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[DOC. No. 17.] 
 
 * 
 
 ' JUDGMENT 
 
 GENERAL 
 
 OF THE 
 
 « 
 
 COURT OF VIRGINIA, 
 
 
 
 IN THE CASE OF THE 
 
 COMMONWEALTH v. PETER GARNER AND OTHERS 
 
 ADJOURNED FROM THE CIRCUIT COURT OF WOOD COUNTY: 
 
 ALSO, A COPY OF THE 
 
 OPINIONS OF THE JUDGES, 
 
 SO FAR AS THEY ARE ON FILE IN SAID CAUSE. 
 
 RICHMOND: 
 
 PRINTED BY SAMUEL SHEPHERD 
 Printer to the Commonwealth. 
 
 181?, 
 
[Doc. No. 17.] 
 
 Richmond, December 31, 1846. 
 
 Sir, 
 
 In obedience to a resolution adopted by the house of delegates on the 
 18th instant, requiring the clerk of the general court to furnish that house “ with 
 a copy of the judgment of said court in the case of The Commonwealth against 
 Peter Garner and others, adjourned from the circuit court of Wood county— 
 also a copy of the opinions of the judges, so far as they are on file in said cause,” 
 I have the honour to enclose copies of the said judgment and opinions. 
 
 As the judgment refers to “the facts found,” which are contained in the record 
 transmitted to the general court from the circuit court of Wood county, a copy 
 of that record (though not called for by the literal terms of the resolution) has 
 been deemed a proper accompaniment of the other copies, and is accordingly 
 prefixed to them. 
 
 Very respectfully, 
 
 To the Speaker of the 
 
 House of Delegates of Virginia. 
 
 N. P. HOWARD, 
 Clerk of the General Court. 
 
[Doc. No. 17.] 
 
 JUDGMENT, &c. 
 
 Virginia, to wit : 
 
 Be it remembered that at a circuit superior court of law and chan¬ 
 cery held for Wood county at the courthouse thereof on the first day 
 of September in the year eighteen hundred and forty-five, before David 
 M’Comas, Esq., a judge of the general court and judge of the circuit 
 superior court of law and chancery of the nineteenth circuit of the 
 tenth judicial district, George W. Henderson foreman, John Pugh, 
 Alexander H. Creel, Abel James, William F. Coffer, George V. Lewis, 
 Oliver P. Lewis, Francis M. Keene, Janies Fisher, William Foughty, 
 Henry Steed, John Barnett, jr., Johnathan B. Beckwith, George Neale, 
 jr., Thomas Creel, James D. Woodyard, Cincinnatus J. Neal, James 
 Wood and Daniel Wilkinson were sworn as a grand jury of inquest for 
 the body of this county, and having received their charge withdrew, 
 and after some time returned into court and presented “ an indictment 
 against Peter M. Garner, Mordecai Thomas and Crayton J. Loraine for 
 felony, a true billwhich indictment is in the words following, to wit: 
 
 “ Virginia, Wood county, to wit: The grand jurors for the common¬ 
 wealth of Virginia and for the body of the county of Wood, upon their 
 oaths present that Peter M. Garner, Mordecai Thomas and Crayton J. 
 Loraine, free white persons, late of the county of Wood, on the ninth 
 day of July in the year of our Lord one thousand eight hundred and 
 forty-five, with force and arms, at the county of Wood aforesaid and 
 within the jurisdiction of the circuit superior court of lav/ and chan¬ 
 cery for said county of Wood, did feloniously entice, advise and per¬ 
 suade six certain negroes, slaves, the property of John H. Harwood of 
 said county, the said slaves then and there being in the possession and 
 service of the said John H. Harwood, to abscond from the possession 
 and service of the said John H. Harwood, and without the knowledge 
 and consent of said John H. Harwood, against the form of the statute 
 in such case made and provided, and against the peace and dignity of 
 the commonwealth. 
 
 “ And the jurors aforesaid on their oaths aforesaid do further present 
 that Peter M. Garner, Mordecai Thomas and Crayton J. Loraine, free 
 white persons, late of said county, on the ninth day of July in the year 
 of our Lord one thousand eight hundred and forty-five, with force and 
 arms, at the county of Wood aforesaid and within the jurisdiction of 
 the circuit superior court of law and chancery for said county of Wood, 
 did feloniously carry and cause to be carried out of this commonwealth 
 to the state of Ohio six negro slaves the property of John H. Har¬ 
 wood, without the consent of the said John H. Harwood the owner of 
 said slaves, with intention in so doing to defraud the said John H. Har- 
 
4 
 
 [Doc. No. 17. ] 
 
 wood, and to deprive the said John H. Harwood the owner of said 
 slaves of the use, enjoyment, property and possession of said slaves, 
 against the form of the statute in such case made and provided, against 
 the peace and dignity of the commonwealth. 
 
 “ And the jurors aforesaid on their oaths aforesaid do further present 
 that Peter M. Garner, Mordecai Thomas and Crayton J. Loraine, late 
 of the county of Wood, being persons travelling by land, did on the 
 ninth day of July in the year of our Lord one thousand eight hundred 
 and forty-five, with force and arms, at the county of Wood aforesaid 
 and within the jurisdiction of the circuit superior court of law and 
 chancery for said county, did feloniously give countenance, protection 
 and assistance to six negro slaves the property of John H. Harwood, 
 then being carried away and absconding from their owner, for the pur¬ 
 pose of preventing the said six negro slaves the property of John H. 
 Harwood from being stopped and apprehended, contrary to the form of 
 the statute in such case made and provided, and against the peace and 
 dignity of the commonwealth.” 
 
 “ A true bill. 
 
 George W. Henderson , foreman.” 
 
 And thereupon the said Peter M. Garner, Mordecai Thomas and 
 Crayton J. Loraine being brought into court were set to the bar in the 
 custody of the jailor, arraigned upon said indictment, and pleaded seve¬ 
 rally not guilty. But the health of John J. Jackson, who prosecutes 
 for the commonwealth in this court, being such as neither in reference 
 to his own safety nor the interests of the commonwealth to permit him 
 to proceed in the trial of the prisoners, the same is continued until an 
 intermediate term of this court to be held for this county on the 17th 
 day of November next. And the court is of opinion, and doth so order 
 and direct, that the prisoners be released from their imprisonment upon 
 each of them entering into a recognizance with one or more good se¬ 
 curities in the sum of five hundred dollars, and their said securities in 
 a like sum conditioned for their personal appearance here on the said 
 17th day of November next, to answer to said indictment and not de¬ 
 part the court without leave. And such security not being given, the 
 prisoners were remanded to prison. 
 
 And afterwards, to wit. at a circuit superior court of law and chan¬ 
 cery held for said county at the courthouse thereof, pursuant to adjourn¬ 
 ment, on the 17th day of November in the year 1845, before the same 
 judge aforesaid, the said Peter M. Garner, Mordecai Thomas and Cray¬ 
 ton J. Loraine who stand indicted for felony were brought into court 
 and set to the bar in the custody of the jailor. And thereupon the 
 attorney who prosecutes for the commonwealth in this court having 
 declared his wish to proceed against the prisoners separately upon the 
 indictment, and the court assenting thereto, Mordecai Thomas and 
 Crayton J. Loraine were remanded to prison, and Peter M. Garner put 
 upon his trial. And after six of the jury were elected and sworn, the 
 court took a recess for refreshment for one hour, and the jury, so far as 
 impannelled, by consent of the prisoner were committed to the custody 
 of James Cook and Henry H. Dils deputy sheriffs of this county, who 
 
5 
 
 [ Doc. No. 17. ] 
 
 are directed to keep them together without communication with any 
 other person, and to cause them to appear here at the expiration of one 
 hour as aforesaid; whereupon an oath was administered to the said 
 deputy sheriffs to the following effect: “ You shall well and truly, to 
 the best of your ability, keep this jury, and neither speak to them 
 yourselves nor suffer any other person to speak to them touching any 
 matter relative to this trial, until they return into court.” And there¬ 
 upon the prisoner was remanded to prison. 
 
 At the expiration of the time aforesaid the prisoner was again brought 
 into court and set to the bar in the custody of the jailor, and the jury, 
 so far as elected and sworn and committed to the custody of the deputy 
 sheriffs aforesaid, were brought into court. And then came a jury, to 
 wit, Hiram Prebble, George Waggle, John L. Crawford, Henry Lower, 
 Joshua Riley, Henry Syphord, Benja. Cooper, Phillip Waggle, jr., 
 Tarlton Brown, Thomas B. Leach, Nathaniel Rice and James Lyons, 
 good and lawful men, who were elected, tried and sworn to truth to 
 speak of and upon the premises, and having partly heard the evidence, 
 were adjourned over until eight o’clock to-morrow, and the jury by 
 consent of the prisoner again committed to the custody of the deputy 
 sheriffs aforesaid, who are directed to keep them together without com¬ 
 munication with any other person, and to cause them to appear here 
 to-morrow at eight o’clock ; whereupon an oath was again administered 
 to the said deputy sheriffs to the following effect: “You shall well 
 and truly, to the best of your ability, keep this jury, and neither speak 
 to them yourselves nor suffer any other to speak to them touching any 
 matter relative to this trial, until they return into court.” When the 
 prisoner was again remanded to prison. 
 
 And on another day of the same court, to wit, the 18th day of No¬ 
 vember 1845, held before the same judge for the county aforesaid at 
 the courthouse thereof, the said Peter M. Garner was again brought in¬ 
 to court and set to the bar in the custody of the jailor, and the same 
 jury committed to the custody of the deputy sheriffs as aforesaid were 
 also brought into court, and having further heard the evidence, the 
 court took a recess for refreshment for one hour, when the jury were 
 again committed by consent of the prisoner to the custody of James 
 Cook and James Dils, deputy sheriffs of this county, who are directed 
 to keep them together without communication with any other person, 
 and to cause them to appear here at that time; whereupon an oath 
 was administered to the said deputy sheriffs to the following effect: 
 “You shall well and truly, to the best of your ability, keep this jury, 
 and neither speak to them yourselves nor suffer any other person to 
 speak to them touching any matter relative to this trial, until they re¬ 
 turn into court.” And thereupon the prisoner was remanded to prison. 
 
 At the expiration of the time aforesaid the prisoner was again set to 
 the bar in the custody of the jailor, and the jury committed to the cus¬ 
 tody of the deputy sheriffs aforesaid were also brought into court, and 
 having further heard the evidence, were adjourned over to eight o’clock 
 to-morrow by consent of the prisoner, and committed to the custody 
 of James Cook and James A. Foley deputy sheriffs of this county, 
 who are directed to keep them together without communication with 
 
6 
 
 [Doc. No. 17.] 
 
 any other person, and cause them to appear here to-morrow at eight 
 o’clock; whereupon an oath was administered to the said deputy 
 sheriffs to the following effect: “You shall well and truly, to the best 
 of your ability, keep this jury, and neither speak to them yourselves 
 nor suffer any other person to speak to them touching any matter rela¬ 
 tive to this trial, until they shall return into court.” And the prisoner 
 was again remanded to prison. 
 
 Memo. Upon the trial of this cause a bill of exceptions was 
 tendered by the prisoner’s counsel, signed by the judge, and made a 
 part of the record, and is in these words and figures following to wit: 
 “ The prisoners, being jointly indicted, moved the court to permit them 
 to be tried jointly by the same jury, offering to waive every right they 
 had incompatible with a joint trial. The attorney for the common¬ 
 wealth agreed that they might have such a trial, provided they would 
 waive the right to peremptorily challenging more than twenty jurors, 
 being the number to which each one would be entitled on a separate 
 trial; which waiver the prisoners were unwilling to make, and there¬ 
 upon the attorney for the commonwealth objected to trying them jointly. 
 The question being submitted to the court, the court was of opinion 
 that the question as to the right of a joint trial was addressed to the 
 sound discretion of the court; and being of opinion that much incon¬ 
 venience and perhaps injustice would result from permitting sixty per¬ 
 emptory challenges in making up one jury, decided that the prisoners 
 should be tried separately. The court was satisfied that although such 
 challenges were ostensibly made by the prisoners, yet they were in 
 fact made by the counsel, and that therefore a joint trial, by which 
 they would have the right of making sixty challenges, would in effect be 
 equal to giving each one of them sixty challenges. The court was also 
 of opinion that it would be improper to deprive the prisoners of any 
 right, and particularly the right of challenge. The court further de¬ 
 cided that the commonwealth had as much right to object to a joint 
 trial as the prisoners had to ask it, and that the court, in exercising its 
 discretion, should decide between them. After having decided that 
 the trial should be separate, the court permitted the attorney for the 
 commonwealth to elect which of the prisoners he would try first. To 
 which opinion of the court overruling the motion of the prisoners and 
 directing them to be tried separately, the said prisoners except; and 
 their exceptions are signed, sealed, enrolled and made a part of the 
 record. 
 
 “ David M’Comas , [Seal.]” 
 
 And on another day of the same court, to wit, at a circuit superior 
 court of law and chancery held for said county at the courthouse there¬ 
 of before the same judge aforesaid on the 19th day of November 1S45, 
 the said Peter M. Garner was again brought into court and set to the 
 bar in custody of the jailor, and the jury sworn and impannelled to try 
 this cause and committed to the custody of the deputy sheriffs afore¬ 
 said were also brought into court, and having fully heard the evidence, 
 the court took a recess until one o’clock, when by consent of the 
 prisoner the jury were again committed to the custody of James Cook 
 
[Doc. No. 17.] 7 
 
 and Henry H. Dils deputy sheriffs of this county, who were directed 
 to keep them together without communication with any other person, 
 and to cause them to appear here at one o’clock as aforesaid; where¬ 
 upon an oath was administered to the said deputy sheriffs to the fol¬ 
 lowing effect: “You shall well and truly, to the best of your ability, 
 keep this jury, and neither speak to them yourselves nor suffer any 
 other person to speak to them touching any matter relative to this trial, 
 until they return into court.” And thereupon the prisoner was re¬ 
 manded to prison. 
 
 At which time the jury so committed to the custody of the deputy 
 sheriffs as aforesaid were again brought into court, and the prisoner set 
 to the bar in the custody of the jailor; and Mordecai Thomas and 
 Crayton J. Loraine, who also stand indicted for felony, were also set to 
 the bar in the custody of the jailor. And the said Mordecai Thomas 
 and Crayton J. Loraine consenting and agreeing to be tried by the same 
 jury which was sworn and impannelled for the trial of Peter M. Gar¬ 
 ner, and to abide by the same evidence given on the trial of the said 
 Peter M. Garner, and the said jury being duly sworn the truth to speak 
 of and upon the premises, upon their oaths do say— 
 
 That they find the following facts to be true, viz : 
 
 That the congress of the United States, on the 6th day of Septem¬ 
 ber A. D. 1780, took into consideration the subject of the cession to 
 the United States of their claims to the western country by those states 
 having claims to the same, and on that day adopted a certain report and 
 resolution on that subject, which will be found in the 10th volume of 
 Hening’s Virginia Statutes at Large, in pages 562 and 563. That on 
 the 2d day of January A. D. 1781, the legislature of Virginia passed a 
 certain resolution for the cession of the lands on the northwest side of 
 the Ohio river to the United States, which act or resolution of the le¬ 
 gislature of Virginia will be found in said 10th volume of Hening’s 
 Statutes at Large, at pages 564, 565, 566 and 567. That on the 13th 
 day of September A. D. 1783, congress adopted a report and resolution 
 on the subject of the said last named resolution of the legislature of 
 Virginia, which report and resolution will be found in the 4th volume 
 iof the Journals of the Congress of the Confederation, at pages 265, 266 
 and 267. That on the 20th of October A. D. 1783, the legislature of 
 Virginia passed another act for the revision of the said resolution of 
 the 2d of January A. D. 1781. That on the 1st March A. D. 1784, 
 congress by resolution agreed to accept the last named act of cession ; 
 whereupon a deed of cession was executed by the delegates in con¬ 
 gress from Virginia and accepted by congress, which deed will be found 
 in the 1st vol. of the Laws of the United States, page 472. That on 
 the 13th day of July 1787, congress passed an ordinance for the govern¬ 
 ment of the territory northwest of the Ohio, which said ordinance, 
 jamong other things, declared and ordained that certain articles therein 
 should be considered as articles of compact between the original states 
 and the people and states in said territory, and forever remain unaltera¬ 
 ble except by common consent; one of the provisions of which arti¬ 
 cles of compact is, that “ the navigable waters leading into the Missis¬ 
 sippi and St. Lawrence, and the carrying places between the same, 
 
8 
 
 [Doc. No. 17.] 
 
 shall be common 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.” That on the 18th of December A. D. 
 1789, the legislature of Virginia passed an act which authorized the 
 then district of Kentucky to erect itself into an independent state on 
 certain terms and conditions, one of which was, “ that the use and na¬ 
 vigation of the Ohio river, so far as the territory of the proposed 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 which may possess the op¬ 
 posite shores of the said river.” See Hening’s Statutes at Large, 13th 
 volume, page 19. That by act of congress of the 4th of February 
 1791, the said state of Kentucky was admitted into the Union in pur¬ 
 suance to said act of Virginia, and thereby became one of the United 
 States. That by act of congress of the 30th April 1802, the present 
 state of Ohio was authorized to form a constitution and state govern¬ 
 ment and be admitted into the Union as one of the states thereof; which 
 act prescribes the boundaries of said state of Ohio, whose boundary on 
 the southeast side is defined and fixed in the following words, viz: 
 bounded “ on the south by the Ohio river.” That the said state of 
 Ohio, under and by virtue of said act of congress, formed a state con¬ 
 stitution; and was admitted into the Union, with the boundary afore¬ 
 said, by another act of congress passed on the 3d of March A. D. 1803. 
 
 They further find that the said defendants Peter M. Garner, Morde- 
 cai Thomas and Crayton J. Loraine are citizens of the state of Ohio, 
 and on the 9th day of July 1845, resided in that state about four miles 
 back from the river Ohio, in the county of Washington, Ohio, and op¬ 
 posite said county of Wood in Virginia. That on the night of said 
 9th of July, early in the evening, a party of men residing in said county 
 of Wood, who had received information that the negro slaves of said 
 John H. Harwood of said county of Wood, in said indictment named, 
 intended to escape from their owner on that night and abscond from 
 Virginia into the state of Ohio, crossed the Ohio river to the Ohio shore 
 nearly opposite the residence of said Harwood, and concealed them¬ 
 selves on the bank of the river. That after remaining some one or 
 two hours, a party of men, six in number, passed by where they were 
 lying, of whom the said Garner, Thomas and Loraine were part. That 
 this last party went under the bank of the river, and remained there, at 
 some distance on the beach above the water, till about 1 or 2 o’clock at 
 night, when a canoe with six negro slaves the property of said Harwood 
 came across the river to the Ohio shore. As it came near the shore, the 
 party under the bank gave it a sort of hail, to which an answer not dis¬ 
 tinctly heard was returned from the canoe. That said negroes landed 
 said canoe obliquely against the bank opposite to where the party under 
 the bank were standing, running the bow of the canoe on the beach at 
 the water edge. That certain bags of clothing and articles of property 
 were in the bow of the canoe, occupying a space of six or eight feet 
 
9 
 
 [Doc. No. 17.] 
 
 in the bow. That as soon as said canoe struck the beach, the said 
 ! party under the bank, among whom were said defendants Garner, Tho¬ 
 mas and Loraine, came down the beach to the bow of the canoe at the 
 water edge, and without entering said canoe, stepped into the water at 
 the bow, and assisted said negroes to take said bags and articles of pro¬ 
 perty out of the canoe. Said Garner, taking from the bow of the ca¬ 
 noe a bag, started off with it up the beach towards the bank of the ri¬ 
 ver. That at the same time the rest of the party, with the negroes, 
 followed said Garner; when the first named party from Virginia, who 
 lay in ambush, rushed down upon them, retook all of said slaves ex¬ 
 cept one, and forcibly seized the said defendants Garner, Thomas and 
 Loraine, and forcibly carried them across the Ohio river into said county 
 of Wood, where they have been since detained in prison, and where 
 the indictment on which they are now on trial was found against them. 
 
 And they further do find that the river Ohio, at that stage of it 
 which the boatmen on said river call low water, the water in the chan¬ 
 nel on the bars is from 17 to 20 inches deep. That at extreme low 
 water, or where the water was once known to be, the water on said 
 bars in the channel was eleven inches deep. That on the said 9th of 
 July, the water on said bars in the channel was thirty-nine (39) inches 
 deep. That the average depth of water in the channel on said bars 
 for the whole year is six feet, or thereabouts. That taking the whole 
 year round, one year with another, the water, for nine months in the 
 year or thereabouts, would be above what it was on said 9th of July, 
 and for three months or thereabouts, lower than it then was. That 
 the average height of the banks of the Ohio river is about thirty-six 
 feet above low water; and that at the place where said canoe landed, 
 the bank, on the Ohio side of the river, is about fifteen feet high. 
 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 at the place where said canoe was landed on the said night of the 
 9th of July, the edge of the water, at the extreme low water of ele¬ 
 ven inches in the channel, is some 50 or 60 feet in a right line, mea¬ 
 suring on the beach, below where it was at that place on said night of 
 the 9th July. 
 
 And they do further find that the said negroes slaves left the said 
 John H. Harwood their owner and crossed over the Ohio river as afore¬ 
 said, without his knowledge or consent, and that the said articles of 
 property in said canoe were the goods and chattels of the said John H. 
 Harwood, and taken by them from him without his consent. 
 
 And they do further find that when the water is at six feet in the 
 channel on the bars, the ground where the said canoe was landed, and 
 upon which the said defendants were when they assisted to take said 
 articles from said canoe, is covered by the water of the river. 
 
 If, from the foregoing facts, the court should be of opinion that the 
 offence charged in the indictment was committed within the jurisdic¬ 
 tion of this court, then we find the defendants guilty, and ascertain the 
 the term of the confinement in the public jail and penitentiary house 
 of this commonwealth for the term of three years each. If, from the 
 foregoing facts, the court should be of opinion that the offences were 
 2 
 
 I 
 
10 [Doc. No. 17.] 
 
 committed without the jurisdiction of this court, then they find the 
 defendants not guilty. 
 
 And the court, not being advised as to what judgment to render on 
 the special verdict, take time to consider thereof until to-morrow. 
 And thereupon the prisoners were remanded to prison. 
 
 And on another day of said court, to wit, at a circuit superior court 
 of law and chancery held for Wood county at the courthouse thereof 
 before the same judge aforesaid on the twenty-first day of November 
 1845, the said Peter M. Garner, Mordecai Thomas and Crayton J. Lo- 
 raine were again set to the bar in the custody of the jailor: and there¬ 
 upon the judge of this court informed them that a fact essential to the 
 decision of the questions intended to be made by the special verdict 
 was omitted in said verdict, and that unless they would agree such 
 fact, the court had determined to set aside the said verdict and award a 
 venire de novo. And thereupon the prisoners in their own proper per¬ 
 sons agreed that the following fact, being the fact required, might be 
 added to said verdict, to wit: That if the offences set forth in the spe¬ 
 cial verdict found in these cases were committed in any county in Vir¬ 
 ginia, they were committed in the county of Wood. 
 
 The court, by the consent of the prisoners and the assent of the 
 attorney for the commonwealth, doth adjourn to the general court, as 
 questions of novelty and difficulty arising on the special verdict found 
 in these cases, the following : 
 
 First. From the facts found, was the offences committed within the 
 jurisdiction of this court? 
 
 Second. What is the territorial boundary of Virginia on the north¬ 
 western side of the Ohio river ? Is it the lowest water mark ? Or is 
 it the ordinary low water mark ? Or does it extend to the water mark 
 made by the river when it is at its average depth as found by the ver¬ 
 dict ? Or does it extend to the top of the banks? 
 
 Third. Is the jurisdiction of Virginia co-extensive with the water 
 while it is confined within its banks ? 
 
 Fourth. What is the effect of the grant of Virginia, in her compact 
 with Kentucky, of concurrent jurisdiction to other states possessing the 
 opposite shore of the Ohio river, upon the jurisdiction of Virginia on 
 the said river ? 
 
 Fifth. What judgment ought this court to give on the said special 
 verdict ? 
 
 And thereupon the prisoners were remanded to prison. 
 
 Teste, 
 
 J. H. NEAL, Clerk. 
 
[Doc. No. 17.] 
 
 11 
 
 Virginia, to wit: 
 
 At a general court of Virginia continued by adjournment and held 
 at the capitol in the City of Richmond on Saturday the 12th day of 
 December 1846 : 
 
 Present—Daniel Smith, John T. Lomax, John Scott, James E. 
 Brown, Edwin S. Duncan, Joseph L. Fry, John B. Clopton, Richard 
 H. Baker, John B. Christian, Daniel A. Wilson, Edward Johnston, 
 John Robertson, David M’Comas and Norborne M. Taliaferro esquires, 
 judges. 
 
 ' Adjourned case from the 
 circuit superior court of 
 \ law and chancery for 
 J the county of Wood. 
 
 The Commonwealth 
 
 against 
 
 Peter M. Garner, Mordecai Thomas and 
 
 i 
 
 Crayton J. Loraine, defts. 
 
 A majority of this court is of opinion and doth decide, 
 
 1st. That from the facts found, the offences charged were not com¬ 
 mitted within the jurisdiction of the circuit superior court of Wood 
 county, or of the state of Virginia. 
 
 2nd. That judgment ought to be rendered in favour of the defen¬ 
 dants. 
 
 And this court deems it unnecessary to decide any of the other 
 questions adjourned, and doth not intend to express or intimate any 
 opinion thereon. 
 
 Which is ordered to be certified to the circuit superior court of law 
 and chancery for the county of Wood. 
 
 From the foregoing opinion and decision, judges Scott, Baker, Chris¬ 
 tian, Robertson and M’Comas dissent. 
 
 Opinion of M’Comas, J . [After making a statement of facts found 
 in the special verdict, the judge proceeded as follows—J 
 
 The judge of the circuit superior court of law and chancery for the 
 icounty of Wood adjourned to this court several questions of law ari¬ 
 sing from the facts found in the special verdict; all of which are in¬ 
 cluded in the general proposition, Had the superior court of Wood 
 jurisdiction to try the offence ? And this, in my opinion, depends 
 upon the question whether the offence was committed within the terri¬ 
 tory of Virginia. Whether the offence was committed in Virginia or 
 not, depends upon the just and proper construction of the deed of 
 cession made by Virginia to the United States. But before I pro¬ 
 ceed to examine the construction proper to be put upon the deed of 
 cession, it will be necessary to notice in a concise manner the ob¬ 
 jections made by the counsel of Ohio to the claim of Virginia to 
 jurisdiction and territory. Indeed that counsel contended that Virginia 
 had no jurisdiction to the territory northwest of the Ohio river, nor 
 even to the territory bordering on the Ohio river on the southeast side 
 thereof, previous to the deed of cession. It seems to me to be too late 
 at this day to question Virginia’s title to the said territory. 
 
12 
 
 [Doc. No. 17.] 
 
 Bat if it were an open question, her title was beyond dispute. The 
 territory northwest of the Ohio river was within the acknowledged 
 boundaries of Virginia under the charter of 1609. Bat it is said, the 
 British king had no right to grant such charter, he having no title to 
 the country included in it. It will not be necessary to enquire into the 
 rights of the British ,king; because no civilized nations had claim to 
 the country except England and France, and by treaty between those 
 two nations the boundaries were ascertained and fixed between them, 
 and the territory in controversy was acknowledged to be in the Eng¬ 
 lish crown, and of course by that treaty the title of Virginia to the 
 lands contained in her charter, and comprehended in the limits of the 
 British possessions, was confirmed, and thereby made good. The 
 British king by several acts, and particularly by grants of large tracts 
 of land, acknowledged that the northwestern territory was within the 
 jurisdiction and limits of Virginia. No other colony or state attempted 
 to exercise or extend its jurisdiction or laws over that territory ; neither 
 did the English government, except as a portion of the colony of Vir¬ 
 ginia. It follows therefore, if it were not a part of Virginia, no civi¬ 
 lized nation ever extended jurisdiction over it. 
 
 But it is stated that the charter of Virginia was annulled, and that 
 she has no right to claim under said charter. It has been decided, and 
 I think rightly, that “ the charter was annulled so far as the rights of 
 the company were concerned, but not in respect to the rights of the 
 colony. The powers of government, the same powers which the char¬ 
 ter had vested in the company as proprietor, were vested in the crown: 
 the same title to the lands within its chartered limits, which the char¬ 
 ter had vested in the company, was revested in the crown. Virginia, 
 by her declaration of independence, declared that her boundaries should 
 be, with certain exceptions, that of her ancient charter of 1609. Judge 
 Baldwin, in his constitutional views, at page 80, remarks that this 
 guarantee was fulfilled by the treaty of peace, in which his britannic 
 majesty acknowledged the United States, to wit, New Hampshire, Ac. 
 to be free, sovereign and independent states. This recognition, relating 
 back to the separate or unanimous declarations by the states, has the 
 same effect as if the state had then assumed the same position by pre¬ 
 vious authority of the king, the treaty not being a grant, but a recog¬ 
 nition and subsequent ratification of their pre-existing condition; and 
 all acts which had declared and defined it previous to the treaty related 
 back to 1776.” 
 
 As it appears that the territory in dispute was never within the char¬ 
 tered limits of any other colony or state, or declared to be so by any 
 state in her declaration of independence either separately or jointly, 
 and as it has been frequently decided that the confederation had ac¬ 
 quired no land or territory by the war, it follows that if the territory in 
 dispute were not a part of the territory of Virginia, it did not belong to 
 the United States. 
 
 In relation to the territory northwest of the Ohio river, it ought to 
 be recollected that during the revolutionary war, and before the cession, 
 Virginia conquered the territory by her own troops, unaided by the 
 other states of the Union, and formed the whole territory into the 
 
13 
 
 [ Doc. No. 17. ] 
 
 county of Illinois. It therefore seems to me, as the territory was not 
 within the chartered limits of any other state, and as it undoubtedly 
 belonged to the British crown, this conquest would give Virginia an un¬ 
 doubted right to it. 
 
 As to the right of Virginia to the territory and dominion extending 
 to the Ohio river, no man could have entertained a serious doubt. 
 Long before the revolutionary war, large grants of land had been made, 
 as within the colony of Virginia, along the margin of the river, and 
 counties were formed extending to it. At the time of the declaration 
 of independence by Virginia, counties bordering on the Ohio were 
 represented in the convention that formed the constitution for the state. 
 No other civilized nation or state extended or pretended to extend juris¬ 
 diction over it, but it has always been under the exclusive jurisdiction 
 of Virginia. 
 
 It being settled that at the time of the cession Virginia had an un¬ 
 doubted jurisdiction of the territory to the Ohio river, and it being 
 clearly established that if the territory northwest of the river was not 
 within her jurisdiction, it had not been under the control or manage¬ 
 ment of any civilized people, it follows that Virginia was the first oc¬ 
 cupant of the banks of the Ohio. Now then, supposing that Virginia, 
 having clear title to the territory southeast of the Ohio river, and no 
 title to any portion of the territory northwest of said river, was yet the 
 first settler; what would be her rights to the river ? 
 
 In Vattel’s Law of Nations, p. 179-80, it is thus laid down : “ When 
 a nation takes possession of a country in order to settle there, it pos¬ 
 sesses every thing included in it, as lands, lakes, rivers, &c. But it 
 may happen that the country is terminated and separated from another 
 by a river; in which case it is asked, to whom this river belongs? It 
 is manifest, on principles established in chapter xviii. that it ought to 
 belong to the nation who first took possession of it. This principle 
 cannot be denied ; but the difficulty is to make the application. When 
 a nation takes possession of a country terminated by a river, it is con¬ 
 sidered also as appropriating the river to itself; for a river is of such 
 great use, that it is to be presumed the nation intended to reserve it to 
 itself. Consequently the nation who first established its dominion on 
 one of the banks of the river, is considered as being the first possessor 
 of all that part of the river which terminates its territory.” Virginia, 
 being the first to extend her dominion to the river, is entitled to the 
 whole river, whether she owned territory northwest of it or not. 
 What is included in the term river will hereafter be enquired into. 
 
 It being clearly established that Virginia had a right to the territory 
 on both sides of the Ohio river, she by her deed of cession conveyed 
 to the “ United States in congress assembled, for the benefit of said 
 states, all right, title and claim, as well of soil as jurisdiction, which 
 this commonwealth hath to the territory or tract of country within the 
 limits of the Virginia charter, situate, lying and being to the northwest 
 of the Ohio river.” This deed of cession must either be construed 
 according to the rules of the common law, or according to the rules of 
 the law of nature and of nations. I am of opinion it ought to be con¬ 
 strued according to the law of nations; Virginia, at the time, being to 
 
14 
 
 [Doc. No. 17.] 
 
 all intents and to every purpose a sovereign and independent nation, 
 and the states for whose benefit said cession was made being alike 
 sovereign and independent. It is true that they were friendly states; 
 but that can make no difference in the construction of a contract be¬ 
 tween them. 2 Rutherforth’s Inst. p. 460. It is a general principle 
 of the law of nations, that a grant from a sovereign must be strictly 
 construed, both by the law of nature and of nations, and that it must 
 be so construed even between sovereign and citizen where the public 
 domain is ceded away. 1 Rutherforth’s Inst. p. 200. Martin v. 
 Waddle , 16 Peters p. 367. Arnold v. Mundy —, 1 Halsted p. 1. 3 
 Kent’s Comm. p. 348. That is that the deed is not to be construed 
 most strongly against the grantor, but that the actual intention of the 
 grantor must be gathered from the whole deed ; and a grant made by a 
 sovereign will extend to the edge of the water, or to high or to low 
 water mark, according to such intention. Hatch v. Dwight , 17 Mass. 
 Rep. 2S9. Saunders v. M ’Mackin 258. 
 
 What did Virginia intend in relation to the Ohio river? Is it not 
 clear that she intended to reserve to herself the entire river, and not a 
 part of it ? And were there not at that time many reasons that she 
 should have so retained it, both for the purposes of war and peace ? It is 
 a fact well known to history that the confederation was considered 
 nothing but a rope of sand, and was believed by none to possess power 
 to hold the states in union; and Virginia must have seen at the time 
 of making the deed of cession a probability of a disunion. But if she 
 only reserved her right over it for the purposes of navigation, it is cer¬ 
 tain she intended to make those who navigated the river amenable to 
 her laws, and to throw the shield of her protection around her own 
 citizens who might navigate it in any stage of its waters. But if her 
 grant is to commence at low water on the northwestern side, the ob¬ 
 ject of her reservation is altogether defeated. Can it be believed that 
 Virginia only reserved her jurisdiction over the river when it was of 
 no use for navigation or any thing else, and that the moment it be¬ 
 comes navigable it may be navigated, and the persons so navigating, 
 by attaching themselves to the opposite shore, or running on the north¬ 
 western side between high and low water mark, would be entirely out 
 of her jurisdiction, while yet they would be on and navigating the 
 Ohio river, which Virginia reserved to herself? 
 
 Some light may be thrown upon the construction of the deed of ces¬ 
 sion by an examination of the definition of a river given by writers on 
 national law. 
 
 The most approved of those writers define a river to consist of the 
 water, the bed, and the banks. It is a compound idea: it cannot exist 
 in the absence of any of its constituent parts. Deprive it of a bank, 
 and it loses its character of a river. Take from it its bed, and the same 
 consequences ensue. It cannot be confined to the simple term water , 
 because that is only an ingredient of the compound. Then you must 
 necessarily associate the bed, the banks and the water, to constitute 
 any idea of the term river. Thus Rutherforth, in his 1st Inst. p. 90, 
 91, in giving his reason why the ocean does not admit of property, 
 says, it “ is not contained within banks or shores ; for it rather encom- 
 
15 
 
 [Doc. No. 17.] 
 
 passes the land, the continent as well as the islands, than is encom¬ 
 passed by it. The natural uncertainty therefore of the thing, both as 
 to the whole of it and as to its principal parts, renders it incapable of 
 being appropriated by occupancy. But the case of rivers, bays, straits, 
 pools or lakes is different from that of the ocean. For though, as fluid 
 bodies, they are not set out into certain and determinate parcels by any 
 marks or limits upon their surface, yet as they are contained within 
 banks or shores, which are near to one another, they are by this means 
 made certain and determinate enough to admit of property by occu¬ 
 pancy.” 
 
 Now if this be the true definition, then the Ohio river is all that 
 space contained between its banks, and the territory ceded must ne¬ 
 cessarily commence at high water mark while the water is contained 
 within its banks. But if the banks are not to be taken into conside¬ 
 ration, the bed does certainly form a portion of the river ; and the 
 water receding for an hour, a day or a month, or even three months, 
 and again returning and occupying the said space for at least nine 
 months in the year, would not destroy its character of bed of the river. 
 
 That such was the construction put upon the deed of cession by 
 Virginia seems to follow from her compact with Kentucky. In the 
 said compact she secured to all the citizens of the United States the 
 free navigation of the Ohio river, and to the states possessing the op¬ 
 posite shores concurrent jurisdiction with herself and Kentucky on the 
 river; and as this jurisdiction was given for the purposes of naviga¬ 
 tion, it must be so construed as to make the grant effectual for that 
 purpose, and must of necessity have extended to all the river within 
 the territory of Virginia, at every stage of its waters. Can any person 
 read this compact with Kentucky, and doubt that Virginia believed 
 she possessed exclusive jurisdiction of the entire river? In her grant, 
 she does not ask of the states bordering on the northwestern side 
 of the river any other or further jurisdiction for herself on said river, 
 nor did she make the grant to the other states depend upon their con¬ 
 ferring any jurisdiction upon her ; for the plain reason, that she did not 
 think they possessed any thing to grant. 
 
 It is contended by some, that the other states having accepted and 
 Exercised the concurrent jurisdiction given them by Virginia has 
 diereby conferred concurrent jurisdiction upon her between high and 
 ow water mark on the Ohio side. I shall not here undertake to de¬ 
 cide whether this be so or not. But I am inclined to think that that 
 *rant gave Virginia no jurisdiction beyond that which she had reserved 
 ay the deed of cession. But if she has so obtained jurisdiction, it is 
 Decause the act or thing, over which jurisdiction is given, was commit¬ 
 ted upon the Ohio river: and it seems that the same reasoning, seeing 
 hat Virginia had retained the Ohio river to herself, would carry the 
 .erritorial to the same extent with her concurrent jurisdiction. That 
 Virginia intended to retain jurisdiction over the whole river, is mani- 
 est from the fact that she conferred concurrent jurisdiction upon no 
 Dther state until after the adoption of the constitution of the United 
 States, when all fears of a dissolution of the Union were dispelled. 
 
16 
 
 [ Doc. No. 17. ] 
 
 There would be no difficulty in giving the deed-of cession the con¬ 
 struction here contended for, were it not for the opinion of the supreme 
 court of the United States in the case of Handly's lessee v. Anthony 
 fy al. 5 Wheaton p. 374. I propose, in a concise manner, to examine 
 that opinion. The first thing to be observed is, that it was not neces¬ 
 sary for the court, in order to decide that case, to ascertain the boun¬ 
 dary between Indiana and Kentucky; it being clear that the land in 
 controversy belonged to the main land of Indiana, and that it was par¬ 
 tially separated from the other main land at high water by a bayou 
 making out of the Ohio river and running into other watercourses and 
 again emptying itself into the river. As well might it be contended 
 that the making a canal through in the same direction would have de¬ 
 prived Indiana of her jurisdiction. It also appeared that the govern¬ 
 ment of the United States ever after the cession, and Indiana after she 
 had been formed into a state, had extended their laws and exercised 
 jurisdiction over the land in controversy, and Kentucky had never ex¬ 
 tended her laws over it or claimed any jurisdiction over persons or pro¬ 
 perty residing on it. In order to shew that it was necessary, for the 
 purpose of deciding the case, to ascertain the boundaries of Indiana 
 and Kentucky, the opinion of the judge below is relied upon. But 
 this surely cannot mend the matter; because, if it were not necessary 
 for the court below to decide that question, its having done so could 
 not create a necessity for the supreme court to decide it. But what is 
 decided by that case ? Nothing except the rights of the parties to the 
 land in controversy. It does not establish the boundary line between 
 Kentucky and Indiana. Neither Kentucky, Virginia, Indiana not 
 Ohio is bound by it. By the opinion of the supreme court it is con¬ 
 ceded that Virginia intended to reserve to herself the river Ohio; but 
 in ascertaining what the river is, it did not follow the definition giver 
 by the writers on international law, nor any other definition that I have 
 been enabled to discover, but seemed arbitrarily to confine it to the 
 lowest stage of the water, and by so doing, one third if not one hal: 
 of the entire bed of the river, which is covered with water ten month; 
 in the year, is decided to be no part or portion of the river. The chie: 
 justice says, “in pursuing this inquiry, we must recollect it is not the 
 bank of the river, but the river itself, at which the cession of Virginir 
 commences;” meaning, as I suppose, the water of the river at its low 
 est stage. Whether this be correct or not, will depend on the questior 
 whether the word river is a compound idea, consisting of banks, bet 
 and water. If this idea of a river* be correct, then, if this reasoning 
 be correct, commencing at the banks would be commencing at tht 
 river. But even suppose it should commence at the water; is it no 
 
 # Ao/e by the judge. It will be readily seen that Virginia, in reserving the river tc 
 herself, must of necessity have included the opposite bank to high water mark, be 
 cause, in setting apart the southeastern shore and the water on the opposite shore t< 
 the lowest mark, this could not be the river, or the whole river, but only an indeterrni 
 nate and undetermined part; for in the very nature of the river under discussion, th< 
 water never recedes to any given point any two years alike. She must have contempla 
 ted a reservation of the whole river, in order to grant the right of navigation, which sh 
 could not have done unless the exclusive property in and jurisdiction over the entir 
 river had been hers. 
 
17 
 
 [ Doc. No. 17. ] 
 
 proper that it should be placed at that point where the water usually 
 stands for nine months in the year? The chief justice quotes the fol¬ 
 lowing passage from Yattel: “ If a country which borders on a river 
 has no other limits than the river itself, it is in the number of territo¬ 
 ries that have natural or indeterminate limits, and it enjoys the right of 
 alluvion.” And he then proceeds to say, “ Any gradual accretion of 
 land, then, on the Indiana side of the Ohio would belong to Indiana; 
 and it is not very easy to distinguish between land thus formed and 
 land formed by the receding of the water.” This quotation and argu¬ 
 ment is used to establish the low water mark as the boundary. Let 
 us examine this doctrine of alluvion somewhat in detail, and see what 
 :onsequences will result from it. 
 
 In YattePs Law of Nations, ch. 22, p. 181, the proposition is dis¬ 
 tinctly asserted that alluvion can in no manner affect the right of pro¬ 
 perty in the river; for, says the writer, “ As soon as it is established 
 that a river separates two territories, whether it remains common to the 
 inhabitants on each of its banks, or whether each shares half of it, or 
 whether, in short, it belongs entirely to one of them, their rights with 
 respect to the river are no ways changed by the alluvion.” Thus the 
 loctrine of alluvion can have no possible bearing upon a question of 
 boundary; for it depends upon the priority of claim or right, whether 
 the line shall be the middle of a river, or to the opposite shore from the 
 state or kingdom that is asserting its jurisdiction. 
 
 It is true that if by a slow and gradual process land was formed on 
 the Ohio side, and in fifty years the river should be thrown a mile or 
 more upon the Virginia territory; or if the river should gradually and 
 imperceptibly recede, so as to leave its original bed, and thus form a 
 new bed upon the territory of Virginia, still the river would be the line, 
 and the land thus deserted by the river would be the property of Ohio. 
 But if at the end of fifty years the river commenced gradually to re¬ 
 turn, and in the course of time did return to its ancient bed, the line 
 between the states would still follow the river, and the land formed or 
 deserted would belong to Virginia. Now apply this principle to the 
 gradual recession of the Ohio river during the summer months, as it 
 was applied by the supreme court to shew that the low water mark 
 was the true boundary, and a very different result follows to that ar¬ 
 rived at by the court; for if the line follows the water as it recedes to 
 its lowest point, it would return with it when the water covered its 
 bed and filled its channel. But in truth the doctrine of alluvion and 
 recession cannot be applied in the rise and fall of rivers. The acces¬ 
 sion of the water to any mark cannot prejudice the boundary line, or 
 the possession and appropriation of the river; for, says Vattel, (Law of 
 Nations, ch. 22, p. 180,) “ If a river leaves its bed, whether it be dried 
 up, or whether it takes its course elsewhere, the bed belongs to the 
 master of the river; for the bed made part of the river, and he who 
 bad appropriated to himself the whole, had necessarily appropriated to 
 himself the parts.” Again, in speaking of the river, he says : “ But if, 
 instead of its being gradually and progressively displaced, the river, by 
 in accident merely natural, turns entirely out of its course and runs 
 into one of the two neighbouring states, the bed it abandons must 
 
 3 
 
18 
 
 [Doc. No. 17.] 
 
 serve for the boundary ; and it belongs to the master of the river.” 
 Therefore, no matter how low the water is or ever recedes, it does not 
 affect the boundary, and consequently cannot defeat the power claim¬ 
 ing jurisdiction to the opposite bank. In Marten’s Law of Nations, 
 ch. 4, sec. 3, p. 159, the doctrine is emphatically settled, that “ a na¬ 
 tion may be understood as lawfully occupying the river on its frontiers, 
 even to the opposite banks. But if these banks are occupied by ano¬ 
 ther nation, and if it be impossible to determine which of the two has 
 had the prior possession, it ought to be presumed that both took pos¬ 
 session at the same moment, and consequently met in the middle.” 
 Thus Virginia having established her title by priority of possession, 
 and not having ceded the same, she must of necessity have retained 
 her jurisdiction, in accordance with the law of nature and of nations, 
 to the opposite side of the Ohio river, at a point not less than high wa¬ 
 ter mark within its banks. And the only exception to this rule is the 
 event of two states settling on the river at the same time, or having 
 had possession so long that it is impossible to determine which settled 
 first upon its shores. On all other occasions the rule is inflexible. 
 
 In construing the deed of cession, the supreme court seems not to 
 have adopted the rules of construction of the national, natural, or com¬ 
 mon law, but to have fixed a rule of convenience, not to Virginia, but 
 to the new states to be formed out of the territory ceded. After 
 speaking of the cession, it says: “ And this territory, according to ex¬ 
 press 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.” 
 
 It cannot be doubted that Virginia, to some extent, had the conve¬ 
 nience of the future population of the new states in view. But that 
 convenience was subordinate to the interest and protection of her citi¬ 
 zens. One thing is certain, that she intended to extend her own mu¬ 
 nicipal regulations over every person who navigated the Ohio river. It 
 is said, that it is expressly stipulated that new states should be formed 
 out of the territory ceded. It is equally true that Virginia knew that 
 in a short time those states might be hostile. She certainly knew they 
 would be states in which slavery would not be tolerated. Is it not 
 probable that she retained her dominion over the whole river to protect 
 her slave property? She must have known that a slave entering a 
 country in which slavery was not established by law and in which the 
 common law prevailed, with or without the consent of the master, 
 would be free. But the states having engaged in the constitution tc 
 deliver up slaves who had escaped from their owners, Virginia nc 
 doubt believed that no danger would result to that property by giving 
 other states concurrent jurisdiction over the river. But if Virginia did 
 not intend to reserve the whole river to herself, but fixed the boundary 
 to the low water mark on the northwestern side, then she has failed tc 
 afford protection to her citizens navigating the river. If the jurisdic¬ 
 tion of Ohio commences at low water mark, it is an exclusive jurisdic¬ 
 tion to all the territory northwest of it, which jurisdiction cannot be 
 
19 
 
 [Doc. No. 17.] 
 
 affected by high or low water; and therefore a citizen of Virginia 
 navigating the river in his own boat, with his own slaves, and inten¬ 
 tionally passes between high and low water mark on the Ohio side, 
 the slaves would become instantly free; or if he had a ferry established 
 from Virginia to the Ohio shore, and should send his slave with it 
 across the river, the moment the boat crossed the low water mark or 
 struck the Ohio shore, his property in the slave would cease. But it 
 is contended this would not be so. Let us examine it. No one can 
 doubt, were it not for the provision of the constitution before alluded 
 to, that if a slave escaped from his master into any of the free states, 
 he would become instantly free. But the right of the master to the 
 slave is only protected when he escapes from possession and enters a 
 free state without his consent. The instant the master consents to his 
 entering the free state, the constitution no longer protects his property 
 in the slave, but the law of the state which he enters operates and sets 
 him free. In order to avoid this conclusion, it is contended that the 
 concurrent jurisdiction of Virginia extends to high water mark, not¬ 
 withstanding her territorial jurisdiction extends only to low water 
 mark. It seems to me, such a position cannot be sustained ; because, 
 if Virginia granted from low water mark, she has conferred exclusive 
 jurisdiction upon the United States (which has been transferred to the 
 state of Ohio) over the whole territory from the place of its commence¬ 
 ment. And neither the United States nor Ohio have conferred any 
 jurisdiction upon Virginia over the territory ceded, nor has Virginia 
 asked that such jurisdiction should be conferred upon her. She has 
 not made it the condition of any right granted to Ohio. It therefore 
 cannot result from implication. Therefore, if the line is fixed at low 
 water mark, and a citizen of Virginia voluntarily passes within that 
 line, he is as much under the jurisdiction and amenable to the laws of 
 Ohio as if he were at her seat of government. But it is said that 
 having the right to navigate the river protects the property of the mas¬ 
 ter in the slaves engaged with him in such navigation. This cannot 
 be so, because the right to navigate confers no jurisdiction. Where 
 one state or nation confers upon the citizens of another the right to 
 navigate its rivers, the citizens so navigating by such permission are 
 under the jurisdiction and amenable to the laws of the sovereign whose 
 'ivers they are so navigating. The citizens of Virginia have a right 
 to navigate all the rivers within the boundaries of Ohio, yet it would 
 hardly be supposed they would have a right to employ their slaves in 
 such navigation and retain their property in them as slaves, against the 
 provision of the laws of Ohio. Every citizen of the United States 
 has the right to navigate the James river, and no one will contend that 
 so navigating it they are not subject to the laws of Virginia. 
 
 As to the argument of inconvenience to Ohio, it is not necessary to 
 say any thing further than to observe that most of the inconveniences 
 complained of would happen whether the line was fixed at high or 
 low water mark. Neither will it be necessary to ascertain what her 
 ights to the river would be as the owner of one of its borders ; be¬ 
 cause every right that she could ask is conferred upon her by giving 
 tier concurrent jurisdiction. 
 
20 
 
 [ Doc. No. 17. ] 
 
 The inconvenience supposed to arise from the power of individuals 
 to locate the land between high and low water mark on the Ohio side 
 cannot exist, because, if the space between the banks be decided to 
 be the bed of the river, it would not be subject to location. 
 
 It seems to have had great influence with the supreme court in es¬ 
 tablishing the low water mark, that it was the most convenient and 
 easily ascertained boundary. It seems to me that no boundary could 
 have been fixed that could be more uncertain, or that could not be 
 more easily ascertained. Does it mean the lowest point to which the 
 river ever recedes ? By some it is said not, but ordinary low water. 
 Now what is ordinary low water ? Does it mean the lowest point to 
 which the river ever has fallen during seasons not remarkable for drought 
 or for the quantity of rain that may have fallen in any given year? 
 If so, there are no two years in which the line could have been the 
 same. But the reasoning used to fix it at the low water mark will 
 carry it down to the very lowest point to which the water ever rece¬ 
 ded. The argument by which the line is carried to ordinary low -water 
 mark is, that the river recedes from a part of its bed for three months, 
 from another part one month, and from another a week in the year, 
 leaving the sand and gravel uncovered by water: it thereby loses its 
 character of being the bed, and consequently a part of the river, and 
 acquires the character of land freed from the river. It would seem 
 therefore to follow that after the river had fallen to its ordinary point 
 of low water, and still continued to fall for a month, leaving a consi¬ 
 derable portion of its bed bare between the ordinary low water mark 
 and the edge of the water, with the same reasoning would it not pro¬ 
 perly be denominated main land and forming a part of the territory 
 of Ohio ? It is a fact well known that at low water there are many 
 narrow bars commencing at the Ohio shores and running more than 
 half way across the entire river. In accordance with the opinion ol 
 the supreme court, these would be a part of the territory of Ohio and 
 under her exclusive jurisdiction, and their afterwards being covered 
 by water would or could not change that jurisdiction. Can it be pos¬ 
 sible that Virginia for a single moment intended to establish any such 
 line ? In practice it would be impossible to ascertain the low watei 
 line, because on this trial no man could tell where the low water marli 
 was at the place where the crime was committed, yet almost all could 
 tell the high water line. I therefore conclude that the high watei 
 mark, while the river is contained within its ordinary banks, is much 
 the most convenient and easily ascertained boundary. 
 
 Upon the whole, I am of opinion that the circuit superior court o 
 law and chancery for Wood county had jurisdiction to try the offence 
 set out in the indictment. 
 
 Opinion of Robertson, J. The various questions adjourned b) 
 the circuit superior court of Wood county for our opinions may b( 
 resolved into one : Is the place in which the criminal offence chargee 
 in the indictment is found to have been committed, within the juris 
 diction of Virginia ? 
 
21 
 
 [ Doc. No. 17. ] 
 
 It is a question purely legal. Regarding it in that aspect, I shall 
 pass without comment all arguments of a political complexion, and 
 especially those upon the exciting topics of slavery and abolition. 
 
 I shall also decline all examination of the original title of Virginia 
 to the territory northwest of the river Ohio. The occupation of that 
 territory by this state, and legislation over it, prior to its cession to the 
 United States, and indeed the terms of the cession itself, would seem 
 sufficient evidence of such title in the present case, and perhaps in 
 any case between Virginia and Ohio ; the latter having no claim ex¬ 
 cept under that cession. But independently of these considerations, 
 the question is concluded by the solemn declaration of this state in 
 its sovereign capacity, contained in the constitution of 1776. To 
 that instrument all the departments of our state government owe their 
 existence and acknowledge implicit obedience. The judiciary at least 
 have no power to change the limits of the commonwealth proclaimed 
 in her organic law. The result of a decision in conformity with the 
 pretensions of the defendants, if such a decision were in a legal sense 
 possible, would be not merely to dismember the state, but to annul 
 the commission of every judge of this court residing in the transalle- 
 ghany country, the title to which, it is argued, stands upon the same 
 footing with that to the northwestern territory ; and thus, in the 
 same breath in which we announce our judgment, to proclaim its in¬ 
 validity. 
 
 One further preliminary remark : 
 
 We sit here as a state court, in the exercise of our ordinary muni¬ 
 cipal jurisdiction over individuals charged with a criminal offence. 
 Our decision cannot settle definitively the question of boundary— 
 certainly not as against Ohio, and by consequence, it would seem, not 
 as against Virginia. Still, in the particular case, and as a precedent or 
 rule in others of a similar nature, be that decision what it may, it 
 must determine the rights and vitally affect the interests of citizens 
 claiming under these states respectively. And thus viewing it, I 
 feel it due to myself to assign the reasons which have led my mind to 
 its conclusions. 
 
 The propositions contended for on the part of the defendants are, 
 that the states of Ohio and Virginia are hounded by the middle of 
 the channel of the Ohio river , or at the least by the low water mark 
 on the northwestern side. For the commonwealth it is urged that the 
 banks of the river , or high water mark , constitute the true boundary ; 
 or if not , the edge or margin of the water for the time being , ivhere- 
 ver that may be. 
 
 The first proposition of the defendants, that insisting on the middle 
 of the channel, is based upon the supposition that Virginia had no ori¬ 
 ginal title to the Ohio river, or territory beyond it. The cession is 
 treated as a mere compromise, whereby Virginia yielded that to which 
 she had no superior right. This supposed defect of title has been 
 urged upon the one side and denied upon the other, in arguments of 
 great labour and ability; but for reasons already stated, I deem it un¬ 
 necessary and improper to investigate that question; and upon this 
 point I believe no difference of opinion exists among the judges. 
 
22 
 
 [Doc. No. 17.] 
 
 Rejecting this proposition, then, as wholly without foundation, and 
 assuming, as we are bound to do, that the northwestern territory and 
 the river Ohio itself were in the limits of Virginia at the time of her 
 cession to the United States, the next enquiry is, Does the boundary of 
 the state of Ohio extend to low water mark on the northwestern side 
 of the river, and to that limit exclude the jurisdiction of Virginia? 
 
 The supreme court of the United States, it is said, have so decided 
 in effect, if not expressly, in the case of Handley's lessee v. Anthony; 
 and upon the authority or strength of that case, mainly if not exclu¬ 
 sively, depends the great question involved in this. The decision is 
 not pressed upon the court as one conclusively controlling our judg¬ 
 ment. Were such its effect, it would have been useless indeed to ad¬ 
 journ to us the questions under consideration, and a waste of time to 
 discuss or consider them. Those questions have been propounded for 
 our opinions, and we must decide them, directed by the light, imper¬ 
 fect as it may be, of our own understandings, and undazzled by the 
 lustre of great names. The judgment of the supreme court undoubt¬ 
 edly is entitled to the utmost deference: but conceded as it is not to 
 be of binding authority in the present case, and controverted as it has 
 been by counsel on both sides, we cannot, if we would, decline the 
 duty of examining with freedom as well as candour the reasons upon 
 which it is founded. Such an examination seems demanded at our 
 hands, not merely because of the important interests involved, but 
 because the propositions asserted are exceedingly questionable, if in¬ 
 deed they are not a plain innovation upon the established doctrines of 
 the law. 
 
 The matter in controversy was the right to a tract of land claimed 
 by the opposing parties respectively under conflicting grants of Ken¬ 
 tucky and Indiana. This brought up necessarily the question of boun¬ 
 dary between those states, which in principle I concede is the same 
 with that between Virginia and Ohio. The court in which the trial 
 was had instructed the jury, that admitting that the boundary of 
 Kentucky included all the islands of the Ohio river and extended to 
 the northwestern bank of the river , yet no land could be called an is¬ 
 land of that river unless it was surrounded by the water of the Ohio 
 at low water mark; and that to low water mark only on the western 
 or northwestern side of the Ohio did the boundaries of the state of 
 Kentucky extend. 
 
 The supreme court sustained the instructions. The chief justice de¬ 
 livered the opinion. He remarked that the question depended chiefly 
 upon the land law of Virginia and her deed of cession. The only re¬ 
 ference, however, he gives to the land law, is to the clause prohibiting 
 locations upon the northwestern side of the river Ohio, contained in 
 the act of 1779, establishing the land office. 10 Hen. Stat. p. 50. 
 This prohibition he thinks was made with a view to the questions 
 then agitated relative to the unsettled territories within the charters of 
 particular states, which resulted in cessions by them to the United 
 States, and among others, in that by Virginia. It was intended, he 
 says, by Virginia when she made this cession, and most probably when 
 she opened her land office, that the great river Ohio should constitute 
 
23 
 
 [ Doc. No. 17. ] 
 
 1 boundary between the states which might be formed on its opposite 
 banks ; and “ this intention,” he adds, “ ought never to be disregarded 
 in construing this cession.” 
 
 The motives and intentions of Virginia may have been such as are 
 inferred: their bearing upon the particular question, however, seems 
 very remote. None doubt that by the cession itself the river is con¬ 
 stituted a boundary. But the question remains, does that of necessity 
 ^r by a sound construction make low water mark the line of separa¬ 
 tion ? Surely the prohibition of all entries on the northwest side of 
 the Ohio river justifies no such conclusion. Nor is it warranted, I 
 think, by any other provision of our land law, existing at the time of 
 the cession. 
 
 The well known rule of the common law, which was and is now 
 the law of Virginia, except so far as altered by statute or inapplicable 
 to the country, is that lands bounded by the sea, or on navigable rivers 
 where the tide ebbs and flows, extend to high water mark only; but 
 oounded on rivers or upon the margin, or along the same, above tide¬ 
 water, go to the centre of the stream. 
 
 So far as regards rivers and creeks not navigable, the rule last men¬ 
 tioned has always been considered and still is the law of Virginia. 4 
 Dali R. 441. 1 Rand. R. 417. 3 Rand. R. 33. 6 Rand. R. 245. 
 
 But the beds of all navigable streams were considered as the proper¬ 
 ty of the commonwealth, for the public benefit; and in the case of 
 Home v. Richards, 4 Call R. 441, (as judge Green remarks, 3 Rand. 
 36,) the court determined they were not grantable even before the 
 revised act of December 1792, ch. 24. The 6th section of that act 
 incorporated the act of May 1780, ch. 2, “ to secure to the public cer¬ 
 tain lands heretofore held as common,” which prohibited locations of 
 lands ungranted by the former government on the seashore , or on the 
 shores of any river or creek in the eastern parts of the commonwealth, 
 sither under surveys previously made or to be made in future. The 
 revised act of 1792 included also the beds of such rivers and creeks in 
 the same prohibition. In 1802 the prohibition was extended to the 
 .western waters; Sess. Acts 1801-2, ch. 8. After reciting in the pre¬ 
 amble that it had been represented to the general assembly that many 
 persons had located, and laid claim in consequence of such location, to 
 the banks, shores and beds of rivers and creeks in the western parts of 
 the commonwealth, which were intended and ought to remain as a 
 common to all the good people thereof, the act declares “ that no grant 
 issued for the same, either in consequence of any survey already made 
 or which may hereafter be made, shall be valid or effectual in law to 
 pass any estate or interest therein.” 
 
 I have found no legislation directly recognizing low water mark, 
 .except a resolution of the grand assembly in 1679, and the compara¬ 
 tively late act of February 1819. The resolution was inserted in 
 Hening’s general collection, taken from a manuscript copy of the laws. 
 
 2 Hen. Stat. 456 and note. It seems rather a judgment than a law, 
 pronounced on a petition of an individual; though it is called a decla¬ 
 ratory order, and in general terms declares that “ every man’s right in 
 vertue of his pattent extends into the rivers or creeks soe farre as low 
 
24 
 
 [ Doc. No. 17. ] 
 
 water marke,” Ac. Neither the resolution itself, nor the principle it 
 asserts, is to be found in any of the numerous editions or revisals of 
 our laws. If it was ever law, I regard it as long obsolete, or as re¬ 
 pealed by the act of 17S0. 
 
 The other act, that of February 1819, (acts of 1819, ch. 28,) re¬ 
 citing that doubts exist how far the rights of owners of shores, on the 
 Atlantic ocean, the Chesapeake bay, and the rivers and creeks thereof, 
 extend,—declares that “ hereafter the limits or bounds Ac. shall extend 
 to ordinary low water mark” Ac. with this proviso, among others, that 
 nothing in the act shall be construed to repeal the 6th section of the 
 act concerning the land office; meaning the act of 1792. 
 
 It is needless at present to enquire into the reasons (though perhaps 
 satisfactory ones might readily be suggested) why the legislature con¬ 
 fined the prohibition in the act of 1780, or the privileges of the act of 
 February 1819, to owners of lands on the eastern waters; or to at¬ 
 tempt to reconcile the apparent conflict between the act of February 
 IS 19, and that of December 1792, which last is declared not to be re¬ 
 pealed, and which was incorporated in the revised bill of March IS 19, 
 together with the prohibition relating to the western waters, contained 
 in the act of 1S02. It is enough to say, that as the land law of the 
 state was understood and expounded at the date of the cession, no 
 grant of land on the waters of the state, eastern or western, navigable 
 or unnavigable, carried the right of the owners to low water mark. 
 
 Had the supreme court, then, taken as their guide the land law of 
 Virginia, embracing the common law of England as it was originally, 
 or as modified, they must have adopted either high water mark, or the 
 centre of the stream, as the proper line of demarcation: unless the 
 cession contained some express exception, or clear and unequivocal de¬ 
 claration to the contrary. So is the doctrine as laid down by chan¬ 
 cellor Kent, 3 Kent's Comm. 428. But the cession, and the cotempo- 
 raneous construction put upon it, repel all pretension on the part of 
 Ohio to go to the centre of the stream. This manifestly must have 
 been the opinion of the court: and there being no express designation 
 of any other line, the legal inference—that which alone is consistent 
 with the law referred to and with the deed—is, that the northwestern 
 bank of the river, in other words high water mark, was the true boun¬ 
 dary. 
 
 But the supreme court, it may be said, must have considered that 
 the question being one relative to the boundaries of independent states, 
 should be governed by the law of nations. That too, I think, is the 
 opinion of this court; and I entirely concur in it. 
 
 Pursuing the enquiry' - , doubtless in this view, the chief justice re¬ 
 minds us emphatically that it is not the bank of the river , but the river 
 itself, at which the cession of Virginia commences. After quoting the 
 words of the grant describing the territory, and stating its object to be 
 to create independent states, he repeats that these states were to have 
 the river itself, wherever that may be, for their boundary. This, he 
 says, is a natural boundary, and Virginia, in establishing it, must have 
 had in view the convenience of the future population of the country 
 He then adverts to the doctrine of the writers on national law. “ When 
 
25 
 
 [Doc. No. 17.] 
 
 a great river,” he says, “is the boundary between states, if the origi¬ 
 nal property be in neither, and there be no convention respecting it, 
 each holds 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.” He then remarks, “ the river, how¬ 
 ever, is its boundary:” and Vattel, (book 1, ch. 22, <§> 268,) is quoted 
 to shew that “ in case of doubt, every country lying upon a river is 
 presumed to have no other limits but the river itself: because nothing 
 is more natural than to take a river for a boundary, when a state is es¬ 
 tablished on its borders ; and whenever there is a doubt, that is always 
 to be presumed which is most natural and probable.” 
 
 No comment is made on the passage from Yattel. But I cannot for¬ 
 bear remarking that Yattel, in speaking of a case of doubt, must have 
 had reference to cases where the question was whether the limits of 
 the country extended to the river, and not whether they extended to 
 any designated part or line. For he is treating of the doctrine of al¬ 
 luvion, and proceeds immediately to observe, (§ 269,) that as soon as 
 it is established that a river separates two territories, whether it remains 
 common to each, or whether each shares half, or whether it belongs en¬ 
 tirely to one, their rights with respect to the river are no ways changed 
 by the alluvion. He Avas not considering the question whether high 
 or low water, or the middle of the stream, was in doubtful cases the 
 true boundary; he had already said 266) that in such cases the li¬ 
 mit was the centre of the stream. Nor Avas the case before the su¬ 
 preme court one of doubt as regards the original title to the river. 
 They recognized that title as in Virginia. The purpose of the quota¬ 
 tion could not have been to represent Vattel as authority for the doc¬ 
 trine held by the court in establishing Ioav water mark: it was, proba¬ 
 bly, to sheAv that Yattel spoke, as the chief justice had repeatedly done, 
 of the river itself as a boundary, and to infer from that expression, or 
 from the doctrine of alluvion, an argument in favour of Ioav Avater 
 mark. But the frequent repetition of the phrase in question affords no 
 solution of the difficulty. What is the extent of this boundary, the 
 river itself, is still the question : and to that the chief justice recurs in 
 a subsequent part of his opinion. 
 
 To the passage just cited is added the follotving, from a preceding 
 paragraph of the same author on the subject of alluvion : “ If the coun¬ 
 try Avhich borders on a river has no other limits than the river itself, it 
 is in the number of territories that have natural or interminate limits, 
 and enjoys the right of alluvion.” (§ 268.) 
 
 FolloAving up this idea, the chief justice says : “ Any gradual accre¬ 
 tion of land, then, on the Indiana side of the Ohio Avould belong to In¬ 
 diana; and it is not very easy to distinguish between land thus formed 
 and land formed by the receding of the Avater. If, instead of an an¬ 
 nual and somewhat irregular rising and falling of the river, it was a 
 daily and almost regular ebbing and floAving of the tide, it Avould not 
 be doubted that a country bounded by the river would extend to Ioav 
 water mark. This rule has been established by the common consent 
 of mankind. It is founded on common convenience.” 
 
26 
 
 [Doc. No. 17.] 
 
 Certainly, if the proposition be correct that a country bounded by a 
 tidewater stream would without doubt extend to low water mark, there 
 would be a strong argument from analogy, to maintain the claim to low 
 water mark on a navigable stream above the tide. But I have been 
 unable to find the rule said to be so universal, maintained by any court 
 or writer of authority, prior to the case of Handly’s lessee v. Anthony. 
 If there be any such, it seems also to have escaped the vigilance of coun¬ 
 sel. But were the rule as stated, on tidewaters, the argument would rest 
 solely upon the reasonableness of applying the same rule to navigable 
 waters above tide, and not upon any analogy with the doctrine of al¬ 
 luvion. I am at a loss to understand the application of that doctrine 
 to the proposition maintained by the supreme court. If the reason 
 why Indiana should have the land between high and low water marks 
 be the same which governs the right to alluvion, then it would seem 
 to follow that as land formed by gradual accretions would be lost by 
 gradual encroachments, so land gained by the annual receding of the 
 waters between high and low water marks would be lost by their al¬ 
 ternate annual encroachments. But there is a plain reason for the doc¬ 
 trine of alluvion, wholly unconnected with the question whether high 
 or low water mark, or the channel, be the proper boundary, and which 
 forbids its application to the diurnal or annual rising or falling of all 
 waters. The river may have one master, the land beside it another. 
 If the land be augmented, the increase should belong to the land 
 owner, as an incident to the thing of which it becomes a part. If the 
 water encroach, it should belong to the owner of the river in its aug¬ 
 mented condition, for the same reason. But the doctrine of alluvion, 
 though applicable to gradual accretions, is not applicable to the land on 
 tidewater, over which the tide ebbs and flows; and cannot therefore, 
 by analogy, be applied to that on other streams, between the lines of 
 their annual swell or depression. The right, if it exist, must rest upon 
 some other foundation: and accordingly the chief justice, in this part 
 of his opinion, after dwelling on the inconvenience of any other rule 
 goes on to say—“ 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 difficulties 
 in attempting to draw any other line than the low water mark.” 
 
 Here we find the end and aim of the expression, so frequently re¬ 
 peated, that the rivet' itself is the boundary. The idea attached by the 
 chief justice to the term river is, that it is the stream only as it exists 
 when at low water, which constitutes what he terms the main or per¬ 
 manent river. 
 
 I shall not stop to comment on the singularity of the idea, that the 
 river when it is reduced to its smallest dimensions—a condition ir 
 which it remains for a transient period—should be considered as the 
 main or permanent river. The idea does not, I think, enter into the 
 mind of any one thinking or speaking of a river or the main river, tc 
 conceive it as the stream only contained between its lines of greates 
 depression ; or in other words, as the stream at low water only. Cai 
 any thing be meant by the terms, main or permanent river, more thai 
 the term river itself imports? If so, the term as usually defined o 
 
27 
 
 [Doc. No. 17.] 
 
 understood certainly conveys no such idea. A river is defined to be a 
 stream of no precise dimensions, but larger than a brook: and it is that 
 stream in all its conditions and stages; equally the river when reduced 
 even far below ordinary low water, or when full to the top of its banks, 
 or even when swelled by freshes beyond them. Nor does this notion 
 of a river, on which the argument has been in part built up, that it is 
 the stream within the low water marks, find any colour from the wri¬ 
 ters on national law. They tell us, a river is not to be considered as 
 so much water merely, but as water flowing in a particular channel 
 and enclosed in certain banks. Grotius De Jure Belli ac Pads , book 
 2, ch. 3, $ xvii. 1. The water, the bed, and the banks all enter into 
 the idea of a river. The water alone is not the river: we speak of 
 the water of the river —the bed of the river, &c. And the banks, it 
 may be material to remark, according to the same author, (Ibid, book 
 2, ch. 8, <§> ix. 1,) are the outer part of the bed, that is to say, of the 
 space in which the river has its course naturally. 
 
 Had the river, then, eo nomine , been made the boundary, with 
 words or intention sufficiently explicit to exclude the state of Ohio 
 from going to the middle of the stream, it would have been the river, 
 not according to this contracted notion, but in its entire state—the river 
 between its natural banks; in other words, to high water mark. 
 
 This is so upon the reason of the thing, I think, as well as upon 
 authority. 17 Mass. Rep. 298. For the bed of the stream and its banks 
 (I speak now more particularly of streams above tidewater) though not 
 identical, are, as appears from Grotius, coterminous: and the boundary 
 of a tract of land, if this be so, would be the same,—supposing it not to 
 extend to the channel, nor to be expressly limited by low water mark,— 
 whether the boundary were declared to be the river itself, or the river 
 margin, or the bank, which is its margin. 
 
 It is true that the cession does not declare in so many words the 
 northwestern bank to be the boundary. Neither does it use the phrase 
 so repeatedly used in the opinion under consideration—“bounded by 
 the river itself ” It grants the tract or territory lying “to the north¬ 
 west of the river.” It is safer always, in construing a deed, to keep 
 to its terms than to resolve them into others. Now these terms, as al¬ 
 ready said, neither in conformity with the law of Virginia, the com¬ 
 mon law of England, nor the law of nations, nor according to their 
 ordinary signification or import, are synonymous with the words “ be¬ 
 yond loio water mark on the northwestern side of the river.” And I 
 humbly conceive, in this instance the acute and powerful mind of the 
 chief justice, in the pursuit of a favourite idea, has been led to a con¬ 
 clusion not only unsupported by preceding authority, but seemingly di¬ 
 rectly at variance with it. Looking to the particular phraseology, and 
 regarding the bed as part of the river up to its banks, it would seem a 
 strained construction to say that land to the northwest of low water 
 mark is land lying to the northwest of the river. It is difficult to un¬ 
 derstand how any part of the river can be said to be to the northwest 
 of the river. We may say, Wood county is in the northwestern part 
 of Virginia, but we cannot say it is to the northwest of (or from) Vir¬ 
 ginia. 
 
28 
 
 [ Doc. No. 17. ] 
 
 If a river leaves its bed, Yattel (Law of Nations, B. 1, ch. 22, $ 5,) 
 says the bed belongs to the master of the river. For the bed makes 
 a part of the river , and he who had appropriated the whole had neces¬ 
 sarily appropriated the parts. If then the Ohio were a small stream, 
 and should dry up, or should change its channel, the whole bed, to 
 the banks, would revert to Virginia, if the fact, as conceded by the 
 chief justice, be admitted, that Virginia retained the river, and the law 
 be as Vattel has stated it. If on the other hand the law be as decided 
 by the supreme court, the grant of the land on the northwestern side 
 extended to low water mark notwithstanding the river was retained 
 by Virginia, and in case the channel should be deserted, Ohio would 
 still hold to low water mark. Now the principle, I apprehend, does 
 not vary with the size of the stream ; and if not, it is difficult to re¬ 
 concile the doctrine of the supreme court with that of Vattel and 
 Grotius. 
 
 Let us pass to the argument founded on inconvenience. 
 
 This argument is rarely resorted to, and never properly except in 
 cases of great doubt, or where the inconvenience is so extreme as to 
 raise a presumption that it was not contemplated or intended by the 
 parties. In the latter case the rule, founded in reason, obtains not only 
 in the municipal codes probably of all civilized states, but in the law 
 of nations, that the grant of a thing implies the grant of all that is 
 essential to its enjoyment; or, as it is expressed by a modern writer 
 on international law, (Wheaton, Elements of International Law, part 
 2, ch. 4, 13,) the principal right draws after it the incidental right 
 
 of using all the means necessary to secure the enjoyment of the prin¬ 
 cipal right itself. It is necessary therefore to enquire whether the in¬ 
 conveniences suggested or supposed in this case are embraced by the 
 rule, and if so, whether they justify or require the remedy applied by 
 the supreme court. 
 
 The object of the cession being to create independent states, the 
 chief justice suggests that Virginia, in establishing the river as a 
 boundary, must have had in view the convenience of the future popu¬ 
 lation ; and afterwards observes—“ Even when a state retains its do¬ 
 minion over a river which constitutes the boundary between itself and 
 another state, it would be extremely inconvenient to extend its domi¬ 
 nion over the land on the other side which was left bare by the re¬ 
 ceding of the water.” This may be true. But the question here is 
 not whether such dominion retained by Virginia would be convenient 
 or inconvenient to the states on the opposite side of the river, but 
 whether she had the right to retain it, and if so, whether that be the 
 true construction of her grant ? Or, more definitely, are the inconve¬ 
 niences such as to warrant the presumption that Virginia, in granting 
 the territory “ to the northwest of the river,” meant that it should ex¬ 
 tend into the river to low water mark ? 
 
 What inconveniences were in the view of the court, we are not told. 
 In the argument of the present case, the counsel for the defendants 
 presented them in detail, and made them the subject of an earnest 
 appeal. These alleged inconveniences are substantially as follows: 
 
29 
 
 [Doc. No. 17.] 
 
 That all contracts entered into, all matters, indeed, civil or criminal, 
 occurring on the Ohio side between high and low water mark, (if high 
 water mark be established as the boundary) will be beyond the cogni¬ 
 zance of the courts of Ohio, and within the jurisdiction of Virginia. 
 
 That the possession of the soil between high and low water is es¬ 
 sential to Ohio, not only for purposes of police, but to enable her citi¬ 
 zens to have free access to the river, to erect wharves, steam mills, &c. 
 
 And that if the soil between those lines be in Virginia, land war¬ 
 rants, under her authority, may be laid upon the river shore on the 
 whole line of the state of Ohio. 
 
 Were all these inconveniences as real as I apprehend they are for 
 the most part imaginary, would it follow that Virginia might not have 
 imposed them as the condition of her grant ? If they exist, they re¬ 
 sult from the fact that Virginia retained, as the supreme court admits, 
 ;he river to herself; and so far at least as they are not incompatible 
 with the enjoyment of the thing granted,—the land to the northwest of 
 ;he river,—no court has power to apply a remedy, and, with a view to 
 convenience merely, enlarge the boundary of the one state or contract 
 that of the other. 
 
 Even if the case were one of greater doubt; if the terms of the 
 cession, expounded according to their legal or natural import, did not 
 confine the grant to the northwestern margin or bank of the river, 
 there would be a strong presumption against its extension to low 
 water : and that presumption would be irresistible, if such extension 
 be attended with inconvenience to Virginia, and be not indispensable 
 to the full enjoyment of the principal rights granted to Ohio. Vattel 
 says that “a river is of such great use, that when a nation takes posses¬ 
 sion of a country terminated by a river, it is to be presumed to have 
 intended to reserve the river to itself. This presumption is indisputa¬ 
 ble when it relates to a river extremely large, and the strength of the 
 presumption increases if the river be confined ; and is still greater if 
 the nation has used the river for navigation or fishing.” Now would 
 aot the reasons for presuming a reservation originally, in derogation of 
 the claims of those who might thereafter settle on the opposite side, 
 forbid a presumption in a doubtful case that the original owner intend¬ 
 ed to surrender any part of the river ? Such certainly would be the 
 presumption in the case of a grant to individuals of lands upon the 
 sea-shore (see 3 Kent’s Comm. 432, citing the authority of sir William 
 Scott): and the reason of the presumption equally, I think, if not 
 more strongly, applies to grants upon all navigable streams to other 
 states. The reservation of the river is pro bono publico. So strong is 
 the inference against a grant of its bed or shores, that it has been 
 ioubted whether the legislature or the state could grant them away. 
 4 Call R. 441, Home v. Richards. Such grants (as already mention¬ 
 ed) have been, before the cession, if not from a very early period, pro¬ 
 hibited by statute in Virginia. I will add, that almost from the first 
 settlement of the state, laws were passed, in substance repeatedly re¬ 
 enacted, and continued in force down to the present day, prohibiting 
 all obstructions in the navigable waters of the commonwealth. Act 
 of 1680, 2 Hen. Stat. 484. Act of 1705, 3 Id. 395. Act of 1722, 4 Id. 
 
30 
 
 [Doc. No. 17.] 
 
 111. 2 R. C. of IS 19, ch. 235, ■§> 17-18. Is it not reasonable to infer 
 
 that for the same reason, the prevention of all impediments to naviga¬ 
 tion, a state in possession of a large navigable stream might desire to 
 retain it to itself, and with it the lawful right to remove such impedi¬ 
 ments ? 
 
 But here we are not left to conjecture. It was an admitted fact in 
 the case before the supreme court, that Virginia had retained the 
 river : and the court, by construction, held that to mean the river, 
 not in its entire state from bank to bank, but from low water mark 
 on one side to the same line on the other. 
 
 But have not the inconveniences to Ohio been greatly overrated ? 
 
 As riparian owner, bounded by the high water mark, I apprehend 
 she is clearly entitled under the cession to claim for her citizens free 
 access at all times to the river, the right to erect wharves, and in ge¬ 
 neral to the innocent use of the water; by which I understand is 
 meant every use not inconsistent with the safety and convenience of 
 the state owning the river opposite to her territory, and of other states 
 entitled to its free navigation. Grotius, B. 2, ch. 2, $ 12-14, and ch. 
 3, $ 7-12. Vat tel, B. 2, ch. 9, <§> 126-130, and ch. 10, <§> 132-134. 
 3 Kent’s Comm. 427. Wheaton’s Elements, part 2, ch. 4, <§> 12. Steam 
 mills or other engines, I suppose, would fall under the same rule. But 
 if the effect of placing these between high and low water mark would 
 be to obstruct the free navigation when the river should be full, I pre¬ 
 sume Ohio would have no right to erect them, and the supreme court 
 could not extend her right to low water mark for a purpose so injurious 
 to the original owner of the river, and so incompatible with the inten¬ 
 tion of the grant. So far it seems, for any lawful purpose, the owner¬ 
 ship of the soil is not essential to Ohio. To ask it for any other, would 
 be an unanswerable argument against it. 
 
 Does she require it, then, for purposes of police; for the cognizance 
 of crimes or contracts properly or of right subject to her laws? 
 
 Looking to the objects of the cession, the grant of an extensive ter¬ 
 ritory to be formed into states, it must be readily admitted that all 
 means essential to the existence of the states and the maintenance of 
 their laws within their territorial limits, pass with the grant. But we 
 cannot extend the inference beyond the necessity. We cannot infer 
 jurisdiction beyond the territorial limits: still less can we extend the 
 territory beyond its prescribed limits, in order to bring the jurisdiction 
 within them. Supposing jurisdiction over the space between high and 
 low water essential to the full enjoyment of the principal rights grant¬ 
 ed, still we have no right to presume an intention to grant the soil, un¬ 
 less the soil be indispensable to the exercise of jurisdiction. It may 
 be convenient to Ohio to possess the soil to low water mark,—or to the 
 middle of the channel, with half the bed and islands of the river (which 
 indeed the counsel for the defendants appear to regard as rightfully 
 hers): but as a convenience merely, we have no right to presume it. 
 Courts must expound contracts, but may not alter them. And on the 
 ground of necessity, the presumption, I think, cannot be authorized ; 
 because the requisite jurisdiction may be exercised without the posses¬ 
 sion of the soil. That the soil or domain may be in one state, and ju- 
 
31 
 
 [Doc. No. 17.] 
 
 isdiction, concurrent or exclusive, in another, can admit of no doubt. 
 Mattel, B. 1, ch. 18, $ 105—ch. 23, $ 295—ch. 24, <§> 244. Within 
 :ertain limits, the United States possess jurisdiction over all the states : 
 re t the states possess the soil or domain. The most then that could 
 )e justly presumed in conformity with the principle that gives as inci- 
 lental to a grant all that is necessary to its enjoyment, would be juris- 
 liction over the space in question, and not the soil itself. 
 
 Independently of the legal presumption under the principle just ad¬ 
 verted to, the attention of the court has been called to a clause in the 
 ict of Virginia creating the state of Kentucky; which declares that 
 he respective jurisdictions of Virginia and. Kentucky shall he concur- 
 'ent only with the states that may possess the opposite shores. On this 
 dause two questions have arisen: First, What is meant by the phrase 
 1 concurrent jurisdiction ?” Secondly, In what sense did that act speak 
 )f the new states as possessing the shores opposite to Virginia? 
 
 It is not necessary perhaps, and therefore would not be proper, to 
 :xpress any decided opinion in the present case touching the construc- 
 ion of the act referred to. If the terms “concurrent jurisdiction” im¬ 
 port, as some suppose, and as would seem to be their natural significa- 
 ion, coextensive or equal jurisdiction, then it entirely obviates the ob- 
 ection we have been considering; since, upon that supposition, Ohio 
 possesses by express grant plenary jurisdiction, not over the space in 
 question merely, but over the whole river for all purposes for which 
 ;he could reasonably or lawfully desire it. If this construction be cor¬ 
 rect, the consequence, that it may authorize Ohio to exercise jurisdic- 
 ion to the high water mark on the Virginia side, may be a matter of 
 Serious consideration with Virginia, but can afford no foundation for a 
 :laim on the part of Ohio to any portion of the bed of the stream. 
 S’or does the danger of conflict in the exercise of this concurrent juris- 
 liction disprove its existence. Should such conflict arise, the difficulty 
 :an only be adjusted by the laws which govern cases of conflicting 
 urisdiction between sovereign states, or by amicable conventions. I 
 :annot concur in the idea, however, that the right of free navigation 
 Secured to all the citizens of the United States gives to the other states 
 >f the Union jurisdiction over the river. If such were the effect, it 
 vould have been very useless to give or retain concurrent jurisdiction 
 o the border states in the act creating the state of Kentucky. Virgi¬ 
 nia must have thought, that owning the river, she had a right to grant 
 |)r restrict jurisdiction over it as she might think proper. Free navi¬ 
 gation over a river belonging to one state implies no right of jurisdic- 
 ion in any other. Whatever may be the extent of the jurisdiction 
 upposed to be conferred on or retained by the border states, it is con- 
 ined exclusively to them: and the grant, upon the supposition that 
 he above is a correct interpretation, was obviously regarded by Virgi- 
 lia as limiting or dividing her otherwise absolute and unbounded em- 
 >ire over the river within the limits of her territory. 
 
 If any claim then be set up for Ohio under this part of the act 
 reating Kentucky, it must be one for jurisdiction,—concurrent juris- 
 liction only,—and not soil. Nor does the latter part of the same clause 
 which speaks of the jurisdiction of Virginia and Kentucky as concur- 
 
32 
 
 [ Doc. No. 17. ] 
 
 rent with the states that may possess the opposite shores) justify, in my 
 opinion, the use or the interpretation made of it. The term shores, it 
 is said, is the ground between ordinary high and low water mark. In 
 speaking of the northwestern states, then, as owners of the shores, Vir¬ 
 ginia is supposed to have used the term in this sense, and thereby ad¬ 
 mitted the soil to be in those states. It does not seem regular or pro¬ 
 per to lay hold of the expressions of an instrument between other par¬ 
 ties to explain the deed of cession,—to which it makes no reference. 
 Technically the term shores is applicable only to the sea or tidewater. 
 But most obviously it was used here in its more extended sense, as 
 synonymous with the term more appropriate to rivers—namely, banks. 
 And so regarded, as it must be, the phrase means nothing more than to 
 describe or refer to the states in question as possessors of the opposite 
 banks, or rather of the territory lying on or bounded by them. In 
 this sense the chief justice himself, who refers to the expression, but 
 without putting this technical construction upon it, most probably un¬ 
 derstood it. He lays some stress upon the term shores; but all he 
 says is, “ This term seems to be a repetition of the idea under which 
 the cession was made. The shores of a river border on the water’s 
 edge.” This is certainly true, and corresponds with definitions before 
 quoted from Grotius—“ The river is the stream between certain banks;” 
 and “ The banks are the outer part of the bed, that is, the space in 
 which the river has its course naturally.” And the bed is that space 
 at all times, whether actually covered with water or not. 
 
 But if the term is to be expounded in its technical sense when ap¬ 
 plied to streams of a different description, still it cannot be interpreted 
 to enlarge the grant specially made by the act. That grant is specially 
 one of jurisdiction only. And even if it could be strained into a con¬ 
 cession of soil, yet Virginia retained to herself and Kentucky concur¬ 
 rent jurisdiction over the river, the entire river, in all its stages. 
 
 Neither, then, under that act nor under the cession can any surren¬ 
 der of the soil be presumed. Where incidental rights are to be infer¬ 
 red in a doubtful case, all the rights of the original possessor should 
 be left unimpaired, not essential to the enjoyment of the rights gran¬ 
 ted. The justice of this principle will not be denied. Jurisdiction 
 being all that was required, jurisdiction only should be presumed. Nor 
 does there seem to be a reason or principle justifying an extension of 
 the right over the soil to low water mark on the northwestern side, for 
 the sake of jurisdiction, which would not carry it to the same line on 
 the southeast, or at least ad medium filum aquai. 
 
 But has any serious ground of complaint on this subject of jurisdic¬ 
 tion been shewn to the court? Has not Ohio, at all times prior to the 
 case of Handley’s lessee v. Anthony, and since, exercised all the juris- 
 tion she desired over the river, and especially over the space between 
 high and low water? On the other hand has Virginia, at anytime 
 previous to the case now before us, exerted her jurisdiction in a way to 
 induce any complaint ? Is there any real danger that she will ever 
 covet a jurisdiction so inconvenient and vexatious; or that individuals 
 having access to the courts of Ohio will go across the river to Virginia, 
 to obtain process which the party complained of may instantly and 
 forever elude or defy ? 
 
33 
 
 [Doc. No. 17.] 
 
 Nor does there seem to be much reason to apprehend danger from 
 grants by Virginia of the space between low water and the banks of 
 the river. In sixty years no such grant has been made. All such 
 grants on all the western waters are expressly prohibited by her statute 
 law; and if not, would be contrary to her own interest, as well as a 
 flagrant violation of her compacts, securing the free navigation of the 
 river to all the citizens of the Union. 
 
 This argument, from abuse moreover, if it were sound, surely would 
 apply with equal force to the one state as to the other. If the domain 
 when retained by Virginia may lead to such consequences, may they 
 not ensue from vesting it in Ohio ? Are we to infer abuse of power 
 over the soil by one state, its ancient possessor, and for that reason 
 transfer the same power to another ? 
 
 Virginia and all the states have at least the right of use and naviga¬ 
 tion. With these rights, whatever may be the doctrine of the com¬ 
 mon law (which is not obligatory upon states), that of the law of na¬ 
 tions, I apprehend, gives the incidental right of using the banks, for 
 mooring vessels, lading and unlading cargoes &c. Wheaton’s Ele¬ 
 ments of International Law, part 2, ch. 4, § 13, citing Grotius, Vattel 
 and Puffendorff. If Virginia may lawfully exclude Ohio from access to 
 and just use of the river, as seems to be thought, by holding the soil 
 between high and low water, may not Ohio, if she be its owner, as 
 lawfully exclude Virginia from the use of the banks ? And is it not as 
 necessary that the one should have the lawful power to prevent such 
 abuses or injuries as the other? 
 
 If it were legally possible that Virginia could grant the soil in ques¬ 
 tion to individuals, still she could grant it only in subservience to the 
 just rights of Ohio,—free access, and uninterrupted use and navigation. 
 
 In sustaining the instruction of the court below, that low water 
 mark was the line of demarcation, the chief justice, recurring to the 
 fixed impression upon his mind that a boundary by the river was some¬ 
 thing wholly different from one by its banks, proceeds to say—“If it 
 be true that the river Ohio, not its ordinary bank, is the boundary of 
 Indiana, the limits of that state can be determined only by the river 
 itself.” But the idea that a boundary by the river excludes a boun¬ 
 dary by the bank, so far from being sanctioned, is at variance with all 
 authority: and the repetition of the phrase only brings us back to the 
 brink of the difficulty. “ The same tract of land,” he adds, “ cannot 
 be sometimes in Kentucky and sometimes in Indiana. It must be al¬ 
 ways in the one state or the other.” I will not stop to enquire whether, 
 in a legal sense, it is impossible that the same land should be some¬ 
 times in one state and sometimes in another. There is such a thing, 
 it is said upon very high authority, as a movable freehold, and an ex¬ 
 ample is given of a possession alternis vicibus. Co. Litt. 48 b, cited in 
 3 Kent’s Comm. 431. 4 Barn. & Cress. 485. Supposing ordinary low 
 water adopted as the boundary, the land between that and extraordi¬ 
 nary low water must be sometimes in the one state and sometimes in 
 the other, held by them alternis vicibus , or it must belong to Ohio 
 upon every reason which sustains her right to ordinary low water. For 
 if given to Virginia, it leaves Ohio, for the time being, liable to all the 
 5 
 
34 
 
 [ Doc. No. 17.] 
 
 inconveniences supposed to arise from vesting in the former the space 
 between ordinary low water and the bank ; though certainly for a 
 shorter time, and to a less extent. But supposing the land cannot 
 sometimes belong to one and sometimes to another, by no means proves 
 it must of necessity belong to Ohio. Access, the innocent use and free 
 navigation of the river and jurisdiction, are all that Ohio can want or 
 have under the cession. Let it be inferred, if concurrent jurisdiction 
 be not enough, that her jurisdiction is exclusive over the space in ques¬ 
 tion when left bare, and concurrent with that of Virginia when covered 
 by the water, and there is no need to strain the construction so as to 
 give her the right of soil. If the objection be sound that the soil can¬ 
 not belong alternately to each, yet surely the jurisdiction may. The 
 courts of common law and admiralty exercise alternate jurisdiction 
 under similar circumstances over the space upon which the tide ebbs 
 and flows: and I discern no reason why this divisum imperium may 
 not be exercised also by independent states. 
 
 “ There would be little difficulty,” the chief justice proceeds, “ in 
 deciding that in any case other than land which was sometimes an is¬ 
 land, the state of Indiana would extend to low water mark. Is there 
 any safe or secure principle on which we can apply a different rule to 
 land which is sometimes, though not always, surrounded by water?” 
 Certainly not. The conclusion would be undeniable were the premi¬ 
 ses correct. But they are a plain assumption of the very question in 
 issue. Assuming that low water was the boundary all along the main 
 land, terminated the case. Could that have been shewn upon autho¬ 
 rity, the arguments from analogy, inconvenience, or possible abuse, 
 might all have been well spared. 
 
 After shewing that the cases of an island and of the main land 
 were within the same reason, and pointing out the inconvenience of 
 regarding the people inhabiting a neck of land separated from Indiana 
 by a bayou or ravine, but from Kentucky by the river Ohio, as a part 
 of the last mentioned state, and likening it to the case of the inhabi¬ 
 tants of a strip of land along the whole extent of the Ohio, considered 
 as part of the state on the opposite shore, the chief justice adds, “Nei¬ 
 ther the one nor the other can be considered as intended by the deed 
 of cession.” 
 
 I will not suppose that this remark was meant by anticipation to 
 settle the question of boundary between Ohio and Virginia. In speak¬ 
 ing of a slip of land containing inhabitants , the chief justice could 
 not well have meant the slip between low and high water. I pre¬ 
 sume it was meant as an illustration only, to shew that the same in¬ 
 convenience would result to the inhabitants of an island such as that 
 before the court, as to those of the main land. He then expresses the 
 opinion that “if a river subject to tides constituted the boundary of a 
 state, and at flood the water flowed through a narrow channel round 
 an extensive body of land, but receded from that channel at ebb, so as 
 to leave that land connected with the main body of the country, this 
 portion would scarcely be considered as belonging to the state on the 
 opposite shore, although that state should have the property of the ri¬ 
 ver.” It is always diflicult to pronounce what would be the law of a sup- 
 
35 
 
 [ Doc. No. 17. ] 
 
 posed case; and never safe to do so without a precise enumeration of 
 all the facts necessary to a correct judgment. But when in the next 
 breath the chief justice speaks of the principle that a country bounded 
 by a river extends to low water mark, as one so natural and of such 
 obvious convenience as to have been generally adopted, I must with 
 the most unfeigned respect acknowledge my surprise; unless his allu¬ 
 sion be to conventional arrangements. What these may have been, I 
 have not deemed it necessary to examine. They can have no influ¬ 
 ence on the question before us. Where compacts exist, they of course 
 define the rights of the parties. Modus et conventio vincunt legem. 
 But if the remark be intended to represent the low water mark as the 
 boundary established by law where there is no treaty or compact, or 
 where the terms of the compact are doubtful, and one of the states 
 was the original possessor of the whole river, all I can say is that I 
 have not been fortunate enough to find the case or the author that 
 maintains it. 
 
 “The case,” he tells us immediately after, “is not without its dif¬ 
 ficulties: but 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 controver¬ 
 sy, we think the great object, where it can be distinctly perceived, 
 ought not to be defeated by those technical perplexities which some¬ 
 times influence the contracts between individuals.” Surely if the 
 principle generally adopted, as the chief justice supposes, recognizes 
 low water mark as the boundary of countries bounded by a river, 
 there was no difficulty in deciding that the case before the court came 
 within it. I concur entirely in the justice of the remark that not in 
 great cases only, but in all cases, ought the real object of the parties 
 to be protected against technical exceptions. But neither ought new 
 or arbitrary rules to be laid down because of the magnitude of the 
 case. Were that allowable, the judgments of courts, like the waters 
 of the great stream which have been so much the subject of discus¬ 
 sion, would indeed often transcend their proper limits, and become as 
 uncertain as the evanescent, vacillating, unmarked and unknown line 
 which contains its waters at the period of its utmost or ordinary de¬ 
 pression. 
 
 ! I have gone through with the examination of the case of Handley’s 
 lessee v. Anthony. I am aware it must seem unnecessarily prolix. 
 But I prefer to encounter that censure, rather than be supposed to have 
 passed without the maturest consideration any one of the views, how¬ 
 ever minute, which led the profound and acute minds of the chief 
 justice and his associates to the conclusions they adopted. It was due 
 to myself to explain the grounds upon which I have ventured to differ 
 with those learned and eminent judges: and I cannot but hope they 
 are such as, if not sufficient to satisfy the minds of others, will at 
 least afford some reasonable foundation for my own deep and sincere 
 conviction that the judgment in question is unsustained by principle 
 or authority. Not only so—it has already perhaps led to most anoma¬ 
 lous results. The law of boundary, the rights of riparian owners, are 
 one thing on the southeastern side of the Ohio river, and another on 
 
36 
 
 [ Doc. No. 17. ] 
 
 the northwestern : stranger yet, in the same state, the state of Ohio, 
 the law of the great river which borders her territory is not, if I cor¬ 
 rectly understand the decisions of her courts, the law of rivers in the 
 interior of the state. 3 Ohio Rep. 495. The law of the Ohio is not 
 the law of the Sandusky or the Scioto. 
 
 It must be admitted that the question is not without its difficulties: 
 and it may be thought any other boundary would be as open to objec¬ 
 tion as that by the low water mark. I think not. Were all others in 
 every other respect equally objectionable, there is one objection to low 
 water mark to which the others contended for are not liable; namely, 
 that no principle of law as adjudged or settled upon authority, before 
 the case of Handley’s lessee v. Anthony, has been adduced or is known 
 to have recognized it. But high water mark, besides the weight of 
 authority in its favour, is less exceptionable on the ground of uncer¬ 
 tainty ; and the actual edge of the water at all times not only less un¬ 
 certain, but one, in my view, of entire certainty. Neither the lowest 
 point of depression, nor ordinary low water, which always occur in 
 the summer or fall, can ever be known till those seasons have passed. 
 Suppose these lines once ascertained, they may undergo annual and 
 daily changes, and may and must be speedily, perhaps the next day or 
 hour, concealed if not obliterated for the residue of the year. Not so 
 with the high water mark. That, once ascertained, may be more rea¬ 
 dily verified; the receding waters leaving it accessible until in their 
 annual return they shall again attain it. But the actual edge of the 
 water requires no witness. It testifies for itself: and whether a given 
 transaction occurred within or beyond it, all must know who were 
 witnesses to the occurrence itself. 
 
 With a very strong impression upon my mind that this last would 
 be the more convenient boundary, but that high water mark is most in 
 accordance with the law, I forbear to give any decided opinion between 
 them; because, in my view, it is not necessary in answer to the ques¬ 
 tions adjourned. If the latter be the true boundary, then the place in 
 which the offences are found to have been committed was within the 
 jurisdiction of Virginia, clearly: and so I think it is if the edge of the 
 river, wherever it may be, give the rule; making a case of divisum 
 imperium, or giving to Ohio alternate and even exclusive jurisdiction 
 when the water recedes. I cannot concur in the opinion of some of 
 my brethren, that the circumstance that the bow of the canoe, in which 
 the slaves were, was at the time on the beach at the water-edge, or 
 that the defendants who went down to assist them were standing in 
 the water at the bow, and consequently on the ground beneath, are 
 sufficient, if the jurisdiction of Virginia extended at all times to the 
 water-edge,—to oust her of that jurisdiction. The idea seems founded 
 upon Constable’s case, or other authority to the effect that all things 
 attached to shores, up to which the admiralty courts have jurisdiction, 
 are regarded, for the reason that they are so attached, as within the 
 jurisdiction of the courts of common law. 5 Co. Rep. 107. Even 
 this authority does not go to the extent that articles lodged elsewhere, 
 on a rock, or on the soil of this contested ground between high and 
 low water, would not be within the admiralty jurisdiction. But the 
 
37 
 
 [Doc. No. 17.] 
 
 authority referred to relates to a question of controverted jurisdiction 
 between the English courts of common law and admiralty. It is the 
 opinion of common law judges,—of Coke especially, whose authority 
 in such cases has been seriously doubted on account of his known hos¬ 
 tility to the admiralty courts. It can afford no rule for settling a question 
 of contested jurisdiction between sovereign states. The rule between 
 equals admits of no preference on the ground of superior pretension, in 
 cases of equal right or divided empire. The principle so often adverted 
 to, that the incident would go with the principal right, would give the 
 rule. Each party would have jurisdiction to his limit; he could have no 
 power to step beyond it. If an article of property belonging to the owner 
 of the soil should fall partly in the water, it would belong to its original 
 owner: at most, the owner of the water could not claim beyond his 
 line. So if a boat belonging to the latter touch or moor against the 
 bank, the same rule would apply: it would still be the property of its 
 owner, the master of the river. Or, supposing each to have in this 
 case equal and concurrent jurisdiction, that first exercised would have 
 the preference. The distinction, to say the least, is one extremely 
 subtle; too much so, perhaps, to be made the subject of grave discus¬ 
 sion. Certainly, but for the high respect I entertain for those of my 
 brethren who seem to favour it, and the belief that it has had great in¬ 
 fluence in producing the present judgment, I should have passed it 
 without a comment. We cannot easily reconcile with reason or con¬ 
 venience the notion that an offender who commits a murder in a boat 
 between high and low water would be within the jurisdiction of Vir¬ 
 ginia, but exempt from that jurisdiction if, at the same spot, he was 
 not on the surface of the water but standing on the ground beneath it. 
 This would indeed be to defeat a great object by a technical subtlety, 
 which, if recognized by the common law, is certainly, I apprehend, 
 unknown to the law of nations. 
 
 My opinion is, and I think the general court should so certify to the 
 circuit court, that the place in which the offences charged in the in¬ 
 dictment are found to have been committed, is within the jurisdiction 
 of Virginia, and consequently within the jurisdiction of the circuit 
 court of Wood county. 
 
 Opinion of Johnston, J. The most important question arising in 
 this cause, is that respecting the boundary line between the states of 
 Virginia and Ohio. Having once settled this point, and ascertained the 
 true line where the territory of the one state begins and that of the 
 other ends, it will be easy to determine whether the offence with 
 which the defendants in the indictment are charged was committed 
 within the jurisdiction of Virginia or of Ohio. I shall therefore pro¬ 
 ceed to consider, in the first place, what is the true boundary between 
 these two states; and, in doing so, I shall assume that the title of Vir¬ 
 ginia to the northwestern territory was a valid and subsisting one at 
 the time she ceded it to the United States, notwithstanding the very 
 learned argument submitted by the counsel for the state of Ohio to 
 prove the reverse. It does not become a Virginia court, it seems to 
 me, to argue such a question. It is not open for our consideration. It 
 
38 
 
 [Doc. No. 17.] 
 
 has been closed by the original constitution itself, by which our govern¬ 
 ment was established in 1776. By that solemn instrument (after 
 ceding and confirming to Maryland, Pennsylvania, North and South 
 Carolina the territories contained within their respective charters,) it is 
 declared that “ the western and northern extent of Virginia shall, in all 
 other respects, stand as fixed by the charter of king James the first, 
 in the year one thousand six hundred and nine, and by the public 
 treaty of peace between the courts of Great Britain and France in 
 the year 1763,” &c. That this charter of king James, which granted 
 to the Virginia company the territory extending from Point Comfort 
 200 miles to the south and 200 miles to the north along the Atlantic 
 coast, and thence a breadth of 400 miles to the west and northwest 
 quite through the continent to the coast of the Pacific, embraced the 
 territory northwest of the river Ohio, and that the title of Virginia 
 thereto was valid notwithstanding the suppression of the said company 
 by the royal proclamation in 1624, Virginia has repeatedly declared by 
 acts of her legislature and by her final cession of it in 1783 to the 
 United States. Whatever weight these solemn acts of Virginia, claim¬ 
 ing the territory in question, may be entitled to in the estimation of 
 others, it seems to me they are conclusive upon this court; and there¬ 
 fore, that we are bound to regard the title of Virginia as valid at the 
 time she ceded the same to the United States. 
 
 Virginia, then, being the proprietor of the territory on both sides of 
 the river Ohio, by her deed in 1783 conveyed all her “right, title and 
 claim as well of soil as jurisdiction” to that part of it “ situate, lying 
 and being to the northwest of the river Ohio” to the United States. 
 
 By the very terms of this grant, the river itself did not pass. The 
 conveyance was of the territory lying and being to the northwest of 
 the river; and these terms exclude the idea that Virginia intended to. 
 part with the river itself, but on the contrary clearly manifest her in¬ 
 tention to retain it in her own territory. 
 
 But if this were doubtful from the conveyance itself, the river would 
 still belong to Virginia by the law of nations. According to that law, 
 when a great river is the boundary between two states, if the original 
 property is in neither, and there be no convention respecting it, each 
 holds 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. Thus, by the law of nations, as well as by 
 the very terms of the cession, Virginia did not part with her property 
 in the river. 
 
 But it is equally clear, it seems to me, that she did part with her 
 property in every foot of territory beyond the river; and that she in- i 
 tended to confer upon the United States the whole northwestern terri¬ 
 tory, commencing at, or resting upon the Ohio river. Now these two 
 intents of Virginia, apparent, it seems to me, on the face of her deed, 
 to wit: the intent to part with the whole territory on the opposite side 
 of the river and the intent to confer it upon the United States up to 
 the river, can only be effected by adopting the low water mark on the 
 Ohio as the dividing line between them. If any other be established— ( 
 
39 
 
 [Doc. No. 17.] 
 
 tor instance, if the bank of the river, or high water mark, or the mark 
 when the river is at its ordinary height be fixed as the boundary line— 
 then, during those portions of the year when the river is at low water, 
 there will be a strip of land along the whole course of the river, be¬ 
 tween low water mark and the boundary line, belonging to Virginia, 
 and that too lying to the northwest of the river Ohio and separated by 
 that river from the rest of her territory: And, moreover, this same 
 strip of land, during the same periods of the year when the river should 
 recede to low water mark, would be an intervening space between the 
 territory ceded away by Virginia and the river itself. In other words, 
 the citizens of the state of Ohio, which was formed out of a portion 
 of this territory, would have to pass over a part of the territory of Vir¬ 
 ginia in order to reach the river, which by the obvious intent of the 
 grant was intended to be the boundary between the two states. The 
 very statement of the proposition, it seems to me, is its own refutation. 
 Who ever dreamed that Virginia owned any territory beyond the river 
 Ohio since her deed of cession ? Or who ever supposed that a citizen 
 of Ohio had to pass over Virginia soil and thus subject himself to a 
 foreign jurisdiction before he reached that noble river from which his 
 state derived its name ? 
 
 Nor does the assumption of some, that the Ohio river comprises not 
 only the water in the bed of the stream but the bed itself, whether 
 covered with water or liable only to be covered, and that the strip of 
 land left bare by the receding of the water would belong to Virginia 
 in right of her original sovereignty over the river, which she never 
 parted with, remove the difficulty. By whatever right or title Vir¬ 
 ginia held it, it would still present an intervening space of ground be¬ 
 tween the state of Ohio and the Ohio river at low water; and every 
 individual who reached the river from the state of Ohio would do so by 
 the courtesy of Virginia in permitting him to pass over her territory. 
 
 Neither is the difficulty removed by saying, that under the compact 
 between Virginia and Kentucky (which I shall have occasion to notice 
 more particularly hereafter), it was provided that the respective juris¬ 
 dictions of those two states on the river should be concurrent only with 
 the states which might possess the opposite shores. Still, the original 
 sovereignty of Virginia over the river remained the same. She chose 
 to divide her jurisdiction over it with Ohio, but she did not divide her 
 dominion over the soil. That remained absolute and exclusive. And 
 so, in any point of view, if the low water mark is not the true boun¬ 
 dary line the space of ground left bare by the receding of the water be¬ 
 tween that mark and the real boundary, wherever it may be, whether 
 the bank of the river or high water mark, will be the absolute proper¬ 
 ty of Virginia, forming a part of its territory and separating the terri¬ 
 tory of Ohio from the Ohio river at low water. 
 
 What if Ohio does possess concurrent jurisdiction over this strip of 
 land with Virginia. By whose laws shall it be governed? Which 
 state has a right to enact laws for the government of this territory of 
 Virginia ? Has Virginia alone that right, or does she share it in com¬ 
 mon with Ohio ? If Virginia alone—then all the offences committed 
 all the contracts entered into and all the property upon this disputed 
 
40 
 
 [ Doc. No. 17. ] 
 
 territory are subject to the laws of Virginia. But if each state pos¬ 
 sesses this right, then in case of a conflict of laws which is to prevail ? 
 Are the citizens of Ohio, engaged in their daily business upon the 
 shores of this busy river, loading and unloading boats, building 
 wharves, erecting machinery, buying and selling produce, to be sub¬ 
 jected while thus employed to the laws of another state of which 
 they are ignorant ?—or are they to be regulated and governed by two 
 distinct codes differing, it may be, essentially from each other ? 
 
 These are but a few of the many difficulties and inconveniences 
 that would inevitably flow from considering Virginia the absolute 
 proprietor of the land between low and high water mark, whether she 
 exercised exclusive jurisdiction over it or concurrent only with Ohio. 
 In either event it would be her soil—for, not being included in her 
 deed of cession, her original sovereignty over it would remain unim¬ 
 paired. And then what would prevent her from saying to Ohio and 
 her citizens, you shall not violate my territory by passing over it to 
 the river? True, the Ohio river itself, being a navigable stream, is, 
 according to the law of nature and nations, a common highway, and 
 you have a right, notwithstanding my dominion over it, to the free 
 use of it for the purposes of navigation : but then, you have no right 
 to pass over my soil without my consent, to get to it. It would be no 
 answer to such an objection for Ohio to say—true, you are the owner 
 of the land you speak of, but then it is a part of the shores of the 
 river, and the right to the free use of the river includes a right to the 
 use of the shores. This would have been a good answer under the civil 
 law, which, going beyond the common law, declared that all rivers 
 where the flow of water was perennial belonged wholly to the public 
 and carried with it the right of fishing as well as the public use of the 
 banks. Inst. 2, 1, 2. And in the 3d volume of Kent’s Commenta¬ 
 ries p. 332, the learned author says that Bracton, adopting the doctrine 
 of the civil law, held that the right of fishing in rivers and the use of 
 the banks was common jure gentium. But, adds the chancellor, “ it 
 is every where agreed, that this common right is liable to be modified 
 and controverted by the municipal law of the land, and no person has 
 a right to pass over the lands of others in order to get to the water.” 
 And accordingly, in Blundel v. Catteral, 5 Barn. & Aid. 268, “ the 
 doctrine of the civil law as stated by Bracton was disclaimed, and it 
 was held, that the public had no common law right of passing the 
 beach, or sea-shore, for the purpose of bathing in the sea, as against 
 the lord of a manor who was owner of the soil of the shore, and had 
 the exclusive right of fishing therein.” Now, at common law, the 
 shores of the sea as well as the shores of navigable or tidewaters, be¬ 
 longed to the crown and were common to every person till granted— 
 but when granted away by the crown, as in the case just referred to, 
 no person could pass over them in order to get to the sea. Suppose 
 Virginia then should grant away the shores of the Ohio, which are 
 nothing more than the space of ground between low and high water 
 mark, as will presently be shewn, how would Ohio reach the river 
 ■when the water was down to low water mark ? See Hale De Jure 
 Maris, where it is laid down that the shore of the sea of common 
 
41 
 
 [ Doc. No. 17. ] 
 
 right belongs to the king, but may be vested in a subject by prescrip¬ 
 tion or grant —as, if the king grants a manor cum littore mans eidem 
 adjacente, the shore itself will pass. 
 
 Surely a doctrine involving the inconveniences and consequences to 
 which I have but alluded, cannot be correct; and if there were no 
 other reasons, these of themselves would be sufficient to lead us to 
 adopt the low water mark as the boundary line between the two states. 
 
 But, fortunately, we are not without authority upon this most inte¬ 
 resting and important question; authority, too, of the highest charac¬ 
 ter and entitled to the gravest consideration and utmost deference of 
 this court. I mean, of course, the authority of chief justice Marshall, 
 in the case of Handley’s lessee v. Anthony, 5 Wheat. Rep. 374, cited 
 at the bar. This was an ejectment brought in the circuit court of the 
 United States for the district of Kentucky, to recover land claimed by 
 the plaintiff under a grant from Kentucky, and held by the defendant 
 as a part of Indiana under a grant from the United States; and the 
 title depended upon the naked question whether the land in controversy 
 was located in the state of Kentucky or the state of Indiana. In order 
 to determine this, it became necessary to ascertain the true boundary 
 line between these two states, and in doing so the court below held 
 that the state of Kentucky extended only to low water mark on the 
 western or northwestern side of the river Ohio, and did not include a 
 peninsula or island (which included the land in controversy) on the 
 western or northwestern bank, separated from the main land by a chan¬ 
 nel or bayou, which was filled with water only when the river rose 10 
 feet above lower water mark, and at other times was dry. And this 
 decision was unanimously affirmed by the supreme court of the United 
 States, the highest legal tribunal in our land, over which presided the 
 greatest judicial character of the age in which he lived. Now if the 
 low water mark separates Kentucky from Indiana, the same line sepa¬ 
 rates Virginia from Ohio ; for both Indiana and Ohio were portions of 
 the northwestern territory ceded to the United States by Virginia, and 
 the true boundary of each therefore depends upon the proper construc¬ 
 tion of the same deed of cession. The case of Handley’s lessee v. 
 Anthony et al. is an express authority then upon the identical question 
 before this court, and is entitled, it seems to me, to the most profound 
 respect. It is not surprising that its force, therefore, should have been 
 attempted to be broken, in argument, by contending that although the 
 question of boundary was decided, yet it did not properly arise in the 
 case, and that the real question was whether the land claimed by the 
 plaintiff was an island or not. But this attempt, it seems to me, en¬ 
 tirely failed. There were two exceptions to the opinion of the court 
 below, and the chief justice, in delivering the opinion of the court 
 above, says : “ The two exceptions present substantially the same ques¬ 
 tions to the court, and may therefore be considered together. They 
 are, whether land is properly denominated an island of the Ohio unless 
 it be surrounded with the water of the river when low ? and whether 
 Kentucky was bounded on the west and northwest by the low water 
 mark of the river, or at its middle state ? or, in other words, whether 
 6 
 
42 
 
 [Doc. No. 17.] 
 
 the state of Indiana extends to low water mark, or stops at the line 
 reached by the river when at its medium height ?” 
 
 And in another part of his opinion he says : “ The opinions given by 
 the court must be considered in reference to the case in which they 
 were given. The sole question in the cause respected the boundary 
 of Kentucky and Indiana , and the title depended entirely upon that 
 question. The definition of an island which the court was requested 
 to give, was either an abstract proposition, which it was unnecessary to 
 answer, or one which was to be answered according to its bearing on 
 the facts in the cause. The definition of an island was only material 
 so far as that definition might aid in fixing the boundary of Kentucky." 1 
 So far then from the question whether the laud was an island or not 
 being the main one in the cause, it was, in the opinion of the supreme 
 court, only material so far as it might aid in fixing the boundary of 
 Kentucky and Indiana, which in fact, in the language of judge Mar¬ 
 shall, was the sole question involved and was directly brought up by 
 the instructions asked for in the court below both by the plaintiff 1 and 
 defendant. By the 2d instruction, for instance, moved by the defen¬ 
 dant, the court was asked to instruct the jury that the lessor of the 
 plaintiff" could not recover, “ because the evidence does not shew that 
 the land is within the limits of the state of Kentucky.” Did not this 
 present the question, what are the limits of Kentucky ? and how could 
 this be ascertained but by determining what was the true boundary 
 line of that state ? If low water mark was that true line, then whether 
 this land, surrounded by a bayou at ordinary water, was technically an 
 island or not, it was not within the limits of Kentucky which reached 
 only to low water. 
 
 So in the plaintiff’s instruction the court was moved to instruct the 
 jury, that if the land in controversy was surrounded by a regular wa¬ 
 ter channel of the Ohio on the northwest side, and was at the middle 
 and usual state of the water surrounded by the waters of the Ohio, 
 flowing in said channel, then it was an island and “ within the state of 
 Kentucky .” Here the court is asked directly, to affirm that the land 
 was in Kentucky. How could it do this without first ascertaining the 
 boundary line of Kentucky ? The negation of the first part of the 
 proposition, that this land, surrounded by a channel which at times 
 was dry, was an island, did not settle the latter part of the proposition 
 which affirmed that the land was in Kentucky; for this land might 
 not be an island, and yet it might be in the state of Kentucky. For 
 if Kentucky extended to high water mark it did include this land if 
 the channel or bayou running around it was, as the plaintiff below con¬ 
 tended, to be considered a part of the river. Was it not proper then 
 for the court to decide whether Kentucky extended to high water mark 
 or reached only to low water? It seems to me that it was, and that 
 there is no plausible ground for evading the just weight to which this 
 authority is entitled, by saying that the supreme court did not under¬ 
 stand the question raised by the record, and that they were mistaken 
 in asserting that the real question was as to the true boundary line be¬ 
 tween Kentucky and Indiana. The case, therefore, it seems to me, is 
 a full and complete authority upon the very question now before this 
 
43 
 
 [ Doc. No. 17. ] 
 
 court, and we must either follow it or repudiate and overrule it. For 
 my part, I am disposed most cheerfully to follow it; not merely on ac¬ 
 count of the exalted source from which it comes and the safety of fol¬ 
 lowing the light that emanates from the mind of such a man as judge 
 Marshall, but because my own judgment most fully assents to its 
 correctness. 
 
 But there are other grounds for believing-that Virginia intended by 
 her deed of cession to make the low water mark the boundary be¬ 
 tween her own and the northwest territory. We have the acts and 
 declarations of Virginia herself, subsequently made, to prove it. In 
 her compact with Kentucky in 1789, subsequent to her deed of ces¬ 
 sion, Virginia consents that Kentucky should be erected into an inde¬ 
 pendent state upon certain terms and conditions, the 7th of which 
 contained the following provision: “ The respective jurisdictions of 
 this commonwealth and of the proposed state, on the river as afore¬ 
 said, shall be concurrent only with the states which may possess the 
 opposite shores of the said river.” 
 
 Now the shore of the sea, according to lord Hale’s definition, is the 
 ground between the ordinary high and low water mark, and if the 
 king grants a manor cum littore maris eidem adjacente , the shore itself 
 will pass; though in such a case lord Coke expresses the opinion that 
 if a grant was made of the sea shore the freehold would shift as the 
 sea receded or encroached, and it would take all the soil that should 
 from time to time be within high and low water mark. And this idea 
 of a moveable freehold seems to have been entertained by the chief 
 justice in the case of Arnold v. Mundy, 1 Halsted’s Rep. 1. But 
 judge Kent in his commentaries, vol. 3, p. 347, referring to these doc¬ 
 trines, says, that he “apprehended the better opinion to be that in or¬ 
 dinary grants of land bounded on the sea or a river the boundary limit 
 must be stable, either at ordinary high or low water mark, and not 
 subject to alternate change with the flux and reflux of the tide.” 
 Then the sea shore, as well as the shores of navigable streams in 
 which the tide ebbs and flows, would seem to be the fixed and perma¬ 
 nent space between high and low water, not subject to change with 
 the ebb and flow; and the same rule ought to hold, it seems to me, in 
 the case of great navigable rivers where the tide does not ebb and flow 
 daily but where the rise and fall is irregular. It has been so holden in 
 Pennsylvania, where the English doctrine that no rivers are deemed 
 navigable except those where the tide ebbs and flows has been held 
 not to be applicable to the great rivers in that state, such as the Sus¬ 
 quehanna and Delaware. And in Handley’s lessee v. Anthony, the 
 court considered that the same reasons of general convenience which 
 had established the rule, by the general consent of mankind, that a 
 country bounded by a river in which the rise and fall was diurnal ex¬ 
 tended to low water mark, equally applied to those in which the rise 
 and fall was annual. 5 Wheat. 380. It follows then from these au¬ 
 thorities that the shores of the sea and of rivers where the tide ebbs 
 and flows are the space of ground between high and low water mark, 
 and that they are not subject to fluctuate with the rise and fall of the 
 water, and that the shores of great navigable streams like the Ohio or 
 
 
44 
 
 [ Doc. No. 17. ] 
 
 Delaware are the same, equally fixed and permanent. Hence Virgi¬ 
 nia, when she spoke in her compact with Kentucky of the states own¬ 
 ing the opposite shores, must be understood to have meant by that lan¬ 
 guage the ground between high and low water mark, and this was 
 tantamount to a declaration that by her deed of cession she conveyed 
 the territory northwest of the river Ohio commencing at low water 
 mark; or, what would amount to the same thing, that by her grant of 
 the territory northwest of the river Ohio the states formed out of that 
 territory would by the law of nations extend to low water mark. This 
 principle of the lex gentium is laid down by judge Marshall (in the 
 case already referred to of Handley’s lessee v. Anthony, 5 Wheat. 3S0), 
 as indisputable and “established by the common consent of mankind” 
 in the case of a country bounded by a river whose tide ebbs and 
 flows: and the same reason, to wit, the inconvenience that would re¬ 
 sult from the opposite doctrine, would make this principle apply to a 
 country bounded by a great navigable river like the Ohio. For the 
 same judge proceeds to say, that “even when a state retains its domi¬ 
 nion over a river which constitutes the boundary between itself and 
 another state it would be extremely inconvenient to extend its domi¬ 
 nion over the land on the other side which was left bare by the rece¬ 
 ding of the water. And this inconvenience is not less where the ri¬ 
 sing and falling is annual than where it is diurnal.” And then he 
 adds “ Wherever the river is a boundary between states it is the main 
 permanent river which constitutes that boundary; and the mind will 
 find itself embarrassed with insurmountable difficulty in attempting to 
 draw any other line than the low water mark.” This is the doctrine, 
 as expounded by the supreme court, in regard to a country or state 
 bounded by a river, and it is referred to with seeming approbation by 
 judge Kent in the 3d volume of his commentaries, p. 348. 
 
 The rule of the common law is different when applied to individu¬ 
 als. In such cases, while the riparian owner under a grant from the 
 crown has a right to go ad jilum medium aquce where bounded by a 
 fresh water river, yet on tidewaters he cannot go beyond ordinary 
 high water mark. Cortelyou v. Van Brundt, 2 Johns. Rep. 357. 3 
 
 Kent 346. In such cases the shores below ordinary high water belong 
 to the public, and in a grant of the adjoining lands the grant would 
 be construed most favourably for the public, which needs the shore for 
 common purposes. But the rule would be inapplicable when the 
 grantee was a state instead of an individual. For the very conveni¬ 
 ence to the public, which restricts the grant in the case of an indivi¬ 
 dual from passing the shores, would operate as a reason why they 
 should pass in the case of a grant to a state. And this, I apprehend, 
 is the true reason why the rule in the two cases is different, and ex¬ 
 plains (what at first might appear a contradiction) why it is that a 
 grant from the state to an individual would restrict him to high water 
 mark, without express words authorizing him to go farther, and a si¬ 
 milar grant to a state would carry it to low water mark. In the lat¬ 
 ter case the grant would be construed most favourably for the grantee, 
 as the public convenience requires that a state bounded by a river 
 should reach the low water mark and thus be entitled to the shores. 
 
45 
 
 [Doc. No. 17.] 
 
 But the meaning of Virginia in the use of the word shores in her 
 compact with Kentucky may be farther, and perhaps still more satis¬ 
 factorily, ascertained by the use she makes of that term in her consti¬ 
 tution adopted in 1776. By the 21st article of that instrument it is 
 provided that “ the territories contained within the charters erecting 
 the colonies of Maryland, Pennsylvania, North and South Carolina, are 
 hereby ceded, released and forever confirmed to the people of those 
 colonies respectively, with all the rights of property, jurisdiction and 
 government, and all other rights whatsoever which might at any time 
 heretofore have been claimed by Virginia, except the free navigation 
 and use of the Potomac and Pohomoke, with the property of the 
 Virginia shores or strands bordering on either of the said rivers, and 
 all improvements which have been or shall be made thereon.” And 
 in her subsequent act of 1786, confirming the compact made between 
 certain commissioners of Virginia and Maryland, she uses still more 
 explicit language, in the 7th article of said compact, which provides 
 that “ the citizens of each state respectively shall have full property 
 in the shores of Potomac river adjoining their lands, with all emolu¬ 
 ments and advantages thereunto belonging and the privilege of making 
 and carrying out wharves and other improvements so as not to obstruct 
 or injure the navigation of the river.” Can any one doubt that the shores 
 mentioned in this article extended to low water mark, reserved as they 
 were for the purpose of carrying out wharves and other improvements ? 
 And if so, may we not reasonably conclude that the same thing was 
 meant when, in her compact with Kentucky, Virginia spoke of the 
 states owning the opposite shores of the Ohio ? What could be more 
 natural ? For it must be remembered that when she ceded away the 
 northwestern territory, Virginia did so upon the condition that separate 
 and independent states should thereafter be formed out of it, which 
 would in time enter into the Union. And she intended that these 
 states thus to be formed should be bounded by the Ohio river, over 
 which she consented they might exercise concurrent jurisdiction with 
 herself. But this object would be defeated by adopting now the high 
 water mark ; for then during a part of the year those states would not 
 be bounded by the river, but would be cut off from the same by the 
 strip of land before mentioned lying between high and low water 
 mark. 
 
 It seems to me, therefore, that in whatever light the question is 
 viewed, whether in regard to the inconveniences that would result 
 from the opposite doctrine, or to authority, or to the laws of nations, 
 or to the evident intention of Virginia as manifested by cotemporaneous 
 acts and declarations, we are led irresistibly to the same conclusion, 
 and that is, that the low water mark on the Ohio river is the true 
 boundary between the territory of Virginia and Ohio, and that conse¬ 
 quently the jurisdiction of Ohio is exclusive to that mark. 
 
 I shall now proceed to consider the principal objections, as I under¬ 
 stand them, to the views just presented. 
 
 And, first, it is said that by her compact with Kentucky, in which 
 it was provided that her jurisdiction and that of Kentucky should be 
 concurrent, on the river only, with the states which might possess 
 
46 
 
 [Doc. No. 17.] 
 
 the opposite shores, Virginia gave evidence that she considered her¬ 
 self as entitled to the whole river up to high water mark, or, as some 
 contend, even to the top of the bank ; and that consequently she could 
 not have ceded any portion of it away, and that she still retained her 
 original jurisdiction over it. 
 
 But I have already endeavoured to shew that when a river is the 
 boundary between states it is, in the language of judge Marshall in 
 Handley’s lessee v. Anthony 380, “ the main the permanent river that 
 constitutes that boundary.” If so, Virginia had conveyed away all 
 her “ right, title and claim, as well of soil as jurisdiction,” to the terri¬ 
 tory northwest of the river Ohio extending to low water mark, and, 
 consequently, in speaking of concurrent jurisdiction over the river, she 
 must have meant the “ main, the permanent river” which she had 
 not conveyed away. But even if she did mean more than this in her 
 compact with Kentucky, that could not alter or affect the rights of 
 Ohio; for she was no party to that compact, and her rights were se¬ 
 cured by the deed of cession itself, by which Virginia conveyed to 
 the United States “ all her right, title and claim, as well of soil as ju¬ 
 risdiction,” to the territory northwest of the Ohio. See her deed of 
 cession or the act authorizing it, in the 1st vol. of the R. Code, p. 40. 
 And this, as we have seen, extended to low water mark. Of course 
 beyond that mark Virginia, at the time of her compact with Ken¬ 
 tucky, had no jurisdiction to share with the states on the opposite 
 shores. 
 
 I take it, therefore, that the concurrent jurisdiction mentioned in the 
 Kentucky compact over the river meant the main permanent river, and 
 if so, then Virginia has exclusive jurisdiction to low water markon the 
 Virginia side. But if Virginia’s jurisdiction is concurrent with Ohio to 
 high water mark on the Ohio side, then Ohio’s jurisdiction is concur¬ 
 rent with Virginia to high water mark on the Virginia side; and the 
 citizens of Virginia, in that event, are subjected to all the inconvenien¬ 
 ces that we have spoken of, when treating of the importance of the 
 strip of land between high and low water mark to the citizens of Ohio, 
 for the purposes of trade and the erection of wharves and machinery 
 connected with the use and navigation of the river. Now I cannot for 
 a moment believe that Virginia intended to give up the exclusive juris¬ 
 diction she possessed over the shores on the Virginia side of the river. 
 In her compact with Maryland, 1 vol. R. C. p. 54, it is expressly pro¬ 
 vided that “the citizens of each state respectively shall have full pro¬ 
 perty in the shores of the Potowmac river adjoining their landsand 
 in the 21st article of our constitution, already referred to, Virginia 
 gives up to Maryland, Pennsylvania, North and South Carolina the 
 territories contained in their charters, “ except the free use and naviga¬ 
 tion of the rivers Potowmac and Pohomoke, with the property of the 
 Virginia shores or strands bordering on either of the said rivers, and 
 all improvements which have been or shall be made thereon.” If it 
 was important to us to retain the Virginia shores on the Potowmac, it 
 was equally so in regard to the Virginia shores on the Ohio. 
 
 I conclude, therefore, that Virginia has exclusive jurisdiction to low 
 water on this side of the river, and Ohio has exclusive jurisdiction on 
 
47 
 
 [Doc. No. 17.] 
 
 the other, while over the main permanent river they both possess con¬ 
 current jurisdiction; the ultimate property in the whole river to low 
 water mark on the Ohio side remaining in Virginia, so that if the river 
 should at any time suddenly change its course, leaving its present bed 
 bare, the land thus deserted would belong to Virginia up to low water 
 mark on the Ohio side. 
 
 But it is said that it is important to Virginia to possess concurrent 
 jurisdiction with Ohio to high water, or even farther when the river is 
 high, in order to protect the property of her citizens while passing up 
 and down the river; that if Ohio’s jurisdiction is exclusive to low 
 water mark then, it is said, a boat passing down the river would, so 
 soon as it passed a line on the surface of the water corresponding with 
 low water mark, be in the limits of Ohio, and consequently if there 
 should be a Virginian on board with slaves, they, by the laws of Ohio, 
 would be free. 
 
 But this, I apprehend, is a mistaken view entirely of the matter. 
 The protection to the property of a citizen of Virginia in such a case 
 would rest upon much higher and safer ground—upon the settled and 
 well ascertained laws of nature and of nations, which declare every 
 navigable river to be a common highway for the purposes of naviga¬ 
 tion, free to the use and enjoyment of all. And this principle applies 
 not only to rivers forming the boundary between different states, but 
 to those even which lie in the territory of one state exclusively. In 
 such a case the state owning the river cannot obstruct it so as to pre¬ 
 vent its navigation by others; its right in such a case being only that 
 of a limited property which it cannot exert but by respecting the rights 
 of others. Vattel, B. 1, sec. 272. And the same author in B. 2, sec. 
 124, after saying that the open sea, the use of which is inexhaustible, 
 cannot fall under the domain or property of any one, “ because in that 
 free and independent state in which nature has produced them they 
 may be equally useful to all men,” adds “Even the things which in 
 other respects are subject to domain, if their use is inexhaustible they 
 remain common with respect to that use. Thus a river may be sub¬ 
 ject both to domain and empire, but in quality of running water it re¬ 
 mains common.”—“Nature, who designs her gifts for the common ad¬ 
 vantage of men, does not allow of their being kept from their use when 
 ihey can be furnished with them without any prejudice to the proprie¬ 
 tor.” And sir William Scott, treating of the British title to the four 
 seas, said, that “ in the sea, out of the reach of cannon shot, universal 
 ise was presumed in like manner as a common use in rivers flowing 
 .hrough conterminous states was presumed.” 
 
 So there is a common use in rivers as well as the sea; and when 
 Virginia, in her compact with Kentucky, stipulated for the free use and 
 navigation of the Ohio river to all the citizens of the United States, she 
 lid nothing more than declare the principles of the laws of nature and 
 }f nations applicable to that subject. 
 
 Who then has jurisdiction over persons and vessels at sea ? In his 
 idmirable treatise on the law of nations, contained in the first volume 
 }f his commentaries, p. 26, judge Kent lays down the doctrine that 
 ‘no nation has any right of jurisdiction at sea, except it be over the 
 
48 
 
 [ Doc. No. 17. ] 
 
 persons of its own subjects and its own vessels; and so far, territorial 
 jurisdiction may be considered as preserved ; for the vessels of a nation 
 are in many respects considered as portions of its territory, and persons 
 on board are protected and governed by the law of the country to 
 which the vessel belongs.” This doctrine is also laid down by Gro- 
 tius, Rutherforth and Yattel, and is fully recognized in the case of the 
 United States v. Palmer, 3 Wheaton 632, in which it was held that 
 our courts had no jurisdiction to try a citizen of a foreign state for a 
 crime committed in a foreign vessel at sea. The court say, “ These 
 are offences against the nation under whose flag the vessel sails, and 
 within whose particular jurisdiction all on board the vessel are.” And 
 the same principle was contended for by judge Marshall in the celebra¬ 
 ted argument he delivered before congress on the resolutions relative 
 to Thomas Nash alias Jonathan Robins. This individual, being a 
 british subject, committed murder at sea on board a british ship, and 
 fled to the United States. His delivery was demanded by the british 
 government, under the treaty between the two governments providing 
 for the surrender of fugitives charged with murder or forgery commit¬ 
 ted within the jurisdiction of one of the contracting parties, and taking 
 refuge in the country of the other: and the president ordered him to 
 be surrendered. The argument of Mr. Marshall was intended to jus¬ 
 tify the president, and to prove that although there was a concurrent or 
 common jurisdiction of all nations at sea, in a certain sense, yet t: that 
 the jurisdiction of a nation extends to the whole of its territory, and to 
 its own citizens in every part of the world ;” and that consequently our 
 courts had no jurisdiction to try the individual in this case, he being a 
 citizen of Great Britain, and the murder committed on board a british 
 vessel. It was contended on the other side, by Mr. Gallatin and others,! 
 that all nations had a common or concurrent jurisdiction at sea, and 
 therefore each nation had jurisdiction over all offences committed at 
 sea, and consequently the executive ought not to have surrendered the 
 fugitive, who ought to have been, as they contended, tried in our 
 courts. But the argument of Mr. Marshall was considered at the time,! 
 and ever since, as perfectly unanswerable, and may therefore be with 
 propriety referred to as illustrating the question before this court. 
 
 If this be the correct doctrine in regard to the jurisdiction of nation? 
 at sea, the same seems to me to apply to the jurisdiction upon naviga- i 
 ble streams; and that consequently a nation or state having a right tc 
 the free use and navigation of a river, whether by virtue of the laws I 
 of nature or nations, or by treaty with another nation or state, would ij 
 also have jurisdiction over its citizens and their property while engagedJ 
 in navigating such river. 
 
 This may be illustrated by the present condition of things in tilt 
 Oregon territory. By treaty, England and the United States have the 
 joint occupation of that territory. Each has a right to the navigatior 
 of the Columbia river. Under whose jurisdiction are the citizens o 
 the two countries while thus engaged ? Undoubtedly under the juris¬ 
 diction of that country to which they belong. Here is the case then 
 of a joint occupation, or concurrent jurisdiction, if you please, and ye 
 the citizens of each state are under the protection of the laws of theii 4 
 own country. 
 
49 
 
 [ Doc. No. 17. ] 
 
 But suppose the joint occupation were to cease, and each country 
 were to have the exclusive possession of its portion of the territory. 
 For instance, suppose England should consent that our territory should 
 extend to the 49th degree of north latitude, provided we gave her the 
 free navigation of the Columbia river, and we were to do so:* under 
 whose jurisdiction would a citizen of Great Britain be while navigating 
 this stream ? Most unquestionably, under that of Great Britain, al¬ 
 though the river itself would be the absolute property of the United 
 States. 
 
 The same principles, it seems to me, apply to the navigation of the 
 Ohio. Every citizen of the United States has a right to the free use 
 and navigation of that river, and while thus engaged is under the pro¬ 
 tection of the laws of the state to which he belongs, just as a citizen 
 of the United States at sea is under the protection of the flag of the 
 United States. 
 
 Here then is the security to Virginia citizens with their property. 
 While engaged in the lawful purpose of navigating the Ohio, they are 
 protected by the laws of Virginia, no matter whether they be on the 
 Virginia or Ohio side of low water mark, so they be employed in na¬ 
 vigating the river. And this right carries with it the necessary means 
 to its enjoyment: consequently a Virginian would have a right to moor 
 his boat to the shore and take on fuel; for this is necessary to the en¬ 
 joyment of the navigation of the river. This was insisted on by the 
 United States in 1792, when Spain owned the mouth and both banks 
 of the lower Mississippi. It was then contended that we were entitled 
 by the law of nature and of nations to the navigation of that river to 
 the ocean, subject only to such modifications as Spain might reasona¬ 
 bly deem necessary for her safety and fiscal accommodation : and this 
 claim, with the qualifications attached to it, says judge Kent, “ was 
 well grounded on the principles and authorities of the law of nations.” 
 Kent’s Comm. 1st vol. p. 35. If this was the case in regard to the 
 Mississippi at a time when it was in the dominions of a foreign nation, 
 how much more in regard to the Ohio, lying within the territory of 
 states that are members of the same federal union. 
 
 Now it seems to me that this is placing the rights of Virginia upon 
 .much safer ground, in relation to her slave property, than the concur¬ 
 rent jurisdiction claimed for her over the Ohio river at every stage of 
 the water. For this concurrent jurisdiction would extend only as far 
 as the Virginia line dividing her from Kentucky extends. So soon as 
 that line is passed, Kentucky has concurrent jurisdiction with Indiana 
 over the river. What then becomes of the protection to our property, 
 which has passed out of the concurrent jurisdiction of Virginia and 
 Ohio into that of Kentucky and Indiana? Are we to look to Ken¬ 
 tucky to protect it, because she is a slave state also ? This she might 
 ar might not do, as she chose. But suppose Kentucky should follow 
 the counsel of some of her politicians, who are now strongly urging 
 her to abolish slavery, and should become a free state; where then 
 would be our security? A Virginia boat, in such a case, having slaves 
 
 I- - --- 
 
 y * Note by the judge. This was written before the late treaty between the United 
 States and Great Britain. 
 
 7 
 
 | 
 
50 
 
 [ Doc. No. 17. ] 
 
 on board, descending the river, would, so soon as it passed the limits of 
 Virginia, find itself in the jurisdiction of two nonslaveholding states; 
 and then, according to the argument of the counsel for Virginia, the 
 slaves must necessarily be free. 
 
 Surely this view of the subject never suggested itself to their minds, 
 or they would have recoiled from placing the security of the property 
 of Virginia citizens upon a ground that might prove so utterly worth¬ 
 less and unavailing. This only serves to shew the importance of de¬ 
 liberation, and the necessity of viewing questions in all their ultimate 
 bearings, (especially those involving great interests, like the present,) 
 before we come to a decision. 
 
 Placing the rights of our citizens and their property upon the broad 
 and unquestionable right that every citizen of the United States pos¬ 
 sesses to the free use and navigation of the Ohio river, they have a se¬ 
 curity that will be availing under all circumstances and in all time to 
 come. 
 
 From all that has been said, the conclusion follows that the accused, 
 being citizens of Ohio, and the offence with which they are charged 
 having been committed within the territorial limits of Ohio, are not 
 subject to the jurisdiction of the courts of Virginia, and ought there¬ 
 fore to be discharged. 
 
 Clopton and Wilson, J. concurred in the opinion of Johnston, J. 
 
 Opinion op Baker, J. Judge Baker remarked, that obvious neces¬ 
 sity and propriety required that the court should consider our great 
 western rivers as public navigable watercourses, and treat them ac¬ 
 cording to established legal principles applicable to such highways. 
 It is true the supreme court of the United States, in the case of Hand- 
 ly’s lessee v. Anthony, 5 Wheaton’s Rep. which was a controversy in 
 respect to territory, and which was much relied on by the counsel for 
 the state of Ohio, decided that the low water mark, under the circum¬ 
 stances of that case, was the proper boundary : and although a grant 
 of land to a citizen, bounded upon a fresh water stream or river not 
 navigable, and where the tide neither ebbs nor flows, extends to the 
 channel of such river, (usque ad filum aquce) yet it seems to be esta¬ 
 blished by unquestionable authorities, that a grant of land bounded 
 upon a navigable river, such as the Ohio, may and very often does ex¬ 
 tend to the edge of the water only, that is to say, to high water mark; 
 and such, I think, is the doctrine properly applicable to the subject 
 under consideration. But be this principle as it may in reference to 
 the circumstances of this case, my opinion is that the difficulties 
 which the supreme court, in the case before referred to, seem to think 
 will be produced by establishing any other boundary in respect to 
 territory than the low water mark, do not apply, under the facts of this 
 case, with like force and propriety to the mere question of jurisdiction, 
 and are not therefore, in this case, of overruling importance. The 
 high water within the banks, or if not, the state of the water in the 
 river at any given time, I apprehend could be ascertained with more 
 certainty than the low water mark ; and the adoption of either the 
 
51 
 
 [ Doc. No. 17. ] 
 
 high water mark or the state of the water for the time being, as the 
 preferable memorial of boundary, will leave to each state, as I pre¬ 
 sume must have been originally intended, the right of jurisdiction over 
 the whole and every part of the river, of which of course neither state 
 could complain. The jurisdiction of both states would in that case 
 be concurrent and coextensive, and Virginia could of course punish 
 any citizen of her own state or of Ohio for any violation of her laws 
 committed on the river, and that too whether committed on board of 
 her own vessels or otherwise ; and I apprehend that her right to do 
 so could not be ousted or impaired by the consideration that the vessel 
 in which the offence was so committed happened then to be in part 
 resting upon or touching the shore on the Ohio side ; for the right to 
 touch, nay even to make fast to the Ohio shore, arises necessarily from 
 the right to navigate, and without which the privilege of navigation 
 would be greatly impeded. That there are difficulties in this case of 
 no ordinary character, no person, I think, can doubt; and in the very 
 able argument of the counsel for the state of Ohio, to demonstrate the 
 existence of such difficulties, it was contended that the establishment 
 of high water mark as the boundary would greatly obstruct the citi¬ 
 zens of that state in the navigation of the Ohio river; that it would 
 prevent the construction of wharves and other fixtures necessary to 
 the free enjoyment of that important right, and that the adoption of such 
 a boundary would carry with it “perpetual annoyance, collision, and 
 never-dying controversies between the two states.” Now in reply to 
 this and all such speculative arguments, I submit that it is only neces¬ 
 sary to refer to a subsequent part of the same counsel’s discussion, in 
 which he contended that in the compact between Virginia and Ken¬ 
 tucky, it is declared that the use and navigation of the Ohio river shall be 
 free and common to the citizens of the United States, and that the 
 respective jurisdictions of Virginia and Kentucky shall be concurrent 
 with the states that may possess the opposite shores of the said river. 
 The word shore, I know it is said, according to the legal writers, has 
 a peculiar technical signification ; in other words, that that term means 
 the space of ground between high and low water mark. Such a 
 meaning, I think, cannot be made properly to apply in this case, and 
 can only be given when applied to watercourses in which there is a 
 regular periodical ebb and flow of the tide. But besides this, to ob¬ 
 viate the supposed inconveniences above referred to, it seems to me it 
 is necessary to advert to one or two facts in this case, about which no 
 difference of opinion exists. Ohio, 1 think, has both the right of ju¬ 
 risdiction and navigation. What possible inconvenience, then, can 
 attach to Ohio, upon the establishment of the high water mark, or the 
 state of the water for the time being, as the proper boundary between 
 the two states? It results, it seems to me, from the very nature and 
 character of their relations, shewn by the history of this transaction, 
 that although Virginia may be the owner of the soil of the shore on 
 the northwest side of the river, yet Ohio would, despite the claims of 
 Virginia, have the unquestionable right to establish such ports and 
 erect such wharves, buildings and other things as might be necessary 
 for the carrying on of commerce and navigation on any parts of the 
 
52 
 
 [ Doc. No. 17. ] 
 
 shore that may be conveniently used for such erections; taking care 
 to impede as little as possible Ohio river itself as a public right of way : 
 and this would leave Virginia, as before suggested, entitled to the soil, 
 and Ohio to an easement over or connected with it, sufficient for all 
 commercial purposes. 
 
 Respectfully differing as I do with the majority of the court in this 
 case, and believing that the prisoners ought to be punished for the 
 offence charged against them in the indictment, I have deemed it pro¬ 
 per to state briefly the grounds upon which my opinion is founded, 
 and leave this deeply important and interesting subject to be more 
 fully discussed and elucidated by some one or more of the judges 
 whose opinions have led them to the same result. 
 
 Opinion of Fry, J . The question before us is the construction of 
 the deed of cession by Virginia of the northwestern territory. It is 
 too late in the day to enquire into the right and title of Virginia to the 
 lands ceded. It is beating the air to argue the question before a Vir¬ 
 ginia court, sitting under her constitution and laws. Congress having 
 accepted that cession, and created the state of Ohio out of the lands 
 ceded, the state of Ohio, as claiming under the United States, is estop¬ 
 ped to gainsay the title of Virginia. 
 
 But what is the extent of the cession ? By her deed Virginia con¬ 
 veys to the United States “all her right, title and claim, as well of 
 soil as of jurisdiction, which the commonwealth hath to the territory 
 or tract of country, within the limits of the Virginia charter, situate, 
 lying and being to the northwest of the river Ohio,” to and for certain 
 uses and purposes, and on certain conditions. 
 
 One of these conditions was “ that the territory ceded shall be laid 
 out and formed into states containing a suitable extent of territory,” 
 &c. “and that the states so formed shall be distinct republican states, 
 and admitted members of the federal Union ; having the same rights 
 of sovereignty, freedom and independence as the other states.” 
 
 Congress afterwards passed the ordonnance establishing the north¬ 
 west territory ; and by her act of 1 Revised Code, p. , Virginia 
 
 confirmed the ordonnance, and therein designates the boundary of the 
 eastern state to be created, as that of the “ Ohio.” And by the act 
 creating the state of Ohio and admitting her into the Union, she is 
 bounded “south by the Ohio river.” 
 
 All these terms descriptive of boundary, I suppose to mean the same 
 thing. They make the “ Ohio river” the boundary; and the question 
 is what is meant by the use of the word “ river.” 
 
 Twenty-five years ago this was decided by the supreme court of 
 the United States in the case of Handly’s lessee v. Anthony, 5 Wheat, 
 to mean the permanent river; that is the river within low water mark. 
 In that case it was held that the states of Ohio and Indiana extended 
 to the low water mark of the river. The chief justice admits that the 
 question was not without difficulty: but that the mind would find it¬ 
 self embarrassed with insurmountable difficulties in coming to any 
 other conclusion. And though difficulties may arise from the bounda¬ 
 ries adopted by him, I apprehend that equal, if not greater, would en¬ 
 sue from adopting any other. 
 
53 
 
 [Doc. No. 17.] 
 
 This decision I consider one in point, and not obiter as contended. 
 It was necessary to decide the very question whether the river should 
 be taken to mean the low water, or the ordinary or other height of 
 the stream. The case shewed that the connexion between the up¬ 
 per and lower part of the river was formed only by the water of the 
 river, and formed when the water was at its ordinary stage : that it 
 required but ten feel? above the lowest water, and that the river rose 
 from forty to fifty feet. Nor did the fact that Indiana had always be¬ 
 fore exercised jurisdiction determine the case. The question was one 
 of right between Indiana and Kentucky, raised by conflicting grants, 
 and the court was obliged to say whose grant was lawful. Kentucky 
 by her very patent, the court was bound to suppose, had assumed or 
 asserted the right of domain and jurisdiction. 
 
 It is worthy of consideration whether, after twenty-five years, du¬ 
 ring which this decision of the supreme court has been supposed to 
 give the law correctly and been acted on by the people and courts of 
 Ohio (see 11 Ohio Rep. 138) and perhaps by the people and courts of 
 Virginia immediately bordering the Ohio river, it would be desirable or 
 proper to attempt to go behind it and convict it of error; unless in¬ 
 deed the error were very manifest and looked us directly in the face. 
 But this can hardly be predicated of the decision in question ; if it 
 could of any decision ever made by that great judge. For it is ac¬ 
 knowledged that great difficulties surround the question, view it as we 
 will; and the decision is chiefly assailed because of a supposed danger 
 or collision which has not yet occurred, and which at the date of the 
 cession was not probably anticipated, and therefore guarded against. 
 To the authority of this decision we have now to add prescription. 
 For 25 years since this decision, and for the whole period of her pre¬ 
 vious existence, Ohio has been in possession of the territory to low 
 water mark. She has granted it by patent, and made every use of it 
 which her wants and convenience required, and of which as property 
 it was susceptible ; in short, has treated it as her domain, and extended 
 over it her jurisdiction and laws. If this be not found in the verdict, 
 it is to be found in part in the reports of the decisions of her supreme 
 court, and is matter of notoriety and common observation. 
 
 It was said that there was no authority for the proposition of judge 
 Marshall that a grant to a sovereign, binding upon a river or arm of the 
 sea where the tideebbs and flows, would carry the grant to such so¬ 
 vereign to low water mark or ebbtide: But it is fairly deduced, from 
 what seems well settled, that a sovereign owning the territory upon 
 such river or sea owns to such low water mark. “ It is admitted,” 
 says Sir Matthew Hale De Jure Maris. Harg. Law Tracts 12, “ that 
 de jure communi, between high and low water mark doth prima facie 
 belong to the king.” Again : “ The next evidence of the king’s right 
 and property in the sea and the arms thereof is his right of property to 
 the shore, and maritima incrementa. The shore is that ground be¬ 
 tween the ordinary water and low water mark. This doth prima facie 
 and of common right belong to the king, both in the shore of the sea 
 and the shore of the arms of the sea.” 
 
54 
 
 [Doc. No. 17.] 
 
 Now when one state grants to another state the soil and jurisdiction 
 upon such a river or sea, or creates a new state or sovereignty bounded 
 by such river or sea, where the tide ebbs and flows, does it not follow 
 prima facie that this new sovereignty would enjoy, and be intended tc 
 enjoy, this right de jure communi of owning the shore and passing tc 
 low water or ebbtide ? Does it not follow if no exception be made, i 
 from the character of the grantee and the knowrf prerogative or right 
 incident to such grantee so situated ? Now in the case in question the . 
 United States were the grantees, themselves sovereign, and expressly 
 taking in trust to create a certain number of other sovereign states, 
 having the great river Ohio for their boundary. This river, though 
 not navigable in the sense of the common law, is so in fact, and the 
 incidents of a navigable water at the common law apply to it upon 
 every reason from which those incidents arise at the common law. j> 
 That the rise and flow of the Ohio is casual and variable, instead ot 
 diurnal, and great instead of small or trifling, requires a fortiori the 
 common law incident before mentioned pertaining to the sovereign. 
 
 It could not be intended that a friendly sovereign, granting to another 
 friendly sovereign territory so situate and bounded, designed without an 
 express reservation, to restrict this common law incident, to retain the 
 right to pass the river, and claim jurisdiction over the soil beyond. Sucha 
 jurisdiction would be too inconvenient to both parties to suppose it in¬ 
 tended or desired. 
 
 The passage cited from Lord Hale proves also that the space be¬ 
 tween high and low water mark is the shore; and Virginia in her com- i 
 pact with Kentucky recognizes the states opposite to her on the Ohio 
 as owning the shores of the river. See 5 Bacon 499, Wilson’s ed. 
 
 A distinction may well be taken between the grant of a patent to A 
 for (say) 100 acres of land bounded south by the river, whilst Virginia : 
 retained the right of property and jurisdiction over the country itself, ■ 
 and the grant of the whole country to a sovereign nation. Adopting 
 the analogy of the sea or tidewaters, the nation might be deemed to 
 retain the right to the shore in the case of the private grant, and not 
 to do so in the case of the grant to the nation. The latter might well 
 be deemed to take the public rights to the shore, as appurtenant to her 
 empire in the same manner as they had been held by the granting 
 sovereign. 
 
 What is said (16 Peters 411) in the case of the oyster beds of New 
 Jersey may be referred to as confirming this distinction, and the con¬ 
 struction put on the Ohio grant, in 5 Wheat. “ It is not a deed con¬ 
 veying private property, to be interpreted by the rules applicable to 
 cases of that description. It was an instrument upon which was to be 
 founded the constitutions of a great political community, and in that 
 light it is to be regarded and construed.” Ch. just. Taney, of the grant 
 to the duke of York, &c. 
 
 I conclude that Handly’s lessee v. Anthony was rightly decided ; that 
 the shores of the river on the northwest side belong to Ohio; and that 
 the shores extend to low water mark. The claim to go to the high 
 water, or the top of the bank on the other side, I take to be out of the 
 question in such a river as the Ohio. For the greater part of the year, 
 
55 
 
 [Doc. No. 17.] 
 
 ind for many years together the entire year, large spaces of land are 
 left bare by the recession of the water, and devoted to various pur¬ 
 poses of industry and art. Boats of all kinds are built upon it; coals 
 are mined ; railways for logs, coals and merchandize constructed ; water 
 pipes laid; warehouses and perhaps other tenements built. Are all 
 these, and the numerous people connected with them, subject to the 
 taws of Virginia ? Of what annoyance would such a jurisdiction be 
 to the people of Ohio? And how little less so to those of Virginia? 
 With what convenience could Virginia exercise jurisdiction over a 
 small strip of variable shore on the opposite side of a great river for 
 more than 300 miles? Such a jurisdiction would not be desirable ; 
 and, as was said by judge Marshall, could never have been intended. 
 It is said (3 Wheat. 386) that the jurisdiction of a state is “coexten¬ 
 sive with its territory, coextensive with its legislative power.” But 
 though the soil and jurisdiction of the shore, from low water to high, 
 belongs to the state of Ohio, is this inconsistent with a jurisdiction in 
 Virginia over the water of the shore, covering the same space and 
 within the usual banks of the river? May not Virginia hold divisum 
 imperium with Ohio; so that when the river is full within its banks 
 her jurisdiction goes to the edge of the stream, and when it recedes 
 even to the lowest line the jurisdiction of Ohio follows it? 
 
 The terms of the grant are that Virginia cedes her rights of “ soil 
 and jurisdiction to the territory or tract of country lying and being to 
 the northwest of the river Ohio.” This means, we have seen, the 
 permanent river, as to the rights of soil and property; and we have 
 supposed such to have been the intent, from the character of the parties, 
 the nature of the stream, the objects of the grant, and the convenience 
 and necessities of the states to be created. But whilst the term “river” 
 is thus limited, for the convenience and necessities of Ohio, when at 
 low water, may it not also for the convenience and necessities of Vir¬ 
 ginia, when it is high, be enlarged or rather allowed to retain its 
 wonted and appropriate meaning ? Give it its ordinary sense of “ a 
 large stream of water flowing in a channel towards the ocean,” (Web¬ 
 ster); and whilst for the convenience and necessities of Ohio we 
 bound it as the seasons bound it, so as to give her the soil and jurisdic¬ 
 tion of a part of this channel, which the receding water allows her to 
 use, and has made continuous with her other territory, let the seasons 
 bound it also for Virginia in the same channel, as to the use and juris¬ 
 diction of the water, for equally cogent reasons. No violence to the 
 words is done by this construction. Ohio terminates at the “ stream of 
 water flowing in its channel,” and Virginia goes not beyond. She gives 
 the soil to Ohio when deserted by the water, but in retaining the flow¬ 
 ing stream she retains nothing which she had granted. The grant 
 should be construed for the benefit of both parties if it can. If limited 
 as to soil for strong reasons, it should not be limited to the prejudice of 
 Virginia, further than those reasons require. She does not grant the 
 stream in terms ; and no reasons of convenience or necessity compel us 
 to construe it beyond the grant of the soil. She retains the river 
 within its usual banks; but does not extend it to any thing beyond 
 the rise of the water, or from which it may at any time recede. 
 
56 
 
 [ Doc. No. 17. ] 
 
 There is a manifest convenience to Virginia in retaining jurisdiction 
 over the river. As a practical question it would be difficult to fix the 
 precise limits in the stream of the low water line, during the flow of 
 high or ordinary water. For the purposes of navigation and for the 
 service of civil and criminal process it is important that jurisdiction 
 should be general over the flow of the stream, within its banks. If it 
 stop at any line within the stream, it might often present questions 
 difficult and embarrassing, and perhaps not susceptible of solution. 
 
 If Virginia has not reserved this jurisdiction she may be in a worse 
 condition than Ohio. For if Ohio has exclusive jurisdiction over the 
 water to the line of low water by her grant, and may take concurrent 
 jurisdiction over the residue of the stream, without regard to low wa¬ 
 ter, by virtue of the compact with Kentucky, as she has granted 
 nothing to Virginia, then the latter state would have less jurisdiction on 
 the river than Ohio. What is the precise meaning of “ concurrent ju¬ 
 risdiction,” I am not prepared to say. It strikes me as equivalent to 
 “common ,” and that the “river” in connexion with “jurisdiction” in 
 the 7th clause, is coextensive with the “river” in the beginning of the 
 clause, in connexion with “ use and navigation.” Virginia evidently 
 supposed, at the time of her compact with Kentucky that she had ju¬ 
 risdiction over the whole river. She could not have thought that there 
 was any part of it without her jurisdiction, and that she was making 
 herself unequal with the other parties. 
 
 There are some analogies of the common law which favour the fore¬ 
 going construction of the grant of Virginia, in severing the jurisdiction 
 of the water and the land, between high and low water (Saville 14. 
 Inhabitants of Ipswich vs. Brown as cited Angel on Water Cour. Co. 
 Litt. 122, a. 5 Co. Rep. Constable’s case, Res. 2.) According to the 
 case from Saville it would seem the water and soil of a river may be 
 severed and belong to different persons; that the ownership may be 
 modified by agreement, as in the case of any other property. If it 
 may be done by express words, I presume it may be inferred by con¬ 
 struction and from circumstances, if adequate; for it is matter of 
 agreement or intent. And we have endeavoured to shew that the 
 words of the grant admit of, and in the intendment of the parties re¬ 
 quire this severance. Constable’s case, 5 Co. 107. “ In this case it 
 
 was resolved by the whole court that the soil on which the sea flows 
 aud ebbs, to wit, between the high water mark and the low water 
 mark, may be parcel of the manor of a subject. 16 El. Dy. 326 b. 
 acc.—and so it was adjudged in Lacy's case, Trim 25 El. in this court. 
 And yet it was resolved that whore the sea flows and has plenitudincm 
 maris, the admiral shall have jurisdiction of every thing done on the 
 water, between the high water mark and low water mark, by the ordi¬ 
 nary and natural course of the sea; and so it was adjudged in the said 
 case of Lacy, that the felony committed on the sea adplenitud. maris, 
 between the high water and the low water mark, by the ordinary and 
 natural course of the sea, the admiral should have jurisdiction of; and 
 yet where the sea ebbs, the land may belong to a subject, and every¬ 
 thing done on the land when the sea is ebbed shall be tried at the com¬ 
 mon law for it is then parcel of the country, and infra corp. cotJiitat. 
 
57 
 
 [Doc. No. 17.] 
 
 and therewith agrees, 8 E. 4—19 a—so note that below the low water 
 mark the admiral has the sole and absolute jurisdiction ; between the 
 high water mark and low water mark the common law, and the ad¬ 
 miral have divisum imperium interchangeably, as is aforesaid to wit, 
 one super aquam, and the other super terrain .” 
 
 The courts of Ohio would seem to have admitted the construction 
 for which I have been arguing : for whilst they have admitted and 
 acted upon the case of Handley’s lessee v. Anthony (11 Ohio Rep. 
 138) as to granting the soil to the low water mark, they have held 
 that Virginia had jurisdiction over the whole river, that she had never 
 granted it away, and that the same was concurrent with Ohio, by vir¬ 
 tue of the compact with Kentucky. At least such was the decision 
 )f judge Read of Cincinnati in the matter of the slave Watson deci- 
 led in the supreme court of Ohio at Cincinnati, Feb. 1845. Reported 
 2 West. Law Journal 279, 333. As the book is perhaps not to be 
 found here I may be excused for making a liberal extract. 
 
 It was a writ of habeas corpus. The return inter alia stated, the 
 'espondent was returning from Arkansas to Virginia with the slave ; 
 hat the steamer arrived in the river opposite Cincinnati before day on 
 he 31st January 1845, shortly after which Watson escaped ; that he 
 ,lid not intend to permit Watson to land on the Ohio shore, but to 
 ransfer him to another boat and continue his journey without delay, 
 ind it was proved by witnesses that the boat arrived on the morning 
 stated before day ; that about daylight she was lying at die wharf, in 
 he usual position of boats, her bow about 20 or 30 feet from shore 
 nade fast, and with her gang ways out and fires damped down ; that 
 ;he was from 25 to 50 feet within low water mark, measuring from 
 ler extreme outside. 
 
 After disposing of other parts of the argument, <£ It is claimed” says 
 he judge, “ that the Ohio river is the boundary of Ohio, and that her 
 urisdiction consequently extends to the middle of the river ; that Vir¬ 
 ginia and Kentucky have no right to claim to low water mark on the 
 lorthwest side of the river ; that the deed of cession of the northwest 
 territory by Virginia could not be referred to as fixing the boundary 
 ine, as she had no right to the territory ; that her original charter, 
 inferring upon her a right to the lands, had been annulled by the 
 :rown; and that the French had seized the territory, and that it had 
 >nly been regained by the blood and common treasure of all the co- 
 onies. It is quite too late to question the validity of the deed of ces- 
 ■ion ; the magnanimity and patriotism of the Old Dominion, the mo- 
 her of states, was acknowledged and the grant accepted, which estops 
 .11 denial of the deed. The courts of Ohio have recognized it in sus- 
 aining the titles of all the lands held by grant from Virginia in the 
 nilitary district. 
 
 “ By this deed the lands to the northwest of the Ohio river were 
 :eded. What could have been the object of this phraseology? Not, 
 :ertainly, to retain the land in the bed of the river and the islands in 
 he stream. These would be of but trifling value compared with the 
 ;reat gifts already made. It unquestionably was to secure the full and 
 ree use of navigating the river, without hazarding any interference 
 8 
 
58 
 
 [Doc. No. 17.] 
 
 with her slaves navigating the liver, by extending her jurisdiction 
 over the water in the bed of the stream. She foresaw that difficulties 
 would arise in respect to the jurisdiction over the river, by the state; 
 bordering on either side ; and to put all dispute at rest, in her compact 
 for setting off Kentucky as a state, she declares that the jurisdiction 
 over the river should be common or concurrent to the states border 
 ing upon it. Thus, for the service of civil and criminal process i 
 has been repeatedly decided by our courts that the jurisdiction o 
 Ohio and Kentucky was concurrent over the water of the river, with 
 out reference to high or low water mark. True, it has been decides 
 if a boat was attached to either shore, for the purpose of civil or crimi 
 nal process, the jurisdiction was exclusive in the state to which it wa: 
 attached. Whatever may be the boundary line for determining th< 
 rights of property, it is clear that the state of Ohio, for other purposes 
 has only a concurrent jurisdiction over the water within the banks o 
 the river. But for the purposes of navigation what is the jurisdictiot 
 upon the river ? The Ohio river is declared to be the common high 
 way of the citizens of the U. States. It is as free to the people o 
 Kentucky and Virginia as it is to the people of Ohio. But it is con 
 tended that the people of Ohio have the right to go down to the rive 
 and say to the people of Virginia and Kentucky and all others, yot 
 shall not navigate the Ohio river this side of the middle of the strean 
 with your slaves. If you come this side of the middle of the strean 
 by accident, mistake, or are driven by the force of winds, or ice, or b; 
 distress, our laws authorize us to take from you your slaves. If yoi 
 land upon our shore, or are driven there by any cause, your slaves ar 
 free. The effect of the whole matter is to deny the right to navigaf 
 the Ohio with a slave. For it is impossible oftentimes to avoid cross 
 ing the middle line of the river; sometimes to avoid collisions witl 
 other boats, driftwood, ice,—to avoid sandbars and ripples in lov 
 stages of water, and from many other causes which may arise. I 
 this view could be sustained in law, it would be lamentable indeed 
 It would make the Ohio river in truth what it has been said that it 
 name signifies—the river of strife,—the war river,—the river o 
 blood. The people on the one side would attempt to free the slave i 
 on the river : the people on the other would regard it as mere robbe 
 ry, and would defend their property. But such is not the law. TheS' 
 difficulties were foreseen and guarded against by the foresight am 
 wisdom of Virginia, and she has, by the means above named, havin: 
 dominion over the whole river and the lands on both sides, secured t 
 all, as far as their interests were concerned, a common jurisdiction 
 The jurisdiction is over the water itself and the bed of the stream 
 and not confined to fixed lines. Thus a master navigating the rivet 
 whilst upon the water, is within the jurisdiction of Virginia or Ken 
 tucky, for the purpose of retaining the right to his slave. And if th 
 slave escape from the boat, it is an escape from the jurisdiction of on 
 state into another, within the meaning of the constitution of the Uni 
 ted States, and act of congress. 
 
 “ This view is not opposed by the fact that the boat may, for th 
 purposes of the ordinary navigation by the river, be made fast to th 
 
59 
 
 [Doc. No. 17.] 
 
 Ohio shore. The right to use the shore for the purpose of navigation 
 is incident to the right to navigate, and. does not change the relation 
 of master and slave.” 
 
 Thus it appears that the courts of Ohio have admitted the jurisdic¬ 
 tion of Virginia over the water of the Ohio, without regard to the low 
 water line ; and that they claim and exercise a similar jurisdiction by 
 virtue of the compact with Kentucky. They construe the term 
 “river” in the compact, in connexion with “jurisdiction,” as em¬ 
 bracing the whole water of the river within its banks. Of course 
 they would extend this jurisdiction upon the Virginia shore as far as it 
 may be carried on the Ohio shore. 
 
 But though Virginia has thus jurisdiction super aquani , it remains to 
 enquire what is the extent or effect of this jurisdiction, and how it ap¬ 
 plies to the acts of the prisoners. It does not extend to the soil be¬ 
 tween high and low water. For example, Virginia could not grant the 
 right to mine for coal or salt in it, or to build permanent structures 
 upon it. When overflowed, her rights are those of the jus publicum, 
 in a navigable water; her jurisdiction like that of the admiralty and 
 common law between high and low water. What are all her public 
 rights in the “ overflow,” I will not attempt to define. Doubtless they 
 extend to navigation, passing and repassing, and may embrace every 
 use of the water consistent with the ownership of the soil beneath in 
 Ohio. 16 Peters 421, per justice Thompson. 
 
 The jurisdiction may reach to whatever is afloat upon the water. 
 Yet is there no exception to this, nor any limit to the jurisdiction short 
 of the utmost verge of the current? Does it extend to vessels that 
 have entirely passed low water and reached the shore of the Ohio, and 
 there rest upon it, wholly above low water ? and to the acts of persons 
 standing on the shore, at the verge of the water, but in it ? 
 
 We have seen that judge Reed states, it has been decided in Ohio 
 that if a boat be attached to either shore, for the purpose of civil and 
 criminal process, the jurisdiction was exclusive in the state to which 
 it was attached. He perhaps alludes to the case reported 1 West. Law 
 Journal , wherein it was adjudged that an attachment by process 
 from Kentucky, levied on a boat lying at the wharf at Cincinnati and 
 fastened to the wharf, was not lawful. The boat was fully afloat, and 
 lying with her stern at least (if I remember aright) below low water. 
 
 If the principle of this decision be correct, it seems to me to apply 
 a fortiori to the case before us. 
 
 In examining it, we should consider that we are probably deciding 
 the law for the Virginia shore, as well as that for the Ohio. Whatever 
 rights we claim upon her shore, we have perhaps accorded to her upon 
 our own by the grant of concurrent jurisdiction. 
 
 Was it well decided, and proper to be admitted and followed by this 
 court ? 
 
 It seems to me that the principle is expedient, necessary and well 
 founded. 
 
 Over the soil and territory of a state, its jurisdiction is admitted to 
 be exclusive ; and so of every thing upon or within it. A ship or boat 
 cannot, from its nature and uses, be brought further within a state than 
 
60 
 
 [ Doc. No. 17. ] 
 
 to rest upon its shore or be attached by wonted connexions or fasten¬ 
 ings. In a river like the Ohio, binding a state, it cannot be otherwise 
 brought within the state at all. Ships and boats are brought to the 
 wharves and landings of each state, for trade and intercourse; and to 
 hold them, when so brought, as not being in the sole jurisdiction of 
 the state, is to affirm that they cannot be so brought at all, and that 
 all vessels navigating the river, and their crews, cargoes and passen¬ 
 gers, must be of necessity and at all times, at the shore or in the river, 
 subject to the jurisdiction of Virginia, and perhaps to that of Ohio also, 
 under the grant of concurrent jurisdiction. 
 
 Jurisdiction is sometimes constructive, or beyond the actual territo¬ 
 ry, as in the case of a national ship or ambassador. So possession, as 
 of a ship, may be constructive; and the same may be said of the do¬ 
 micil. To attach a boat to the shore, there must be an actual entry 
 within the territory—a permission from the sovereign : and so, to tread 
 upon its soil: and though by controlling conventions or laws one may 
 have a right to do either, yet the limits and jurisdiction of the state re¬ 
 main the same. Things permanently attached to the freehold partake 
 of its dignity and attributes, by the common law. They become a 
 part of it. For the purposes of jurisdiction may they not be equally a 
 part, though attached pro tempore , as long as the connexion lasts? 
 The dignity of the sovereignty seems to require it. It should cover 
 with its aegis every thing that touches its soil, and impart its protection 
 to all property and persons that reach it. Like the altar of refuge or 
 sanctuary, whoever lays hold of it becomes a part of it, and is safe, 
 though he stands without it. 
 
 The peace and good order of the state, the due execution of its own 
 polity and laws, require this construction. Collision and strifes must 
 constantly arise from a contrary doctrine. If constables and sheriffs 
 may levy attachments and executions upon property lying at our 
 wharves, and there make arrests on mesne and final process, infinite 
 mischiefs must ensue. The state is left naked at her borders, and ob¬ 
 noxious to every intrusion. 
 
 States that are washed by the sea, the common highway of nations 
 (as Ohio river is of the United States) enjoy, for their defence and 
 safety, and as a consequence of their territorial domain, the exclusive 
 sovereignty over the ports, harbours, gulfs (within the fauces terrce) and 
 the sea coast for a convenient distance from the land. This distance, 
 I believe, is the range of cannon shot, or three miles. The nation in 
 possession of the shore is at the same time sovereign of the adjacent 
 sea to the above extent. It is deemed essential to the safety and wel¬ 
 fare of nations, and to the due execution of their revenue and other 
 laws. Every port is considered as belonging to the state in which it is 
 situate, and subject to the ruling power. 
 
 Is there no analogous principle for a state bounded by a river? 
 
 It seems to me there should be, and that it should go as far at the 
 least as the decision of the court in Ohio went. If the line of com¬ 
 mon jurisdiction upon a river can be passed at all, and that of sole 
 jurisdiction begin, it must be at the point where the shore of the state 
 is reached in the manner stated. 
 
61 
 
 [Doc. No. 17.] 
 
 It is no answer to say that the principle may be abused or perverted : 
 as that one might swing a boat, attached to a rope, out into the stream, 
 or even near the opposite shore, to annoy or injure the traders upon the 
 river. Such a case would be extreme, and the connexion merely 
 colourable and in ala fide, and as such disregarded. 
 
 The case of Strother v. the City of New York, reported 19 Johns, 
 seems contra. But it is to be observed that this case presented the 
 question as between two counties within the same state. The great 
 principle, as derived from the eminent domain and as applicable to na¬ 
 tions, was not involved. The same reasons did not and could not exist. 
 The difference between the parties may warrant a different conclusion. 
 It were unworthy to liken the jurisdiction and authority of a nation to 
 that of a county. The difference in the parties here may warrant a 
 different conclusion, as we have seen it does in the case of grants to 
 individuals and nations. But even in this case it may be doubted how 
 the decision would have been, had the boat been resting, in any part 
 of her, above the low water in King’s county. The whole boat lay 
 below low water, and without the boundary of King’s county. 
 
 Apparently, the distinction before alluded to between the admiralty 
 and the common law will apply here. Of wreck, the common law 
 had jurisdiction ; of flotsam, the admiralty. To constitute a legal 
 wreck, the goods must come to land (quicquid ad terrain venit). Flot¬ 
 sam is where they continue floating on the surface of the waves be¬ 
 tween high and low water. 1 Bl. Com. 292. 5 Bacon, title Prerogative. 
 Now if a boat or other thing be resting on the soil or beach, the pro¬ 
 perty of another; if it be not actually floating upon the surface, but 
 fixed or stable on the sands or the shore between high and low water, 
 like wreck; it would seem the jurisdiction of the shore or of the soil 
 would attach to it. This would fully cover the case of the canoe and 
 of the defendants under consideration ; though it would leave the case 
 of a boat wholly floating below or above low water, and only attached 
 by a cable or the like, to the effect of the arguments urged to shew it, 
 even then, constructively brought to the land or shore, and a part 
 of it. 
 
 But whether a boat so afloat and fastened be within the exclusive 
 jurisdiction or not, it seems to me that a citizen of Ohio standing upon 
 her soil above low water, or a boat resting on her shore above the same, 
 is within the jurisdiction of Ohio, and so the locus delicti without the 
 county of Wood ; and that consequently there should be judgment for 
 the prisoners. 
 
 In approving the decision in 5 Wheaton, and yielding the soil and 
 jurisdiction to low water to Ohio, with the consequences stated, and 
 attempting to reconcile it with the jurisdiction of Virginia over the 
 water that covers that soil, I may possibly have erred. They may be 
 inconsistent and not to be reconciled. I have thought otherwise ; and, 
 in this respect, have agreed with several of my brethren. I must ad¬ 
 mit, however, that I do not feel the same confidence in the latter 
 branch of this opinion as I do in the first. 1 yield to the authority, 
 justness and propriety of the decision in 5 Wheaton, and every necessary 
 consequence ; but have not supposed there was any necessary conflict 
 between that decision and the jurisdiction of Virginia as contended for. 
 
62 
 
 [Doc. No. 17.] 
 
 However, from the difficulty of the whole subject, and the diversity 
 of views, I own I feel great diffidence in all the opinions I have ad¬ 
 vanced. 
 
 Opinion of Duncan, J . Judge Duncan concurred with the majo¬ 
 rity as to so much of the judgment of the court as decided that judg¬ 
 ment of acquittal in favour of the prisoners ought to be pronounced 
 upon the verdict of the jury,—upon technical grounds, independent 
 of the question of jurisdiction. And he is not to be understood as 
 committed to the reasoning of the judges upon the question of juris¬ 
 diction. 
 
 Opinion of Scott, J . After the elaborate exposition of the sub¬ 
 ject under consideration which has been presented by the judges who 
 have preceded me, little more is left for me than to say that I dissent 
 from the judgment of the majority. 
 
 My opinion is that the grant from Virginia to the United States of 
 the territory northwest of the Ohio ex vi termini reserved that river to 
 Virginia. And I cannot divest myself of the notion that the geogra¬ 
 phical object which we call a river consists of flowing water, a bed for 
 it to pass over, and banks to confine it; and as the river, the whole of 
 it, belongs to Virginia, she owns every part of it, water, bed and banks 
 to the extreme northwestern verge. 
 
 It is conceded by those who differ from me in my conclusions, that 
 when Virginia made the cession, she owned the territory on both sides 
 of the Ohio, and that she reserved the river to herself. So that the 
 question is narrowed down to “What is a river?” And I repeat that 
 I can as readily conceive the idea of an animal without its essential 
 parts, as of a river without banks. It must have banks in the lowest 
 stage of the water. If this be so, then the question is reduced to a 
 still narrower compass; to wit, What is the limit to its banks? Is 
 that limit low water mark ? If so, then the Ohio river is out of its 
 banks for nine months in the year! 
 
 The length of a river may be assumed as a constant quantity. Its 
 depth and width (depending on the quantity of rain which falls with¬ 
 in the basin which it drains, and that being variable) are variable quan¬ 
 tities. Can it be said, without a solecism, that a variable quantity ne¬ 
 ver exceeds its minimum ? And if not, neither can it be said that the 
 depth and width of a river are confined to low water mark. 
 
 The common law writers tell us that those rivers in which the tide 
 ebbs and flows are called navigable rivers, and belong, both water and 
 soil, to the crown. This property of the crown has limits. What is 
 the limit to a navigable river on its margin? High water mark. The 
 space between that and low water mark is called the shore. The 
 shore belongs to the crown, because the river belongs to the crown, 
 and the shore is part of the river. So say I of the Ohio river. It be¬ 
 longs to Virginia; its marginal limit is high water; and that is the li¬ 
 mit to the domain of Virginia. 
 
 It is said that the river means the permanent river, and it loses the 
 character of permanence when we pass low water mark. If the term 
 river means only that which is within low water mark, by what name 
 
63 
 
 [Doc. No. 17.] 
 
 shall we call that flowing water beyond that mark, passing over a bed 
 and confined by banks, which we meet with for nine months in the 
 year ? 
 
 Rivers not navigable belong, both soil and water, to individuals. 
 The public have an easement in them, a right to navigate them with 
 boats: they are therefore called public highways. The jus publicum 
 is confined to the river. It does not extend to one foot of the land of 
 the riparian owner. This is well settled. What, I ask, are the limits 
 of this public highway ? Is the boatman a trespasser, who goes be¬ 
 yond low water mark? 
 
 Obstructions placed in such rivers are nuisances, and may be abated 
 and prosecuted as such. Can the riparian proprietor place obstructions 
 on the shores, so as to confine the navigation to the middle of the 
 stream in stages of high water ? And if the word river means the 
 permanent river, and it loses the character of permanence after passing 
 low water mark, and if the highway does not go beyond the river, 
 what is to prevent the riparian owner from making what use he pleases 
 of the shores which are no part of the river ? 
 
 As to the argument from inconvenience, I answer, cujus est dare 
 ejus est disponere. The country on both sides of the river, and the 
 river itself, belonged to Virginia. She made a voluntary donation of 
 the vast and rich domain on its northwestern side; a country capable 
 of sustaining a population more than five times as great as that which 
 she retained ; a population which might in the course of human events 
 become hostile to her: and she can hardly be accused of selfishness or 
 undue precaution, when, balancing the conveniences and inconvenien¬ 
 ces to herself and the donees, she preferred her own safety and her 
 own convenience to the convenience of those on whom she had so li¬ 
 berally bestowed her bounty. 
 
 A further, and, if well founded, a satisfactory answer to the argu¬ 
 ment from inconvenience is furnished by the able and learned counsel 
 who appeared for the state of Ohio. I give no opinion on that article 
 in the compact between Virginia and Kentucky, which it is argued 
 grants to the states possessing the opposite shores concurrent jurisdic¬ 
 tion over the whole river. It presents a very important question, and 
 one not without its difficulties. It is not involved in this case, and 
 therefore I give no opinion upon it. But if the learned counsel be 
 right in his definition of “jurisdiction;” if it is “the right of domi¬ 
 nion, of sovereign command over a place,—the right to make laws 
 for it and carry them into execution,” and if “ concurrent” means 
 “joint and equal, existing together and operating on the same objects,” 
 (see printed argument, p. 9,) there is an end to all complaint on the 
 score of inconvenience. If Ohio has “ sovereign command” over the 
 whole river; if she can “ make laws for it and enforce them,” what 
 more can she ask ? 
 
 The case of Handley’s lessee v. Anthony is relied on as an authority 
 against the views which I have endeavoured to present. It is with 
 unfeigned diffidence that I should venture to question any thing which 
 has fallen from the eminent judge who delivered the opinion of the 
 court in that case. No one has formed a higher estimate of his exalt¬ 
 ed qualites as a man, a patriot and a judge than I entertain. But 
 
64 
 
 [Doc. No. 17.] 
 
 when I am required in my official character to declare my opinion. I 1 
 cannot do otherwise than obey the dictates of my own judgment, nor 
 can I as a Virginia judge surrender what in my deliberate opinion are 
 the undoubted rights of Virginia, and give up her citizens to the penal 
 laws of another state for enforcing the laws of Virginia within her i 
 limits, in deference even to his high authority. 
 
 I feel no difficulty in concurring in the judgment given in the case ' 
 of Handley’s lessee v. Anthony. I should have no hesitation in de¬ 
 ciding that a narrow gut or bayou some twenty paces wide, in which 
 • the water of the river sometimes flows, separating from Indiana a large 
 body of land which has always been deemed and held to be a part of j 
 the ceded territory, is no part of the great river Ohio ; that the earth I 
 which confines the water in its occasional flow through this narrow 
 channel can in no sense be called a bank or banks of the river Ohio. 
 But, for the reasons already given, and others more fully expressed by 
 some of my brethren, I cannot agree that that great river is confined 
 within the narrow limits of low water. 
 
 It is to be remarked also that the learned judge who delivered the 
 opinion in that case shrunk from carrying out the position to‘which 
 I object to all its consequences. The court below had decided that 
 nothing can be called an island but that which is surrounded by the 
 waters of the river at all times ; a definition which results, as it seems 
 to me, from the position that the river is confined to low water mark. 
 
 The supreme court refused to sanction this definition, and the dif- ! 
 ficulty was gotten over by saying that it was made by the court below \ 
 with reference to the case before it: that is, as I understand it, as the 
 water of the river only occasionally passed through the little gut of 
 which I have spoken, the land which was thus only occasionally snr- 
 rounded by the waters of the river was properly held not to be an 
 island. It is further to be remarked that this and the argument from 
 inconvenience are quite as much relied on a^grounds for the decision, 
 as the definition of a river. 
 
 With my views of the case, I cannot unite with those of my 
 brethren who give to Virginia and Ohio division imperium over the 
 northwestern shore, giving dominion to Ohio when the water recedes, 
 and to Virginia when it advances. I can find no middle ground to 
 stand upon. The river belongs to Virginia. She has nothing more 
 than the river, and she has the whole river. If the shore is no part 
 of it, the shore is not hers ; if it is a part of the river, it is hers, and 
 not the property of another at any time or in any condition. 
 
 Virginia, to wit: 
 
 I, Nathaniel P. Howard, clerk of the general court of Virginia, 
 do certify that the foregoing are copies of the record sent to the said 
 court from the circuit superior court of Wood county in the ad¬ 
 journed case of the commonwealth against Peter M. Garner, Morde - 
 cai Thomas and Crayton J. Lorainc ; of the judgment of the gene¬ 
 ral court thereupon ; and of the opinions of the judges of the general 
 court in the case, so far as the same have yet been filed. 
 
 Given under my hand this 30th day of December in the 3 r ear 1S-46. 
 
 N. P. HOWARD. 
 
 

 
 
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