law, be considered what it really is by nature, treaty, and solemn compact, a navigable stream in the highest and broadest sense, an inland sea, a great national highway, owned by the States, and for ever free?

CHAPTER V.

OF THE OWNERSHIP OF THE SOIL THEREIN.

§ 121. HAVING shown that the great rivers of the United States are navigable in the highest and broadest sense, we will now proceed to a discussion of ownership of the soil therein. In England, the soil in public navigable rivers, "where there is a common right of navigation exercised,' belongs to the king. In the United States, the shores of navigable waters and the soil under them belong to the State in which they are situated as sovereign, and the State is deemed to possess the original and ultimate property in all the lands within its jurisdiction. The United States Supreme Court, Taney, Chief-Justice, says, "When the Revolution took place, the people of each State became themselves sovereign, and in that character hold the absolute right to all their navigable waters and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the General Government."2

§ 122. In the case of Pollard's Lessee v. Hagan,3 the question whether the United States or the State of Alabama held the soil under, and the shores of, navigable streams, was fully discussed. The Supreme Court in that case held, that the United States never had any municipal sovereignty, jurisdiction, and right of soil in and to the territory of which Alabama or any of the new States were formed, except for temporary purposes, and to execute the trusts created by the

1 Woolrych on Waters, p. 40.

2 Martin et al. v. Waddell, 16 Peters, 410.

3 3 Howard, 212.