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SUBSTANCE

ARGUMENT OF SAMUEL F. VINTON,
POn THE DEPENDANTS,

IN THE CASE OF

iPiEi^E ©®sss5a®5SfW5i^a^iir ©jp wsm^sM^.^

YS.

PETER M. GARNER AND OTHERS,

FOR AN ALLEGED ABDUCTION OF CERTAIN SLAVES.

nxxirEBES

BEFORE THE GENERAL COCRT OF VIRGINIA,

DECEMBER TERM, 1845.

MARIETTA, OHIO:.
?aiNTED AT THE INTELLIGENCEE OmCK
1846.

SUBSTANCE OP AN ARGUMENT
op
SAMUEL F. VINTON,
FOR THE DEFENDANTS, IN THE CASE OF THB
COHKONWEALTH OF VIEGINIA vs. PETER M. GARNER AND OTHERS,
FOR AS AL-LEGED ABDTJCXION OF CERTAIN SLAVES.
Delivered he/ore the General Court pf Virginia, at its Deceniber Term, A. D. 1845.

Mr. ViNTos said:
May it please your Honors:
I cannot but regret that my
learned friend (the Hon. John M. Patton,)
who opened this case for the Commonwealth
of Virginia, has somewhat impaired the value
of so good an .argument, by the introduction
into it, both at its commencement and con
clusion, of a topic so very foreign to the sub
ject now under consideration. To all else in i
his argument, I listened with that pleasure
and delight, which high intellectual effort;
never fails to inspire. It will be understood,
that I refer to what was said 1^ him on the
subject of slavery, and of the correspondence :
now going on, and not yet brought to a close, '.
between the Executives of the cwo States, |
making mutual demands of certain persons
as fugitives from justice. These are matters
not before the Court, and their connection
with the case flow before as, is jiot very ap-i
parent. If the argument of my learned friend had
Been an address to a popular assembly, or
even Before a Jury of the country, I should
have been at no loss to understand the object
in bringing these topics into it. But when
they are addressed to this grave and dignified
tribunal of Judges, sitting here to decide a
naked question of law, I am unable to per- ;
ceive their relevancy, or in what way they
can aid the Court in coming to a right decis

ion of the case. Much has been said, and elo
quently, by the learned counsel in praise of
the institution of Slavery, and in derogation
of the abolitionists. I did not come here,
may it please your Honors, to engage in those
questions that are at issue between the slave
holders and the abolitionists — I am not now
called upon to assail the one or defend the
other — the case before us has nothing to d9
with either — and I cannot permit myself to \
be drawn aside, or seduced into a discussion
of this sort by any thing that has been, or can
be said, on that subject. I have the same
remark to make about the correspondence bfe-
tween the Executive of Virginia and of Ohio.
The Governor of Ohio has seen fit to send
me here to argue the case now before the
Court, and to protect, ns well as I may, those
rights of sovereignty and of soil that are
brought in question in it. But he has not 59-
licited my aid in his correspondence with
Virginia. If he be right, he needs no defence
from me. Ifhe be wrong, he best knows'
how to defend himself. And whether he be
right or wrong, I have no authority to speak
for him here before this tribunal, about a
matter which it is not called upon to decide,
and over which it has no jurisdiction or c^o-
trol. I shall also pass over ih the same way
all that was so eloquently said about the cofKi-
parative power and prowess of the people ^>f
Virginia and Ohio; I would fain trust in

God, the day may never come, when wej-or
our posterity, shall decide on the battle-field
whether Virginia be able to dictate lav/'to
Ohio, or Ohio to Virginia. All such specu
lation is worse than profitless, and can es.
tablish nothing. If the- signs of thatimes do
not greatly deceive US( the day is not far dis
tant when the people of both may be called
upon to stand side by side in the presence of
the common enemy of the country, — when
ample scope will he given to .each for the
exhibition of their valor and prowess on fitter
fields than those of civil strife. It this call
be mades the established valor of Virginia^
the deeds she has done, all her history as
sures us what she will do for her country. It
¦vvill then be' seen whether Ohio will dd her
duty also^ Firm as is my faith 'that ¦she will
hot be fotlrld wanting in the hour of trial, I
shall nevertheless promise nothing for her, — •
much less" will I, here in this plaoe, offend
'against good taste by vaunting any thing in
her' behalf.
i will now JDroceed to the argument of the
'case before the Court. /
' The indictment contains three charges, or
Counts, founded upon different sections of thfe
Criminal Code of Virginia — each section cre
ating a distinct offence. But the facts found
by thfe- jury in their' special verdict rendered
on the trial of the case, show that the proof
is appHcable I to '^ne of the -charges only. I
shall therefore confine rny remarkito italone_
That coiint alleges thalt'the defendants. Gar
ner, Thomas, and Loraine,' did feloniously
tarry and cause to be c'di-ried out of the Com-
inonw'ea-lth o'f Virgiriia into'the State of Ohio,
teix negro slaves, without the consent of Johh
H. Harwood," their owfier, with intent to de
fraud him of the use',' enjoyment, property and
possession of said slaves, contrary to the
Statute of Virginia iti such case made and
provided; The verdict,i'n the first place, finds
the existence of certain laws relatifig to-the.
title id, and'jurisdiction over the pUce where
the act in q'uestiori was done — which will be
noticedin 'the course of my 'ki^gumdnt The

verdict, in the next place, finds that the De- -
fendants were at the time when this act was
committed, citizens of Ohio, residing in that -
State, about four miles back from the Ohio
river. That on the night when the act was
;-comraitted, the .Defendants, with some other
persons, came from their residence to the
river on the Ohio side, and going down under
the bank, remained there for some time, when
six negro slaves, the property of said Har
wood, came across the river from.-the Virginia
side, in a canoe, and landed it obliquely
against the Ohio shore, running the bow up
on' the beach. That the Defendants, and
those in company with them, went down to
the canoe as it struck the shore, and without
entering it, stepped into the water at the btfw,
and assisted in tairing from it some bags and
articles of clothing which lay in that part of
the canoe. That thfe Defendants, and their
companions, taking up these articles, were
pfooeedihg up the bank of the river, in com
pany with' the slaves, when certain persons
Who lay in ambush, on the top of the" bank on
the Ohio side, rushed down upon them, and
seizing the Defendants, carried them forcibly
across the Ohio into Virginia, where they
were held in custody, indicted and tried for
the offence above specified.
The verdict further finds,' that the' slaves on
that night -lefttheir master in Virginia, with
out his knowledge or consent. The jury also .
found that when the Ohio river is" at that
stage which the boatmen on it call low water,
the depth of water on the bars, in the chan
nel, is from 17 to 20 inches. That at ex
treme low water, or where the water has
once been known to be, the depth on the
bars iri th'e channel was eleven inches only.
That on the night of the 9fh of July^ 1845,
when this transaction took'plice, the water
on the bars iri the channel 'was 39 inches
deep. Thafth'e average depth of water in
the channeJi'on said bars, for the whole year,
is six feet, or thereabouts. — That taking the
whole year round,' orie year with anothfer, the
water for nine months, or thereabouts, wouldi

be higher than it was on said night of the
9th of July, and for three months, or there
abouts, lower than it then was. — That below
the banks, the shores and bottom of the river
are for the most part a gradually inclined
plane, converging towards the' channel, and
that at the place where said canoe was land
ed, the edge of the water at extreme low wa
ter is some 50 or 60 feet in a right line meas
uring on the beach, below where it- was at
that place on said night of the 9th of July. —
Prom these facts, the question presents itself.
Did these Defendants, in. a id of the escape of
these Slaves, pass over the territorial limits
of Ohio, and enter within the limits and ju
risdiction of the State of Virginia!
If they did not, then it is admitted by, the
learned Counsel who opened the case, that
they are not amenable to the laws of Vir
ginia.^ Whether they did so pass out of the
limits and jurisdiction of Ohio, is the sole
question that I intend to discuss.
This presents a simple question of boun^
dary between the two States, and must be
settled in the same way, and by the same law.
and principles that would govern-it, if the
present were an indictment against the De:
fendants for stealing a bale of merchandise
at the place where these acts were done by
them. And I cannot but.regret exceedingly
that this question, so important to the State
of Ohio, should have, arisen out. of a transac
tion having any connexion with slaves or
slavery, since this adventitious circumstance
creates a prejudice against the case, and gives
it an outward appearance of being something
different from what it in reality is, and.which
the mmd.haaa natural tendency to associate
with the question that does in fact arise. . I
am sui-e. I should do great injustice -to. this
Honorable Court, if I were to imagine it pos
sible its judgnient could be, in the. least de
gree, influenced by the outward and acciden
tal form in which this, question is presented.
Before, however, proceeding to, the argument
ofthe question of boundary, I beg leave to
suggest, that another important question

might be made in advance of it, which I pro,. -
pose to state, but not to argue. It is, whether
where the crime consists (as is alleged in thia
Count of the indictment,) in carrying slaves.
out of one. State into < another, the Courts of
either, State.have jurisdiction of the offencef
Or whether the trial, and punishment of it,
does.nat exclusively belong to the jurisdictioa
of .the Federal Courts'! The principles laid
down and settled by the. Supreme Court of
the .United States in the.caseof Prigg w, the
Commonwealth of Pennsylvania (16 Pet. 539)
raise,.to say the. least of it, a serious doubt
whether the sole power to prescribe, the pun
ishment fop such a case, 'is not vested in the
Congress of the, United States, and whether,
as the law now stands, an indictment can be
found,. or. punishment , inflicted, except it be.
provided for by the act of Congress of the
12th of February, 1793, .entitled "An Act re
specting Fugitives from Justice, and persons
escaping from the service of their Masters."
(See 2 Vol. L. U. S. 331.)
Passing, pver this, enquiry, the question re
turns, was this act done within the limits or
jurisdiction of Virginia) I shall maintain it
was not, and shall place the negative of this
proposition on several grounds. ¦
The first ground upon which I shall main
tain the negative of-this proposition is, that the
Supreme Court of the U. States has so decided
it. I shall give that decision a distinct consid
eration by itself,'; and shall then present the
case on its own principles, independently of
that decision. . The claim now set up for Vir
ginia is, that her territory and jurisdiction ex
tend to the top of the bank on theOhio side of
the river. If that ground be maintainable,
then I admit the decision must be in favor of
i the jurisdiction ofthe Court over these Defen-,
diuits ; but it is equally obvious that, if such be
i the fact, then the, case laid ifl the indictment
and specified in the Statute of Virginia, has
not been made out— thftis to say, the ^aveis,
i'f it be so, were not . carried out of Virginia
into Ohio; which is the substantial fact al
ledged in this count and in the Statute qn

-which it is founded. But if fhe top bf the
bank be not the boundary, then the argument
in behalf of Virginia iconcedes that she has
no jurisdiction over the.case, since it is stren
uously insisted by her ilearned Counsel, that
the boundary line must be either at the top
of the bank on one of the shores of the river,
or in the middle of the channel, and that the
law of nations knows no other boundary be
tween States divided by a river, than one of
these. And proceeding on this assumption,
he has labored with great zeal and ability in
his endeavors to overthrow the authority of
theiCase to which I have already alluded, and
shall shortly direct the attention of the Court;
in which it was decided by the Supreme Court
of the United States, that the line of the low
¦water mark on the Northwest, or Ohio side
ef the river, is the boundary. As I do not in
tend, nor deem it material, to discuss the
proposition laid down by the learned counsel,
as the starting pcant of his argument, that
the boundary must be fixed at the top of
the bank iOr iu the middle of the stream
of the Ohio; I will content myself with a
Single comment on that topic; which is,
that his position overlooks the well estab
lished distinction, which he will find laid
¦down in numerous adjudicated cases, between
those rivers where the tide ebbs and flows,
and are subject to maritime jurisdiction, and
those rivers that are above tide water, and
beyond the maritime jurisdiction, as is the
case with the river Ohio. His error consists
in applying the law of tide water rivers to all
rivers indiscriminately. For this distinctioa
see 3 Sumner's Rep. 178. 2 Deveraux Rep.
30. II Ohio Rep, 142. 17 Wendell 571.
3 Kent's Com. 427. 14 Serg. & Rawle 74.
6 Mass. 435. 8 Greenleaf 90.
I shall now return to the position that I
pircpose first to establish, viz : that the Su
preme Court of the United States has already
decided that the territory of Virginia does not
extend to the localities where the acts com
plained of were done— that the low water
mark, on the Ohio side, is the boundary. Ac

cording to that .decision, this Court has not
Jurisdiction of (the case, for it is not claimed
or pretended that these Defendants ¦ went to
or beyond the low water line. The case to
which I irefer is Handley's Lessee vs. An
thony, reported by Wheaton 5 vol. 374. It
appears from the statement of the facts on
which that case was decided, that at a place
on the upper side of the Ohio River, in the
State of Indiana, a considerable body of land
is enclosed by the river, in the form of a pen
insula;— that on the upper side, or neck of
the peninsula, a channel or bayou puts ont of
the Ohio, and running across the neck, dis
charges itself into the river on the other side
of the 'peninsula : — That at low water of the
Ohio, or when the river is less than ten fee^
above low water, the channel is dry, and the
peninsula forms a part of the main land ; but
when the river is more than ten feet above
low water (which is the case for a considera
ble portion of the year,) the peninsula be
comes an island, wholly surrounded by the
water of the river; — that at tiiat point the
river rises above low water from forty to fifty
feet. The United States being the proprietor
of the land on the upper, or Indiana side of
the river,as far as the liraits of that State ex
tend, surveyed this peninsula, sold it out, and
issued a patent for it to the purchaser. The
State of Kentucky, which owned the country
on the lower and opposite side of the river, as
far as her limits extend, gi-anted a land war
rant to one of her citizens, who laid it down
on this peninsula, and obtained a patent from
that State for the same land covered bythe
patent froia the United States. The Ken.
tucky patentee then brought an action of
ejectment in the Circuit Court of the United
States, held in the State of Kentucky, against
the claimant under the patent from the United
States, who was in possession of the land.
Both Governments had granted patents fur
the same land. The title, it is plain, could
not exist in bolh at the same time, nor could
the land be within 'the limits of both States
— consequently one of these patents was of

necessity invalid. The patent was void which
. had emanated from that Government beyond
whose limits the land was situated. In this
state of facts, the Plaintiff's case necessarily
rested on the sole question, whether the land
in controversy was within or without the lim
its of Kentucky. If the boundary of Ken
tucky (which at the time of the cession by
¦Virginia of the country beyond the Ohio to
the United States, was a part of Virginia,
and has therefore now the same river boun.
dary as Virginia,) extends, as is now claimed,
to high water mark, or the top of the bank on
the upper side of the Ohio, then it is plain the
land in controversy in that case, was within
the limits of Kentucky, and the Kentucky
patentee would be entitled to recover the
land. The Court, therefore, in deciding a-
gainst the validity of the Kentucky patent, of
necessity repudiated the top of the bank, or
high water mark, as the boundary. It is,
perhaps,, worthy of remark, that the case was
tried in the Circuit Court, by Kentucky law
yers, and before a Court composed of Judges
who were citizens of Kentucky, one of whom
was a Judge of the Supreme Court of the
United States. It was tried by men who had
an interest, and no doubt felt a disposition, to
maintain the limits of Kentucky to their le
gal, fair and full extent. ,When the case was
brought up to the Supreme Court of the United
States, it was argued there for the Plaintiff,
hy counsel from Kentucky of the highest em
inence in that State, and for the Defendant
by a member of the Virginia bar, then being
the Attorney General of the United States.
And the final decision of the Court was pro
nounced by Chi,ef Justice Marshall, who was
himself a citizen of Virginia. The boundary
now contended for, as I have already said,
would, if maintainable, have rendered the
Plaintiff's recovery in that case, certain and
irresistible. This conld not have escaped the
Court or bar, especially a Court and bar so
composed; yet no such claim, as a boundary
at the top of the bank, or at high water mark,
was set up, or even alluded to by the Court

or CounseF. Is not the inference irresistible,
that iPwas regarded hy all, as too'absurd to
be seriously advanced? On the ti-iiil of that
cSse^ in the Circuit CoUrt, it was'insisted by
the Plaintiff's Counsel, that the "medium stage
of the river, between high and low water on
the upper side of the Ohio, was the boundary ;
and the Court was called upon so to instruct
the Jury. The Court refused to give it, and
instead thereof, instructed them that the low
water line, on that side of the river, was the
boundary between Kentucky and Indiana.
This charge was excepted to by the Plain
tiff's Counsel, and it came under the direct
revision of the Supreme Court of the United
States, on writ of error. The instruction
given to the Jury was affirmed by that Court,
in all its points. Now this high and direct
authority must be broken down before a de
cision can be rendered in this case against
these Defendants. This is admitted by the
learned Counsel, and hen.ce his effort to over
throw it. I admit that this decision, how
high so ever the respect to which it is enti
tled, is not legally and strictly binding and
conclusive upon the States on either side of
the Ohio. They were not parties to it, and
had no opportunity afforded themi to exhibit -
their titles, and maintain their- rights and
claims before the Court. And tiiis is more
emphatically true of the States on the North i
West side of the river, which had no part or
lot in the management or preparation ot the
case. The rights of the States came under
the examination of the Court incidentally in
a controversy between others, and cannot
therefore be conclusive in a direct issue made
up between them, if they shall hereafter see
fit to settle their boundaries by an appeal to
the Supreme Court ol the United States, in
the mode prescribed by the Constitution. —
And I shall hereafter show, that certain facts-
were assumed as true, without any apparent
investigation, both bythe Court and bar, up
on which the Court predicated, the opiojoo-
: that the low water mark, on the upper side
ofthe river, is the boundary. Whereas if"

the title to the country beyond the Ohio, and
its true history, had been put into the record
in that case, so as to bring it within the reach
of the Court, arid call for a decision upon it,
the judgment of the Court must have been,
that the middle of the channel is the bounda
ry. All the parties to that case, both the
Court and bar assumed, withbuT. any histori
cal investigation in 'the " Court below, 'that
Virginia was the original proprietor, of the
country beyond the Ohio River; and that the
question of bouridary was to be decided by
the laws of Virginia, and by her deed of cession
to the United States. The case came up to
the Supreme Court ofthe United States made
up on this hypothesis, and in that Court its
decision was predicated upon the record, as
it was presented to it. ' Proceeding on this
assumption, it was by a powerful analysis of
those laws and of'the deed of cession, for
¦which Chief Justice Marshall was so einin-
ently distinguished, that he came to the con
clusion, that the low water line of the river
was the bouridary. 'In this "Way, 'the case
was presented in the best possible' aspect for
a decision the most favorable to fhe claims
of Virginia. The erroneous assumption o'n
which the precise decision turned, therefore;
by no means weakens, but in fact strength-
eris the weight of the authority of that case
as against the States of Virgiriia and Ken
tucky. Having assumed that Virginia had
the original title to the country beyond the
Ohio'prior to the deed of cession, the learned
Judge proceeds to lay down the foundation
principle on which the decision rested, in the-|
following words, viz : "When a great river is
"the boundary between twoiiationa orSt^tes,
"ifnhe original iJroperty is m 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 on^
"side only, it retains the river within its own
"domain, and the neWly created State ex-
" te-nds to the river only. The river, however,
•Hs the boundary." 6 Wheat. 379.

The principle here stated shows clearly
that the decision rested wholly on the as
sumption that Virginia was the original pro
prietor of the ceded Country, and that if it
was erroneous, as I shall endeavor to prove it
was, then the middle ofthe river is the boun
dary. The learned Counsel for Virginia
maintains thatthe bank ofthe river, as contra
distinguished' from the water edge at low wa
ter is the "boundary. This 'distinction be
tween the bafik or 'shore arid' the water which
composes the river at that stage which the
Court denominates the' "permanent river" did
not escape "the attention of the Supreme
Court in' the case on which I am now com
menting. Judge Marshall bestowed especial
care upon it. He begius by citing the lan-
i^guage of the deed of cessiori. He says, "she
" (Virgiriia) conveys all her right to the terri-
" ry situate lying and being to the North
" West Ofthe river Ohio." And this territory
" according to express stipulation is' to be
¦"laid off into independent States.' These
" States then are to have the river itself, where-^
" ever that may be for their boundary. This'
"is a natural-boundary and in establishing it
Virginia must have had in view the con-
" veriience of the future population of the
" Country;" 5 Wheaton 379. And further on
atpage 380 he says, "Wherever the river
"is a boundary between States, it is the main,
" the permanent river, which constitutes that
boundary; and the mind will find itself em
barrassed with insurmountable difficulties
" in attempting to draw any other line than
• the low water mark." In the last sentence
of the opinion, he makes a direct and express
distinction between a river and its shore and
says the States beyond the Ohio were to own
the shore of the river. He says "the shores
of a river border on the water's edge." 6.
Wheat. 385. In other words, the one is land
and the other water. If therefore you have
a boundary by the river it is a water line oi
division^-ff by the shore, it is a land boundart/
as contradistinguished from a water line, and
in that case, the top of the bank woald, {»¦•-

bably, be the boundary line. In the passages 1 was executed ; and whi6h eventually, in tbe
cited and throughout the opinion of the Court, fullness and maturity of their development,
the distinction is kept up between the river will contain a greater number of people than
and its bank— between a water line of boun- the whole'Union at this day. Every thing,
dary and a line on dry land. It maintains there, is yet in its infancy. But already
that" the deed of cession granted the Country towns and cities have every where sprung up
"to the North West of the River Ohio."— 'on the river shore, and on all the lines ,of in-
That is to say to the North West of the per- terior communication with it. That river is
maneniiuaie?- ofthe river, and not to the North already the channel and thoroughfare of a
West of the river bank, as is now contended stirprisingly active internal commerce. Ori
for.- And as a deduction from this doctrine, its shore, on the identical ground that is now
he goes on to lay it down, that this low water in dispute, must be annually laid down, the
mark is a fixed line of boundary. He uses accumulated surplus product of the active in-
these words, "the same tract of larid cannot dustry of millions of people, as the point from
"be sometimes in Kentucky and sometimes in which to take its departure for the markets of
"Indiana, accordingto the rise and fall ofthe the world. But this is not all; the great and
"river. It must be always in the one State,! important bnsiness of transhipment, with the
"or the, other." 5 Wheat. '382. ten thousand contracts incident to it, must
Butthat eminent Judge did not content hira- forever be done on this very disputed shore.
self "with resting on the strict meaning and Upon it also must be landed, for distribution
effect of the words of the deed. He goes in the interior, all those return supplies of
further, and places his interpretation of it on merchandise and commodities which minister
broad and enlightened views of public policy, to the wants and comforts of this great pop-
He remarks that Virginia provided for the ulation. Look, for example, at the City bf
erection of independerit States in the ceded Cincinnati, and picture in the imagination.
Territory, and that in fixing their boundary, what may be seen there any day in the year —
she "must have had in view the convenience iher lovely port crowded with steamers, and,
"of the future population of the country." | almost innumerable other water craft, with.
And on this topic he also adds, " in great | their rich and varied cargoes — her wharves
"question^ which concern the boundaries of (crowded with busy, bustling people, and with.
" States, where great natural boundaries are i every variety of merchandise — where con-
" established in general terms, with a view (tracts are making, and property changing"
"to public convenience and the avoidance of j hands, almost every minute of the day — all
" controversy, we think the great object, where on this disputed ground ; and is it not a mat—
" it can be distinctly perceived, ought not to ter of vital moment, that it should be knowa
" be defeated by those technical perplexities with certainty by what law these people are^

" which may sometimes influence contracts
" between individuals."
With the permission of your Honors, I will
now make a practical application of the lib

eral and enlightened views of the Court. In local police, and a code of police laws ta

the short interval of time that has elapsed

to be governed, and their contracts regulated,
while there in the transaction of their daily
business 1 Can any one fail to perceive the
absolute necessity of a strong and effective.

control and keep in subjection the loose

¦ince the date of the deed of cession, three and disorderly masses of men thus congre-
jfreat States haVe risen up on the North gated together from the most distairt parts of.
Western shore of the river, whose aggregate the country? Can it promote the conve-
population, even now, exceeds that of the nience of the people of Ohio, or of those wko
whole confederacy when the deed of cession come there to do l>Uiin»»i, that th« wbarvear

8

and Shores of the riyer, and the water-craft
lying there, shall be governed by such police
laws as Kentucky might choose to make?
That the contracts made at the Ohio shore,,
and on the boats attached to it, shall be gov
erned by the laws of Keritucky or Virgiriia, of
which they know nothing, and were not even
thought of when they entered into thera?
That the citizens of Ohio, while thus enga
ged, should be there arrested and carried into
imprisonment by the officers of the opposite
States, their contracts subjected to, and
their persons punished by laws made by men
in whose election they have had no voice, and
over whom they can exercise no control or
influence? Or would not these things, in any
conimuriity whatever, be justly regarded as
an intolerable grievance? Go into the City
of Cincinnati, or into any town on the Ohio,
and ask its business inhabitants, what part of
all their publie streets, or places of resort,
they could least afford to give up to the con
trol of the State on the opposite bank, and
they would tell, with one united voice, that
the wharf on the river, and the shore of the
river, were the last that they could surren
der. And of what use, let me enquire, would
this power be to you, if you had it; bnt to
keep up and nourish an everlasting enmity
between you and us, and administer food to a
never-dying feud? Does it comport with that
regard for "the convenience of the future
population" which the venerable Chief Justice
says Virginia must have had in view in pro
viding for the erection of New States on the
Ohio? Is it consistent with this statesman
like and benevolent intention of Virginia,
that if the people of the new States have oc
casion to erect a wharf at the water edge —
to carry a rail way to the river — to lay down
a suction pump to draw up supplies of water
for their steam machinery, or for the daily!
wants of the inhabitants of their towns— in
a. word, to approach the water and use it for
a thousand new and nameless purposes, which
the fapt multiplying pursuits and wants of
society, io. the progress ^f that civilization

they fondly hope to attain, will render indis
pensable to their comfort and prosperity, that
you should have the power, at your will, tp
stop them all? Like all linfit, and misplaced
P9wer, it would be a curse both to you and
to us, if you had it. It is true, that if you
could make a final decision of this question
in your favor, and should do it, you would,.
for the moment, quicken into life, a wild spirit
of speculation. For who can doubt but that
so soon, and as fast as steam would carry
them to its shores, multitudes of adventurers
would rush there to lay down your land war
rants upon the river shore between high and
low water mark on the whole line of the bor
der States! I solemnly declare as a citizen
of Ohio, that if you were to offer us this pow
er over the Virginia shore, I would not take
it as a gift. — I would not accept a power that
would bring with it perpetual annoyance, col
lision, and never-ending controversies be
tween those who are neighbors and whose
interest it is, and ever must be, to be friends.
Before passing from this topic to the next
head that I propose to discuss, permit me, to
enquire, whether, in case you hold that Vir
ginia has a right to make arrests on the Ohio
shore — that her laws both civil and criminal
extend there, you will not thereby involve
your own people, on your own side of the
river in a like responsibiliiy to the laws and
jurisdiction of the State of Ohio? In a word,
whether a regard to your own policy and con
venience would not admonish you to abstain
from such a decision? I shall endeavor to
show that place the actual boundary where
you may, — at the top of the bank — at the
medium stage of the water — at low water
mark--or in the middle of the channel, — and
Ohio has a right to do on the Virginia shore,
whatever Virginia has a Tight to do on the
Ohio side. When Virginia passed her act of
Assembly in December 1789, to enable the
people of Kentupky to form a Constitution
and become a State, she proposed to Ken
tucky certain conditions for her assent, which
W|ere to be binding on both parties. One of

those conditions related to the Ohio river, and
proposed that its use and navigation along its
course in passing Virginia arid Kentucky,
should be free and common to the citizens of
the United States, and that the respctive ju
risdictions of those States shonld be concur
rent with the States possessing the opposite shores
of the river? This condition was assented to
by the converition that formed the constitution
of Kentucky, and the admission of Keritucky
into the Union was an act of assent thereto
by Congress. And thus validity and effect
according to the form prescribed by the Con
stitution of the United States was given to
this compact between the two States, and is
binding and obligatory on both. That con
dition or compact is in these words viz: "The
" use and navigation of the river Ohio, so far
" as the territory of the proposed State (Ken-
" tucky) or the territory which shall remain
" within the limits of this commonwealth
"(Virginia) lies thereon, shall be free and
" common to the citizens ofthe United Stajtes.
" and the respective jurisdictions of this com-
" monwealth and of the proposed State on
"the river as aforesaid shall be concurrent
" only with the States that may possess the op-
"posite shores of the said river." (See Hen-
ning's Virginia Statutes 13 Vol. page 19 Sec,
II.) By every known rule for the interpreta
tion of Statutes, the word "river Ohio" found
in this compact means the same identical riv
er neither more nor less than is meant by
"Ohio River" in the act of cession passed by
Virginia six years before. And here permit
me, to enquire, what is jurisdiction? It is
the right of dominion — of sovereign command
over any place — the right to make laws for it
and carry them into execution; and all these
rights where there is no convention respec
ting them are exclusive of the rights ot all
others. See VatteJ Book 2, Chap. 7, Sec.
83-84. The lexicogiaphers define the word concur
rent to mean, "joint and equal, existing to
gether a^id operating on the same objects." —
It follows tljen as m iTregistt^bJe copcl^sion

from a grant o{ concurrent iurisdiction that if
the river with the Virginia- jurisdiction ex
tends on the Ohio side to the tiop ofthe bank,
it extends with the Ohio jurisdictioni to the
corresponding place' on the 'Virginia shore-
that if Virginia can make laws for the river
beach on the Ohio side between high and
low water mark— can serve pi-ocess there-
can seize persons standing there and try
them in her Courts for acts ,done there, so
can Ohio do the skme things on the Virginia
shore. Need, I ask, whether the citizens of
the City of Wheeling— of the Town of Par
kersburg, or the people of Virginia -who
dwell on the banks of tliat river, would be
satisfied or ought to be, with a construction
of this compact between Virginia and Ken
tucky, that will bring the laws of Ohio to
operate on their persons, conduct and con
tracts, while engaged about their daily and
ordinary business at their Steam Boats, wharf
boats, and other craft lying at their shore;
and not only that, but when they are on dry
land between high and low water mark on
their own side of the river? Nor need I say,
that it could not have been understood by
those who made this compact that the limits
ofthe river were as broad as is now conten
ded, or that compact would never have been
proposed without qualification or restriction
upon the jurisdiction of the opposite states.
It has not been claimed in the argument
for Virginia, nor can it be successfully, that
Virginia by virtue of this grant of concurrent
jiirisdiotion, acquired any rights beyond her
territorial boundary wherever that may
be. It must he remembered that 'Virginia
and Kentucky were the grantors of this juris.
diction— the States on the apposite side are
the Grantees-^the latter have granted nothr
ing-r— they must themselves become grantors
before Virginia and Kentucky can come over
the line of their boundary, \ykerever that may
be, which was created hy the deed of cessiiom.
And thus we are brought back again to. the?
question already discussed, and already set
tled in the case of Ha^idley's lessee vs, An-

10

^iaiotiy, viz: where is the boundary by virtue of 5 Sec. 226; Wheaton's Mw of "Nations 1 Vol.
that cession? j2]9. 220.
Ihave closed the discussion of that ques- ' I have already' shown' that upon the facts

tion, and shall riow proceed to a secorid arid
much broader enquiry. ' That Virginia during

the war ofthe Revolution, set up a claim to in the course of my historicar examination,

the country beyond the Ohio river is unques
tionable. But I shall insist and endeavor to~
prove that she never had a valid title to it — ';
thather title not only to it, but to both sides

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

that if the true facts iri respect to the original
title to the country beyohd' the Ohio had been
before the Court, and made a part of the re
cord iri that case, the decision 'then must and

ofthe Ohio was disputed by' the confederacy would have been, thatthe middle ofthe Ohio
and by other States — that they claimed all" is the boundary. The Supreme Court of the
that she asserted a right to — that in the end i State of Ohio has two or three times ac-
she adjusted her claim by compromise as oth- j knowledged the authority bf that case and
er sovereignties are in the habit of settlirig held in Conformity' to it that the low water
their disputes — thatit was thus settled and mark on the Ohio side is the boundary. (See
she relinquished her claim beyond the Ohio, 2 Ohio Rep. 310; 11 Ohio 'Rep. 142; Nov.
with the express understanding, that the ac- No. 1843, of Western Law' Jourual, page 54.)
¦ceptance of her act of cession was not to be 'Butthat Court must be presumed riot to
taken as an admission by the confederacy, have known, that Handley's' Lessee Us. An-
(who was the Grantee) 'that Virginia had a thony was decided upon an erroneous assump-
titleto the country ceded' by her— that the tion of facts. "I shall now endeavor to es-
separate and acknowledged right of "Virginia t'ablish the position, that the middle of the
to the country on the' lower and of the con- stream is, in fact, the true legal boundary 'be-
federacy to that on the upper" bank of the tween Ohio and Virgiriia. ' I may as well re-
Ohio begun with this compromise*— and con- mark here that where a river or an arm ofthe
sequently, that the rights of the States on the sea divides two coterminous countries, the
¦opposite shores are co-eval with each other; ,]aw of nations does not favor the exclusive
and that this compromise controls and deter- claims of either, (such as is set up here by
mines the extent and legal effect ofthe dead Virginia) to the whole rivers.
of cession by Virginia. 'Mr. Wheaton in his treatise on the law of
If I can succeed in establishing these facts, Nations i "Vol. 219-220 lays down the rule,
. which in a great measure depend upon his. that where a navigable river forms the boun-
tory— then I shall have shown, that in the dary of two States, the middle of the channel
oase of Handley's lessee vs. Anthony, the jg generally taken as the line of separation
Court and the parSies fell into an error of between them— that a claim of exclusive
fact in assuming that Virginia had the ori- property over rivers or portions of the sea
ginal title, to the Country beyond the Ohio, contiguous to a country is not to be viewed
and shall have brought this case plainly with- with much indulgence— that the general pre-
in the principle of the law of nations already sumption that each owus to the middle hears
adverted to, and recognized by the Court in strongly agairist such exclusive rights— that
that case viz:'f hat "wheri a great river is the they are to be strictly coristrued and clearly
boundary between two nations or States, if made out. From this doctrine it would fol-
'the original property is in neither, and there low that if I even prove it to be doubtful,
ba no convention respecting it, each holds to whether Virginia had, in fact, a title to th«
the middle of the stream," 5 Wheat, 379. country beyond the Ohio, then the middle of
Vattel's kw of Nations. Book 1. Chap, 22, the ohajinel is tbe boundary. The learnei

11

¦'Counsel for Virginia founds the 'title" bf that J cofflpariy,'wTiich was " anciently called, "the
State to the Territory beyond the Ohio upon London Company," with his license to pur-
the charter of King James the first, in the chase arid hold "any manner of lands, tene-
year A. D. 1609, now commonly called, "the "ments, and hereditaments, goods and chat-
Virgiriia charterJ" This is the sarae title "tels within our realm of England, and do-
upon which she vested her claim to it, at the " minion of Wales." He in the next place
period of the American Revolution, and when grants to the corporation, their successors and
She compromised her dispute with the Con- assigns, "all those lands, countries and ter-

federacy. This appears from her act ot ces
sion of the 20th of October 1783, passed toi
authorise her Delegates in Congress to con-

" ritories, situate, lying and being in that part
of America called Virginia, from the point
¦' of land, called Cape or Point Comfort all

vey the Country to the United States, and in " along the sea-coast to the Northward

the deed of cession made in conformity to <
the acton the 1st of March 1784. The lan
guage of the act of Assembly and of the deed!
of cession being, that they "convey, transfer,
" assign, and make over to the United States
" in Congress assembled for the benefit of
" said States all right, title, and claim as well
" of soil as jurisdiction, which the said Com-
" monwealth hath to the Territory within the \

' 200 miles, and from the said point of Cape
'Comfort all along the sea coast to the South-
' ward 200 miles, and all that space and cir-
' cuit of land lying from the sea-coast of, the
' precinct aforesaid up into the land, through-
'out from sea to sea 'West and North-West;
'¦' and also all the islands lying within one
¦' hundred miles, along the coast of both seas
" of the precinct aforesaid" — to hold the sarae

" limits ofthe Virginia Charter situate, lying in free arid corarabn socage. See Henning'g
" and being to the North West of the River Virginia stat. 1 Vol. 88—89—1 Vol. Hazard's
« Ohio." (1. Vol. L. U. S. 474.) Coll. 64-65.
I shall now proceed to enquire whether the The first thing that strikes us in reference
Virginia charter did, in fact, furnish a found- to the question we are now raaking is that,
ation upon which that State could sustain a that the /ee to the country is vested in the
title to the country beyond the Ohio or to Corporation, their successors and assigns —
any portion of the Territory West of the Al- 1 and not in the colony or people of Virginia.
legheny mountains. To obtain a right un- By the words "from sea to sea," the Atlantic
derstanding of the legal effect of this charter, and Pacific are supposed to be meant. The
it is necessary to know what it, in fact, was grant begins by drawing a base line of 400
—to whora and under what circurastauces it miles iri lerigth along the Atlantic coast, of
was granted. This Virginia charter, was not, which Point Comfort is the centre, the Nor
as the name now given to it, arid that by thern extreme of which would be at or near
which it is called in the act of cession would Cape May in New Jersey, and the Southern
seem to imply, a charter to Virginia, or to termination at or near Cape Fear iri N. Car-
the colony of Virginia, or to the people of olina. From one of these terminations a line
Virginia; but it was a charter by James in was to be drawn West, and from the other
1609, to a company of gentlemen residing North West, back into the land "from sea to
principally in and about the city of London, sea;" but from which extremity the West
and who by that charter were organized into and from which the North West line is to be
a corporation under the name and style of run, the grant does not specify. If the West
"The Treasurer and Company of adventur- line be drawn from the Northern termination
ers and Planters of the City of London for of the coast line, and the North West from
tk» first Colony of Virginia." By this char- its , Southern termination at Cape Fear, it
t»r, the King in the fimt plaee authorised this would leave the State of Ohio West of ani

12

beyond the grant; but as tjiese two lines
would come together before reaching the sea^
the Virginia construction, and for that reason,
I suppose the correct one, always has beeni
that the West line must be drawn' from the
Southern termination, on the coast, and the
North West line from the other extremity
of the coast line. If the lines be drawn int
tliis way, the West line would strike tbe Pa
cific in the Gulf of California some eight de
grees of latitude south of the present bound
ary line between the United States and Mex--
ico. The other or North West line,- would
cross into Canada some where between.
Lakes Erie and Ontario, and strike the' Paci
fic in the Arctic Circle som-e- where North of
Behring's Straits, embracing; a portion ofthe
Continent that would make not less than for
ty-five or fifty States of equal extent of ter
ritory with the present State of Virgiriia.
The very magnitude of the' grant is calcu
lated to astound us-. That a^ territory of such
immense extent should have been given away
by the Crowff to a company of adventurers,
who proposed' to plant a sraaH> colony there,
seems to be sil but iKcredible^aBd irresistibly
leads the mind to suspect that the grantor la
bored under some great misaipprehension or
mistake. To determine what effect; the law
of nations would give to this grant, it will
be necessary in the first place, to turn our
attention back 80 the state of things that then
existed. And here I may as well remark
what I intended to have said before, that I
fully agree with the learned Counsel for Vir
ginia, that irs searching for the interpretation
and legal effect of this charter — of the Deed
of Cession by Virginia to the United States —
of tbe arrangement or compact between Vir
ginia and Kentucky grauting concurrent ju
risdiction on the Ohio to the opposite States —
we are to look wholly to the law of nations
— whose principles are broader and larger
than those of the common law, or any other
raere municipal code. At that time, the North
West Coast of America was wholly unknown
— the interior of the continent had never been

penetrated- from either" ocean; and except
the line of coast along its Atlantic border,
the vast region of country embraced within
the limits of thisgrant„was'a sealed book to
the worldjOf whose'contents all civilized men
were profou-ndly ignorant. At that day, the
idea of finding a- passage between the Atlantic
and Pacific, through' or around the Northern;
part of the American Continent, agitated the
minds of men, and deeply engaged the atten
tion of Kings. Enough had been discovered
by navigators toexcite their hopes, and great
ly to deceive them as to the real extent and
character of this part of the continent, Sir-
Francis Drake, not long before, from the top^
of a mountain in the Isthmus of Darien, had
seen both Oceans. This naturally led to the
inference that the continent was a long and.
narrow strip of country, Sorae two or three
years before the date of this charter, a small
English Colony had settled down near Point
Comfort, under the auspices of this London;
Company, who in 1606 had obtained a charter
for a narrow strip' of country on the coast,
which, on account of that settlement, was
made the centre ofthe new and second charter
in 1609. Smith, i'ri his history of Vi^inia, re
lates a fact, whieh shows that at that time, it
was the belief in England, that the South Sea,
as the Pacific was then called, was bnt a short
distance from the Atlantic. He states that
in the year 1608, the year before the date of
the charter, " they fitted up in England, a
"barge for Captain Newton, who was after-
'' wards a Deputy Governor of Virginia under
" the charter, which for convenience of car-
" riage might be taken into five pieces, and
" with which, he and his company were in-
" structed to go up James River as far as the
" falls thereof, (where the City of Richmond
" now is) to discover the country of the Mona-
" kins; and from thence they were to proceed'
" carrying iheir barge heyond the falls io convey
" them to ihe Souih Ssa, being ordered not to
" return, without a lump of gold or a certainty
" of the said Sea:" — The discovery of gold
and of a passage into the Pacific, being the

13

twtj great ideas of that age ia respect to j
America. Smith also gives an account of a voyage of
discovery, which* he made that same year
1608, from Jamestown up the Chesapeake
Bay, and says, "tJiat the tidings which were
" brought on their return, gratified the expec-
" tations of every one, that according to the
" relations of the Indians, the bay stretch^ in-
-" to the South Sea." The charter was granted
the next year. Considering the state of the
knowledge of the geography of the country
there can be no doabt King James imagined
he, in granting the territory from sea to sea,
was disposing ofa coimtry of no great exteint
inland; and fully acoaunts for what would
otherwise be incredible. Prior to this time,
however,the English navigators had explored
the coast of Virginia, and discovered its rivers,
which, as already stated, had been followed
up by a settieraent near Point Comfort. This
by the acknowledged law of Nations gave
title on that coast to the King of England;
and if the distance between the Oceans had,
in fact, been as small as was then believed,
with a practicable water communication be-
tweeHthem, he would as that law was then
claimed and is now admitted to be, have beeri
the proprietor of the whole Couritry embraced
within the terras of his grant. But if the
King of Eriglarid, had any just conception of
the Country, then he could not have granted
away, or rather attempted to grant away .all
this territory without, as I shall hereafter,
show, a direct violation of the foundation
principle on which he could alone support a
claim to any part of the con tinent of Amer
ica. It is therefore quite apparent, that in
making this grant King James did not intend
to overstep the law of Nations by disposing
of what did not belong to him. And now, 1
am prepared to put the enquiry, what did the
charter, in fact, grant to this Company? I
answer, ywsi as much as the crown ofEngland
had title io— just as much as belonged to it and
no more. For all beyond that, the grant was
not worth the parchment on which it was

written. It is plain Kings canmot grant what
does not belong to thera more than other men. -
The law of Nations forbids it. If it were
permitted^ it would fill the world with conten
tion and unsettle all public r^ts. Nor can
they grant that which belongs to nobody —
that whicli has never been subjected to the
actual possession, use and domfilion of man.
See VattelBook 1. Chap. 18. Sec. 203-204-
205-206-207 and see note to Sec. 207. And
this presents the question, how much of the
granted Country did the Crown of England
own? To answer this enquiry satisfactorily, we
must resort to those principles, which have
been settled by the law of Nations. It is a
rule of that law, that the first finder and ac
tual permanent occupier of an unknown un
inhabited Country, acquires an exclusive
property in and dominion over it; subject
however to this qualification or exception,
that the quantity of territory appropriated by
him must be proportionate to his wants and
his ability to use it. The general rule is that
the first discoverer and occupier acquires
tille. Spain first discovered this Continent
and made the first settlement on it. She
therefore as the first finder and occupier
clairaed the whole of it. This was a spe
cious claim; but it was resisted by other Na
tions, and England was one of them, who
insisted on the qualification of the rule. To
strengthen hor claim, Spain applied to the
Roman Pontiff who was then in the zenith of
his power. The Pope, as the Vicar of Christ
on Earth, granted the whole Continent to
Spain, and forbid all other Sovereigns or
people under pains and penalties from enter-
fering with it. ' Nu Nation in Europe, how
ever, except Portugal which had got a similar
grant from the Pope of the Countries be
yond the Cape of Good Hope, paid any at
tention to this grant. England was foremost in
resisting it, in insisting on the qualification
of the rule, and in sending out her navigators
to explore the uninhabited portions of the
Continent, and in forming settlements on
such parts of it as were vacant. This same

14

King James was particularly aotive in his
opposition to this pretension of Spain. He
sent out navigators on voyages of discovery
— granted charters and planted colonies. —
When he made this grant, a little band of his
subjects had planted theraselves on the coalt
of Virginia, who altogether would make a
small village, and could not possibly for cen
turies to come actually people the Country
embraced withiri what are now kriown tobe
its limits — which are almost as large as all of
Europe. If therefore he knew what he was
granting, as we know he did riot, he , was
guilty ofa gross violation ofthe principles of
his own goverriment, and of the . law of NaT
tioris. Both England and the United States
are now engaged in a . controversy about , a
large division of the Territory embraced in
this grant — and both found their claims upon
discovery and settlement made .near two hun
dred years afterwards. Vattel after laying
down the i rule, that all mankind have an
equal right to things that have not yet fallen
irito the ppssessiori of any, one, and that tiiey.
belong to hini. who- first takes possession of
them, says, "but it is questioned whether a
" nation caijby the bare act of taking posses-
"Sion, appropriate to itself. countries, which it
" does not really .occupy, and thus engross a
"much greater extent of territory than it is
" able to people or cultivate. .Itis not diffi-
"cult ito, determine that such a pretension
"would be. an absolute infringement of the
" natural rights of men and repugnant to the
" views of nature, which having destined the
''whole earth to supply.the wants of mankind
" in general, gives no "nation a right to appro-
"priate to itself a - Country except for the
" purpose of making use of it, and not' of hin-
" dering others from deriving advantage ..from
" it. The law of nations4herefpre-will.not.ac-
" knowledge the property ai.d sovereignty of a
" nation over any uninhabited Countries; except
" those of which it has really taken actual pos-
" session — in which it has- formed -settlements, or
" of which it makes actual use" See Vattel,
Book 1, Chap. 18, Sec. 208.

From a.regai^d to the fitness . of things, to
provide for the future wants and business of
men, and to give ample but reasonable scope
for the expansion of newly- formed commu
nities, a somewhat liberal application has
been given to these' principles. It has been
and is a received, > doctrine, ' that the nation
which first discovers .a river and permanently.
settles ondts waters, thereby acquires title to
all the 'territory drained by it. And this is
believed to be as far as these principles hava
been extended, or their exterisiori acknowl
edged. On that ground, the United States
now claim the whole (Country drained by
the Columbia River. Great Britain does not
deny the principle to this extent; but she dis-
,putes the fact of our prior discovery and set
tlement on the waters of that river. At the
date of this charter, neither the Ohio River
nor any of its waters, nor the countries be
yond it, had been discovered, much less occu
pied. Nor was it discovered or occupied for.
n&ar or quite a century afterwards. To how
much country then within the limits of that
charter had the crown of England a title,
wliich the law of nations would recognise as
valid? I answer, to so much, as is divided by
the rivers that flow into the Atlantic, and had
been discovered by the . English, navigators,
followed up by settlement, .and no - more. —
In other words, to the top of the Alleghenies?
those highlands that divide the known from the
then unknown rivers. . Beyond that the char-.
ter was clearly a nullity, on the. same princi
ple that the Pope's grant of the Continent
was repudiated by the law of nations. • Both.
grants belong to the same , cl-dss. , . It is plain
Virginia must 'look to something else than to
that charter for a title to the Country beyond
the mouiitairis. , And here permit me to ad¦^
varice Orie .step further. For the sake of the.
arg,ument, I will imagine that the charter did,.
in fact, vest iri the corporation, a valid .title
to all" this boundless and unknown region. —
And now let me . enquire, did it remain in
force, and perpetuate and transmit an unex
tinguished right to the countries down to the.

15
data of the deed of cession in 1784? This| The King in Ihismatter, appears to have, ac-
charter among other things provided for a ted with fairness, and with a view to the wel
council of thirteen persons who were to hold fare of the people of the Colony. He con-
theirsittingsin the City of London, in whom flrraed. to them all their property, and all
was vested the power to appoint to, and re- rights to lands, which they had purchased of
move from office the Governor and all other the .corporation. It cannot be denied that tbe
officers of the Colony, "and also to make, or- King's bench' had full power to render this
"dain and establish,. all manner, -of orders, judgment; nor was the regularity of the pro-
" laws, directions, instructions, forms and
" ceremonies of government and magistracy,
"fit and necessary for, and concerning the
''government of said colony and plantation.'
Hazard's Coll. 1.. Vol. 67. The charter de
prived the Colonists of all power or' voice in
their own affairs; and what made it all the
worse, they were .to be governed by this coun
cil three thousand miles off, co.mposed of men
who had no opportunity to see with their own

cpeidirigs ever after called in question so far
as I can find. By this judgment, the people
of the Colony were placed on the footing of
other subjects of the Crown, and their con
nexion with the Corporation dissolved. ' The
Crown now again held the territory as itheld
it before the charter — and, thenceforth ^old
out, or granted away, the vacant lands at its
pleasure. If it be urged that the vacation of
the charter was .a high-handed measure — an

eyes, the bad effects of their follies, mistakes unjust attack onthe rights of the colony and
or acts of oppression. As might hive been its, people, and therefore the judgment of the
expected, matters went on badly with the Court ought to be disregarded and treated as
Colony. Complaints of abuses, of the home a nullity; and the charter held to be in full

Council, of the Colonial Governors, and of:
official oppressions on the colonists were per
petual. This state of things continued for,
fourteen years, when the King caused a. writ:
of quo warranto to be issued against the Cor
poration for abuse of ,power. At the Trinity
Term of the Court, of King's Bench in 1624,
judgment was rendered against the corpora.
tion, cancelling the patent and ordering, the

force, the judgment to the contrary notwith-
standing:-^the, answer is, that the Legisla
tive and public proceeding? of Virginia prove
the very reverse of this. It was natural, that
the corporators — the men, who had thus
been deprived of their property, should en
deavor to get it back, and to obtain a renewal
of their charter on which they had.expended
much money. They, as it appears, made the

franchises ofthe charter to be resumed by (attempt; but it, was strenuously, and. succesa-

the crown. See Chalmers Annals. .62. ,
Thus ended the charter, and the Crown by
the judgment of the Court became re-inves
ted with the .fee of the land, granted to the
Corporation.. In August of .the same year,
the King issued a, commission appointing a
G-overnor and eleven.iCouricillOrs to reside in
the Colony, to whom the governmerit of its
affairs was committed. [1 Haz.- Coll... 189.]
This Comraissioner gives a history of the pro- \

fully resisted by the people of the Colony. —
About fifteen or sixteen years after the disso
lution of the Corporation, the Governor and
Council of Virginia sent an inhabitant of the
Colony to England of the name of Landis
on some public business. Instead of attend
ing to the mission on which they sent him, he
exhibited a petition in theHouse of Commons
praying for a restoration of the letters patent
of incorporation to the late London Company.

ceedings in the quo warranto: — the.judgment. He, was probably invited to this by- the old

arid the causes for which it was rendered.-
Thris Virginia became what is commonly cal-

j members of the corporation who lived in Lon-
jdon. When news of this proceeding came

led, a Crown Colony, and so remained down to Virginia, the Grand Assembly, as their
te the date of the American. Revolution.— General Assembly was then called, took the.-

16

matter in hand. According to their statement
'they had a great and solemn debate on this
subject; which resulted in passing an act pre
faced by a preamble, or declaratiop (as they
call it) setting forth their reasons for passing
it. They commence by averring th^t Lan
dis had mistook the business on which they
serit him — that he had no authority from them
to present the petition. They proceed to
expatiate in strong and eloquent language
on the intolerable abuses ot the old corpora
tion, and on their comparative happiness and
prosperity under their new government. —
They deny that they or the people of the col
ony ever desired or sought after a restora
tion ofthe corporation, andthey say that "the
" old corporation cannot by any possibility he
" again introduced without absolute ruin and
" the dissolution of the Colony." And final
ly to sura up the whole, they "declare and tes
tify to all the world, that they will never ad
mit the restoring of said company," saving,
however, to themselves, "a most faithful and
loyal obedience to his sacred Majesty their
dread Sovereign." All this is followed by an
act declaring that any person who shall en
deavor to restore or reduce the colony to a
corparation or conipany shall forfeit all his
estate within the limits of the colony, one
half t-o the iriformer, arid the other -half to
public uses. This act was passed ou the 1st
of April 1641. See 1 Vol. Hen. Stat. 230.
The history of Virginia shows that these
colonists had good reason to resist the resto
ration of the corporation. The charter gov
ernraent from the time of the first charter in
1606, had existed about 18 years before its
vacation. During that time more than nine
thousand emigrants had been sent to Virgin
ia, and yet at the dissolution of the corpora
tion, the colony was reduced to about eighteen
hundred. When this attempt was made to
restore the charter, the new government had
been in operation about the same length of
time, and the population of the colony had
risen up to about twerity thousand. [1 vol,
Marshall's Life of Wash. 68.]

About thirty years still later, the Grand As
sembly sent certain agents to England to en
deavor to procure a modification of the Colo
ny government. In their correspondence with
the officers of the crown the old charter ia '
mentioned by them, in which they Say, the old
charter was called in at the instance and for
ike sake of ihe planters. ,[2 vol. Henning's stat.
;526.] It would seem to be quite too late, now,
to set up or insist on the validity of a charter
which wae vacated at the instance and for the
sake of the early colonists— that relieved them
from oppression — advanced their happiness
and prosperity — the renewal of which, ihef
never sought or desired, an J firmly resisted.
I have now done with all I propose to say
on the subject of the charter; and will next
direct my attention to the new government
established in its place.
Virginia now became, and as I have al
ready said, ever after remained, till her separ
ation from the mother Country, a crown or
Royal Colony. And here permit me to ad
vert to one important distinction between a
charter and a Royal Government. Whatever
rights are secured by the charter cannot be
infringed or altered by the crown without the
coriserit of the Corporation; nor abrogated un
less by judgment of law founded on proof of
some act of omission or commission, which
works a forfeiture or dissolution of the Cor
poration. But where the government is fouh-
ded on Royal Commission, as that of Virginia
was on the dissolution of the Charter, it is a
mere creature of the Royal will — its bounda
ries — its powers — all its machinery of gov
ernment, may be modified, altered or an
nulled at his pleasure and discretion. That
the extent of the Royal provinces depended
upon the pleasure of the crown, who might
alter their boundaries or dismember them at
will, see the case of Johnson vs. Mcintosh 8
Wheat. 543. 1 Story's Com. 143.
Numerous instances might be adduced,
where ancient boundaries v/ere restrictpd or
jienlarged — where established Colonies were
divided, and where two were united into one

17
bytjrder ofthe King. There was scarcely a ! arable from the sovereignty— (See. Vatttel
province in America at the commencement Book 2, Chap. 7, Sections 79 to 84 Inclusive.)
ofthe Revolution, in regard to which this It follows also , from the equality of nations,
power had not been exercised, and in- respect in respect to which, the law is, thit "what is
to some of them in repeated instances.. The permitted to one nation is permitted to all,
^ authority of the crown to make these changes i and what is not permitted to one is not peT-
seems never to have been questioned. . From mitted to any." When the new. government
this distinctiop between a charter and a cKown was established in 1624, the same benighted
colony, it results that the former has a vested ignorance of the interior of the Country still
right to its boundaries which cannot be ohan- prevailed that existed when the charter was
ged or abrogated except in one of the modes grantedi sixteen years before. Neither the
already stated;iwhile a royal province has no river Ohio nor any of its waters were known.
such right. It therefore becomes all impor- Consequently the rightful limits ofthe ter-
tant to look into the Colonial history of Vir- ritory of th^ C'rcwn were still confined to the
ginia, and see, what the crown in fact, did in sources of . the rivers that flow into the At-
respect to the boundary and limits of the lantic. There .was still only a feeble settle-
province, while it remained a crown Colony, ment few in numbers, not exceeding eighteen
The royal government was established on the hundred — comfined to tide water, and on the
dissolution of the Corporation, without 'speci- decline. It is thetefore impossible to ima-
fying any boundaries, — the King's commission jgine, that the King in granting his commis-
merely declaring, that the persons to whom it isi on, for the.governmentof this little handful
was addressed, were, appointed tho Governor j of people intended under the name of "the
and Council of 'fthe Colony and .Plantation. Colony and plantation in Virginia" to ex-

in Virginia." See Haz. Coll. 189.

tend a government over, the vast region be-

•if he intend.ed to embrace more, he acted in
violation of the law of Nations, which is as

It is a specious argument on ..the side (>fltween the Atlantic and Pacific embraced
Virginia to say; that if no change .was made in.) within the terms of the old charter., Ifhe
this respect, it is to be presumed the new gov- intended to confine the government to such
ernment was corextensive with the limitsof .territory as in- fact, belonged to the crown
the old,charj;er.. , And I admit, if the Crown | whatever that might be, it was all right, but
of England had owned all the Country em
braced within it, the arguraent would be sound-
But here again the principle of the la w, of n a- (obligatory on, Sovereigns as on private por
tions returns in all its force, that the limits of ! sons. (SeeiVattels' pi-eliminary Chap. Sec.
the newi government .must, of necessity, be 7.) In the absence of proof to the contrary,
restricted to the territorial rights ofthe crown. LitJs not. to be presumed that he intended-to
The king could no more set up agovernment! offend against the kw of nations by attempt-
over a Country not his own, and where ho (ing to set up a government over what did not
had no, subjects, than he could grant it away s belong to him, and where be had no subjects
. , by charter. The arguments against both are i to be governed. If he was ignorant of tbe
the same... .This rule of the law of nations is extent of Country between the two seas, and
ipunded on the plainest principles of commo.i of the actual extent of his territory, as we
sense arid of public policy. It results fromi kriow he was, the law of riations will restrict
the authority already cited to show how a na- ; the operation of his actrto what was lawful.
tion may acquire vacant territory and estab- 1; This is my answer to the argument, that the
lish government in it. It, results from the; new government must be presumed to have
law of the national or high domain, as it is been co-extensive with the liraits of the old
sometimen called, which is held to be insep- 1 charter, I'n 1632, only eight yeai's after Vir-

18

•ginia became a Royal Colony, Charles 1st
granted Maryland to . Lord Baltimore. In
1662, Charles 2d, granted , Carolina to Clar
endon, Carteret and others, and in 1680 he
granted Pennsylvania toWm. Penn. All of
¦these were within the limits of the old char.-
ter, I will now 'direct your Houors atten
tion to an item of history to show how this
matter, of the extent ofthe provin.ce, was un
derstood here in Virginia in those times.
In the year 1670, the Lords Commissioners
of Foreign Plantations sent out from Eng
land a series of en-quiries, respecting Virginia,
addressed to Sir William Berkeley, who was
the Governor ofthe Colony and had been for
thirty years; except, a short interval in Crom
well's time; and who, consequently, must have
known better than any other man, what were
the limits and e.^'rtent of the government over
which he had so long presided.
Judge Marshall in his history, says of Sir
William Berkeley, that "he was highly respec
table for his. rank and abilities. He was still
more distinguished by his integrity ,by the mild
ness of his temper, and the gentleness of his
manners." They were answered by him the
next year. These enquiries with their an
swers will be found in the 2 Vol. of Henning's
Virginia Statutes page 511 to 517. Mr. Hen-
'ning prefaces them, with the remark, that "a
" more correct statistical account of Virginia,
" at that period, cannot, perhaps any where
" be found. The answers appear to have been
"given with great Candor, and were frora a
"man, well versed in every thing relating to
" the Country, having been for many years
" Governor." To the question, "What are the boundaries
and contents of the land within your goverp-
ment?" He answers: — "As for the boundaries of
" our land, it was once great, ten degrees in
" latitude; but now'it has pleased his Majesty
" to confine us t,o half a degree. Knowingly,
" I speak this— Pray God it may ,be for his
"Majesty's service, but I much fear the con-
" trary," Mr. Henning in a note to this an

swer sa}^, ; that -the Tialf degree ¦of latitude
must refer ; to the Eastern boundary on the
¦Sea Shore. In this, he is doubtless, correct,
;,as before that time (1671) the Oarolirias had
been granted on the South and Maryland
-on the North, both taken out of the old char-
.ter limits.
'Question. — "What rivers, harbours, or
roads are there in or about your governraent,
arid ot what depth and soundings are they?"
Answer. — "Rivers., we hive four, all able
safely arid severally to bear and harbour a
thousand ships of the greatest burthen." And
for the names of these four rivers he refers
to his answer to a preceding question which
was, "What castles and ports are within your
government, and how situated."
Answer. — "There are five ports in the
Country, two in James River, and one in the
three other rivers of York, Rappahannock and
Potomac." Put these several answers together and
they amount to this, that Virginia for her
Eastern boundary along the sea shore had half
a degree of latitude — that in the interior, she
embraced the Country drained by the James,
York, Rappahannock and Potomac Rivers. —
It is a perfectly plain and well defined gen
eral description of that part of the present
State of Virginia which is situated to .the
East of the Alleghany Mountains. This was
the Virginia of that day, as appears by the
answer of the man, who for near thirty years
¦had been its goVernor-i-a man of ability and
Integrity — an answer not casually, carelessly
or incidentally given; but officially and direct
ly, with care and deliberation for the infor
mation of that department of the home gov
ernment, vvhich had charge over the Colon
ies. Its correctness therefore can not be
doubted. When enquired of "what "rivers
there are in and about his government? —
Does he name th,e Ohio as one of them, or
any of its great tributaries flowing into it
from the East, such as the Monongahela,
Kanawha, Kentucky, or Tennessee! He
knew nothing about them, and ifhe did, then

19
rt IS plain he did not regard them as being! rise to some ofthe greatest events of the
Within his' government. There is another next. Two years after Gov. [Berkeley had
'.omission in these answers, that shows thatit given this information to the home Govern-
was nqt then understood, as is now conte'n- ment, the French, whose settlement at Q,ue-
ded, that the new government embraced all bee was co-eval with that of the English at ,
, the Country within the limits of the Virginia Jamestown, penetrated through the great-
Charter. Pennsylvania was already within Lakes, and passing over the Country from
its limits. These answers were given aine Lake Michigan, ithro,ugh the, Fox and Wis-
years before the grant to William Penn. The consin rivers, entered the Mississippi,descen.
fact that he does not name the Delaware or ^ed it-a thousand miles, arid returned again
Susquehanna among the rivers in his govern- into the Lakes through the Illinois river.—
ment proves very clearly that he did not re- iThe report of Joliet, a Missionary, who with
» gard that country as part ofthe then Virginia. | a party of men, had perforraed this expedition,
Those rivers and their location were well excited the enterprise of Le Salle, a French
known in 1671, And if the new government i Ofiicer, who explored 'the Valley of the Mi^-

was understood to embrace all the old charter ;
limits, would he not have regarded all of the i
territory, as within his government, and as still j
being a part of Virginia which had not been;
granted away to Lord Baltimore in that quar- i

sissippi and in 16S3, founded Cahokia, Kas-
kaskia and some other Villages, and return
ing to France'laid before the French Cabinet
a scheme of forming an establishmeritat the
mouth of the Mississippi and by a connected

ter? Arid if so, would he have forgotten to chain of settlements and military posts to
name the rivers in Pennsylvania in his an- draw a cordon around the English Colonies
swer? Judge Marshall, states that in 1622, which had nb where penetrated beyond the

two years before the Colony of Virginia was
put into Royal Commission, the settlements
had extended along the banks of the James,
York, Rappahannack and even as far as the
Potomac, It is very plain, that Governor
Berkeley regarded the Virginia settlements on

Alleghany Mountains, The King of France
entered into the views of La Salle, and took
immediate measures to carry them into ex
ecution. This project v^as viewed for a long
time by the English with little concern, and
as little more than a wild chimera; but the

the Coast, and the Country drained by the (French steadily pursued it /or half a century
rivers flowing through the settlements, as | or more, till they had possessed themselves
embracing his government and the whole of s of all the commanding points on the Waters

it. This gives to the Royal Commission ua
der which he w.as acting, a reasonable inter
pretation; while that now contended for by

of the .'Mississippi and St, Lawrence, with a
connected chain of settlements from the Gulf
of the St. Lawrence to the Gulf of Me.xico.

Virginia, which would extend his government It was then that the English awoke'to a con-
to the Pacific, i,s most unreasonable and e.x- -viction ofthe reality that their neighbors had
travagant; as well as repugnant to the law of laid the foundation of one of th'e most magni-
nations, as has been already shown. But a | ficent empires the wcfrld had ever seen, and
, new state of things was now shortly to arise
— the curtairi, which had so long hid in dark:
ness the magnificent 'Valley ofthe Mississippi
and its tributaries was soon to be drawn aside,
and lay it open to the view of the %vorld.-

which, in time, would overshadow, if it did
not destroy the power of Britain on this Con-
i tinent. But at that period the English had
I vastly the advantage ofthe French in the
number of their Colonial population, . No

Discoveries were ,now about to be made,! sooner were the English sensible of their
which formed the basisofone of the grandest danger than disputes began to arise between
political conceptions.af that century, and gave* them and the Freuch about their boundaries.

20

and especially about their respective i rights
to the great Valley beyond the, Alleghauy
Mountains, ¦
The French claimed the Country beyond
the Mountains as the first explorers and first
permanent occupiers of if. The Britisb'.res-
t-ed their claim on the grouadf that they were
the first explorers and first permanent cccu-
piers of the Atlantic coast, and that all the in
terior from sea to sea, was but an appendage
to that coast. Judge Marshall, ia his histo
ry, has stated the claims of the two parti^es
in these words — "While Great Britain claira-
f' ed an indefinite extent to the West in con-
" sequence of her possession of the sea coast,
" and as appurtenant thereto, France insisted
" on confining her to ihe Eastern-side of the-
" Apalachian or Alleghany mountains, and
" claimed the whole countries, whose w.aters-
" run into the Mississippi in virtue- of her right
" a? the first- discoverer of that river. The
" delightful,, region between the summit of
"those mountains and tbe Mississippi, was
" the object for whioh these two powerful na-
" tions contended; and it soon became appa-
¦' rent that-the sword alone could decide the
"contest." (1 vol. Marsh, 352i) It was so de
cided. The capture of Quebec^tlie destruc
tion thereby of'the seat, of the French pow-
• er — the cession by France to England of Can
ada and of the whole Eastern valley of the
Mississippi, with a sm-all; reservation near
its mouth, are great events with which all
are familiar. Thus Great Britain in .1763 ac
quired title to the country beyond the moun
tains by treaty of cession, I hold thai; that
cession was- the heginning and foundatio;-! of
her title; fior the chapter of the law of na
tions to which 1. have already called, thq at
tention of the Court, pointing out and pre
scribing the modo in which nations may ac
quire title to vacant and unoccupied territo
ry, shews that tbe French had complied with
a'Uthe conditions that law.imposes; while E.i-
gland had complied with none of them. She
had neither discovered nor occupied the coun
try in dispute, or any part of ii;. That kw
also shows, that the claim of England, that
her possession of the Atlantic cpast.ia, this part
of America carried with it, as appurtenant to
it, the whole interior of the contihentor any
part of it, beyond the sources of the rivers
which discharge themselves into the sea on
that coast was not even a respectaUe . prd(7ice
of title. The title of France was the sariie-
¦with that by which the United States now
claim the Valley of the Columbia river, with
tills' difference in favor of France, that from
¦tinf} time when. she first planted a Colony on:

the -waters of the Mississippi 'she maintained''
uninterrupted possession of the country for
near three quarters of a century. Ohio holds,
what in respect to Oregon, is now the Amer
ican side of the question. Stoddard in his
history df, Louisiana says that prior to the
time of the fe,ssion |o England, the whole-
territory on both, sides of the. Mississippi sit-'
uated between the lakes and the Gutf of Mex
ico-, and between the Mexican and -Alleghany
mountains,- went'underthe general name of
Louisia,na— that part of it ceded to the En
glish lost, the name, (page 71.) Assuming,
then, that England by that cession for the first
tirae acquired a valid title to the Valley of
the Ohio, the question presents itself did the «
crown attach it to, Virginia?. This it haij an
undoubted right to do or not, at its pleasure..
For it is idle to say that the colony had any
power or control over the kiiig in this matter.
From the time Sir 'William Berkeley in 1671,
gave the answers already spoken of, down to
the Trea,ty of Cession by Franpe in 1763, po
alteration,, that I, can find, was made bythe
crown, or by its authority in the limits of
Virginia, unless the grant of Pennsylvania .
to William Penn in 168.0 be regari/ed as such..
This brings us down to within .thirteen yea^s
of the Declaration of the American Indepen
dence, Let us now see what was done with
the ceded, territory by the crown during that
interval. , The treaty of cession by France
beai^sdate.on the, 10th of February 1763, —
On the lOth. of Oofober of that .year, the
King of England issued a royal proclamation,
which has a most material bearing on this
question.. It commences.by reciting that by
the late treaty with Prance^ the Crov,rn had
secured valuable and extensive,. acquisitions
of territory in America; and proceeds to make
known that letters patent had been issued for
the establishment within the countries ceded
to .the Cro,wnof "four distinct and. separate
governments styled and called by the names
of Quebec, East Florida, West Florida and
Gl-enada," It then marks out the boundaries
of these governments, after- which, it goes on
to annex certain new districts of country to
the provinces of Newfoundland-', Nova Sco
tia and Georgia; but the country between thd
Alleghenies and the Mississippi is not inclu
ded in any' of these. Having thus disposed
of his newly acquired dominions, except the
country beyohd the mountains,, be proceeds
to make a disposition of that. He says that
it is just and reasonable, arid essential to hia
evfn interest, that? tbe tribes of Indians with
wh?im he was connected, and who Hve under-
! his,protsctiDn, should not. bje molested or dis-

21

1;urbedin,the possession of suoh parts tjf'his
dominions and territories as had been reserv
ed, to them for their hunting grounds;' where
fore he forbids all governors of anv of his
colonies to'make grants for any lands^ "heyond
the heads or sources of any ofthe rivers, which fall
mto the Atlantic fi-om ihe West or North- West.'
And ha'ving thus prohibitedallgrantsof lands
beyond the heads of the Atlantic rivers, he
proceeds.further in these words, ''And we do
"•further declare it to be our royal will and
"[ileasure, for the present as afo!i-esaid,-<o re-
" serve under' onr --sovereignty, protection and
"dominion for the uSe of said 'Indians, allthe
" land and territories lying to the Westward of
"ihe sources of the rivers which fall into 'the
" sea from the West and North- West as aforesaid.
"And we do strictly forbid, on pain of our
" displeasure, all our loving subjects from ma-
"¦king any purchases or settlements ¦w'ha.t-
" ever, or taking posses#on of any of the
"lands above reserved, without our especial
" leave- and license tor that purpose first ob-
" tained. And we do further strictly enjoin
"and require all persons whatever, who have
" either wilfully or inadvertently settled th«m-
'" selves upon any lands, which not having
"been ceded to, or purchased by us, are still
" reserved to the said ludians as aforesaid,
"forthwith to remove themselves from such set-
"tlements." (See 1 vol, L. U. S, 446,)
The government, at home, well knew from
the history of the past, that if the country be
yond the mountains, which was then inhabit
ed by powerful and warlike tribes, was in
cluded in any of the Colonial Governments,
encroachments would be made upon them by
the people, which would be "the signal for
new Indian Wars, For the security, there
fore, of his Colonies, as well as because it
was "just and reasonable" that they should
have a country for their hunting grounds free
from molestation, he thought proper not to
make a province beyond the mountains, nor
to attachi it to any (/olony; but "to reserve it
wider his own sovereignty, protection and do
minion, for tlie use of the Indians." And to
carry his intentions more effectually into ex
ecution, and^ to mark more emphatically his
determination, that this country so reserved
and set apart, should not forifa a part of, or be
under any Colonial Government, he orders
all settlers beyond the mountains forthwith to
retire from the reserved territory. It is noti
possible for language to be stronger, or the '
intention ofthe Crown to be more distinctly
stated. If, in fact, the country beyond the
fountains was included in the Colony of Vir-
jrinia, by the Royal Commission of 1624,

as is riow contended, or if it had been inclu
ded in it at any subsequent time, it cannot be
doubted it was now severed from the province
by this proclamation, and the province" itself
confined to the-sources of its Atlantic Rivers,
that is to say, to the Alleghany Mountains,
The right of the' Crown to do this, as has been
already show'n, was unquestionable. This
proclamation, then, fixes the limits of the
Colony of Virginia precisely where, and as
they were nearly a hundred years before,
when-Sir William Berkeley gave his answers
on this subject; and precisely where tbey ever
wereunder the royal government, so far as I
can find. It follows as a necessary conse
quence from this proclamation, that if the
General. Assembly of Virginia, either with or
without the Royal sanction or confirmation,
had, prior to that time, extended the lines of
any county over the limits of the reserved
country, or if they, or the chief Executive Of
ficer of the Colonies, had made or promised
any unauthorized and unconfirmed grants of
land, within the reservation, all such Acts of
Assembly, and all such grants, were by vir
tue of this proclamation, effectually put out
of existence and annulled. And if any Act
of Assembly of Virginia to extend tbe limits
of any county in the reserved territory were
passed after the date of the proclaraation, or •
if any grant of land within the- reservation
was made by the Governor or Assembly with
out the special license of the Crown, all such
acts and grants were not only nullities, but
in direct and open violation of the positive
and emphatic prohibitions of tbe proclama
tion; and could not lay any legal foundation,
for a claim of title to the territory after the
separation of the Colonies from the Crown.
They were as nugatory as would be an Act
ofthe now Territorial Legislature or Gover
nor of Iowa to extend the limits of its coun-,
ties into Oregon, or to grant lands there,
without authority of Congress. I can per
ceive no difference between the two casesi
We must not, therefore, lo^e sight of the fact,
that during the whole time ofthe Ro-yal Gov
ernment, the question is, what did the Crowa
do or authorise? Not what unauthorised as
semblies, officers, or persona did. And no-w-
permit me to enquire, did the Crown, after
this proclamation, ever attach th» countf-y r»-
served for the Indians under his own doiaia-
ion,or any part of it, to th-e Colony, of Vir
ginia? If it did, I have not been eo fortunate
as to find the , evidence of the fact. So f^-,
from doing that, a few years after the data ef
this proclamation, and just befor* the break
ing out of the American' Revolutian, Xke

22

Crown had it in contemplation to establish a
new province in that part of the reserved ter
ritory which lies between the Alleghany
Mountains and the River Ohio, and North of
the mouth ofthe Scioto, river, embraciugthe
whole of the present Western Virginia, and
a part of the now State of Kentucky, In
1769, negotiations for the establishment of
this Colony, were opened with the Crown, by
Thomas Walpole, and a nuraber of associates,
residing both in England and America; and
were prosecuted till the terms of thegrant^had
passed the King's Council, and the charter
for the Colony had been prepared and was
complete, except to affix the Royal seals to
the letters patent, when tho whole business
was suspended by the breaking our of out rev
olutionary disturbances, (See Jour, of Cong,
May 1st, 1782, 4 vol. 23,)
During the pendency of these negotiations,
riotice of them was given to the Virginia au
thorities, in a letter from Lord Hillsborough,
then Becretary of State of Great Britain, da
ted July 31st, 1770, That letter, as appears
by the answer, was laid before the Council of
Virginia, and answered by President Nelson
on the 18th of October of that year. The
following are extracts from the answer of the
President and Council : —
• " On the evening cf the day your Lordships
letter to the Governor was delivered to me,
,as it contains matters of great variety and
importance, it was read in Council, and to
gether with the several papers enclosed, it
hath been tnaturely considered ; and I now
trouble your Lordships with their, as well as
my own, opinion upon the subject of them,"
" We do not presume to say to whom our gra
cious Sovereign shall grant his vacant lands,
nor do I set myself up as an opponent to Mr,
Walpole and his associates," * * * *
"With respect to the establishment of a
New Colony, on the hack of Virginia, it ,is a
subject of too great political importance for
me to presume to give an opinion upon, —
However, permit me, my Lord, to observe,
that when that part of the country shall be
come, sufficiently populated, it may be a wise
and prudent measure.',' (See Papers of Cong,
in State l5ep, Nos, 30-77,— and 5 Vol, Rep,
Committee, 2d Session 27 Cong, No, 1063,
page 55,)
This letter of the President and Council of
Virginia, the result of their joint delibera-
t-ions, seems to prove conclusively -that no
doubt existed at that time, in regard to the
boundary of Virginia, No objection is made
that the country about to be erected into a
Province, was a part of the Colony ef Vir

ginia, or that it would circumscribe it within
too narrow limits. On the contrary, it is'
spoken of, not as a country within, but as the
country on the back of Virginia. Mr. Madi
son, in a letter to Mr, Jefferson, in 1782, says
that this letter will be used' in Congress to
prove that- Virginia had no territory beyond
the Mountains, (See 1 Vol, Madison's pa-
persi page 119,) As already stated, I cannot
find that by any act of the Crown, the West
ern Boundary of Virginia was, even during the
existence of the Colonial Government, ex
tended beyond the limits prescribed to it by
the proclamation of 1763. And this brings
me to the period of the American Revolution.
It is here important to understand, correctly,
what bearing the new relations created by
the Declaration of Independence, had upori
the question of right to the Crown lands, and
what the parties to that declaration did in
respect to those laitils.
All lands, on the Coritinent subject to Eagr
lish jurisdiction, which.had not been granted
away by the Sovereign, were the admitted
property of the Crown. When the Crown
was divested of the right of soil and jurisdic
tion, they both of necessity passed to, and
vested in some other proprietor. No sooner,
therefore, was the' war of the Revolution
fairly opened andthe Declaration of Indepen
dence put forth, than the question to whom
these rights had passed became an enquiry of
the deepest interest to the whole confederacy.
All the States were greatly straightened for
the means of bearing their respective propor
tions ofthe expenses ofthe war, -All attach
ed a very great and probably undue inipor-
tance to- these lands, as a source of revenue,
or as a fund on which to obtain credit by
their hypothecatiori. Two sets of opinion, or
if you please, two parties sprung up aboutthe
right to them. One maintained that the
States, respectively, had succeeded to the
Crown lands within their limits. The other,
that the confederacy, or nation, at large, had
succeeded to the rights and property of the
Crown, as a common fund. Many very dis
tinguished-men arrayed themselves on differ
ent sides of this question, Mr. Hamilton, for
example, held the latter opinion, and Mr,
Madison, the former. Those States whose
Colonial limits embraced -any considerable
araourit of these lands, claimed that they were
the property of the State, and that the right
of the'Cro-yvn, by the Declaration of Indepen
dence, had passed to {he State sovereignties,
where the lands happened to be. Those, on
trhe contrary, who had none of these lands'
within their limits, claimed that all the Crown

23

lands and crown property, had passed to the
nation; on the principle, that what was ac
quired and conquered by the common effort,
blood and treasure, was by the law of na
tions and of justice, the common property of
all. Seven States, embracing within their
limits large bodies of these lands, insisted ori
the right of the State Sovereignty— the other
six, strenuously insisted on the right of the
Nation, and thus the controversy forthwith
found its way into the Congress of the Con
federation, where those who maintained
the rights of the natiori, demanded that the
property of the Crown that might be wrested
from it, by their united efforts, should be ap
plied to maintain the war or pay the debts in
curred by it. The States which advocated
the right of the State Sovereignty to these
lands, evidently had a powerful motive to ex
tend their territorial limits as faras possible.
The stale and forgotten claims of the provin
cial governments to territory, were diligently
revived, and ns might, under such circumstan
ces, be expected, were brought forward as
unextinguished and subsisting rights. That
controversy is now forgotten; but the history
of the revolution abundantly proves, that
nothing save the war itself, so deeply agita
ted the whole country, as this question; and
no other subjected the Union to so great peril
and hazard.
In 1777, when the question of the Confed
eracy came to be discussed, in Congress, it
was found impossible to come to any agree
ment on this subject, and the Articles of Con
federation were finally presented to the States
for their ratification, leaving this question un
settled, by omitting to makb any regulation
about it. Some ofthe States, and particular
ly Maryland, claiming that these lands were
the common property of the nation, refused
to accede to the Confederacy for some years,
on acoourit of this omission, insisting strenu
ously that a provision should be incorporated
into the Articles of Confederation settling
this controversy ; and finally, when at last un
der the severe pressure of the war, which
rendered united effort indispensably neces
sary to save the sinking and waning cause
of the revolution, she did come into the Con
federacy, it was with a protestation that, by
so doing, she waived no rights to her share Of
the public domam. Massachusetts and Con- j
necticut setup claims to a large extent of J
country beyond the Ohio, and New York j
claimed the whole territory heyond the Alle
ghany mountains, as within her jurisdiction,
Virginia claimed the whole, and the Confed
eracy also claimed it all. So that for all the I

country West of the Alleghany Mountains,.
there were three distinct claimants, and for so
much as was covered by the respective claims
of Massachusetts and Connecticut, there were
no less than four parties setting up title Im
the same Crown lands. When Virginia, in
l776, came to form her State Constitution,.
she embraced within the liraits, she assigned
to herself, all the territory claimed by the
Confederacy, and by each of these States, —
In fixing her boundaries, the Constitution, in
the first place, cedeti and released to the people
of Maryland, Pennsylvania, North and South
Carolina, all the territories contained within
their charters, and vvhich, as has been already'
shown, wei-e within the limits ofthe Virginia
charter of 1609, It then proceeds to declare,
that "the Western and Northern extent of
Virginia shall, in all other respects, stand as
fixed by the charter of King James I, in the
year 1609, and by the public treaty of peace
between the Courts of Great Britain and'
France in the year 1763." (See 9 Vol, Hen
ning Stat. 118.)
Here is an assumption, that till that time, •
Virginia by virtue of the charter of King
James to the London Coinpany, had been the
proprietor of North and South Carolina, Ma
ryland, and Pennsylvania, all of whose terri-'
tories are thereby ce&i,refeased and confirmed
to them respectively. Not only was this pre- -
tence now for the first time set up; but this ¦
old charter, which never did convey title to
the Colony of Virginia, but to a nonrresident
Company — which had been vacated and dead
for more than one hundred and fifty years — -
which, during all that time, had been repudi
ated by the Crown and the Colony, and that
repudiation enforced by a law of the province
imposing a forfeiture of the whole estate of
him who should attempt to'revive or restore
it, was now found to be a living instrument,
and to invest Virginia with a valid title to the
whole body of Crown lands beyond the moun
tains., This claim of Virginia was remon
strated against by the Legislatures of several :
ofthe States, in language of the bitterest
complaint. There being six States on one '
side and seven on- the other; Co;ngres3 dared
not, if it had the power, decide this disputed
question in favor of either party to the con
troversy. It was clearly foreseen a decision
in fayor of either, would break up the con
federation, and ruin the cause of the revolu
tion. To obviate the necessity of decidirig
this questiori, resort was had to compromise.,
as all other public disputes are settled whfere
an appeal is not fakeu to the swprd,
Virginia, .as will be seen hei'eafte.r, secix-,.

24

red to herself, in the compromise, a title to
the country West of the MountairiS, as far as
the Ohio ; though it was strongly remoustra-
ted agairist by, some of the States, who ob
jected to herretairiing so large a share of
the Crown. lands, -As. this controversy among
the members. 6f the. Union, and in the Con
federacy, was co-e'val vvith the .Declaration
of Independence, it is, apparent that no act
done or law passed- by any State, during the
dispute, without the assent of the claimant
ofthe antagonist, right, could in. the least ben
efit such State, or give any validity ¦ to its
pretensioris, ¦ ...,,
Any laws, therefore, passed by Virginia,
, -whether in the shape of Constitutions or of
ordinary Statute Laws, setting up exclusive
claims to the country in dispute, could avail
her nothing as against the rights of other
States, or of the Confederacy, . We are. not,
therefore, to resort to her constitution or laws
passed during the controversy, to determine
what her rights were, I put them out of the
question, as evidences of right in her bebalf.
I will now proceed to the legislative his-|
tory of the claim of Virginia during, the Rev- '
olution, and show in what manner it was final
ly compromised, '
In December 1778, the Legislature of Ma
ryland adopted a solemn declaration on -the
subject of the Crown lands, 'and addressed
certain instructions in confo-rmity to the prin
ciples of that declaration to the members of
Congress from that State, directing them not
to accede to the confederation unless an ar
ticle or articles should be added thereto, 'giv-
" ing full power to the United States, in Con-
" gress assembled to. ascertain ancl fix the
"western limits ofthe States claiining to
" extend to the Mississippi or South Sea, and
"expressly reserving orsecuringto theUni-
" ted States a right in common, in and to all
" the lands to the Westward of the frontier
" as aforesaid," They also declare, "That
" the exclusive claim set up by some -of the
" States to the whole western country by ex-
" tending their limits to the Mississippi or
'f South sea, is in their judgment without any
" sdlid foundation, and they religiously be
" lieve, will, if submitted to, prove ruinous to
" this State, and to other States similarly cir-
" cumstanced, arid in process of time, be the
" means of subverting the confederation." —
They accuse Virginia of an ambition, by an
¦anjust extension of hor territory, to build up
a State that would overshadow the other
States of the Union, They declare tliBt Vi^j
Sinia had adduced neither, argumierjt nor .eV-'
. idenee in support of her right, "aeserving a

serious refutation," The declaration and in--
structions will both be found in the 10th Vol
ume of Henning's Virginia Statutes page
548 to 556 — and the instructions will also'be
foupd entered at large on Journals of Con
gress of May 21st, 1779, 3 Vol, 281,
About the sarae time, the applicants to the
British Crown for a Colony hack of Virginia,
as already explained, and who claimed to own
the country by virtue of a cession of it, to
them, by the Fort Stanwix Treaty of the 5th
of,.Nov, 1768, petitioned Congress for a con
firmation of their rights, and to be allowed
to form a, State between the Allegheny and
¦the Ohio above the mouth of the, Scioto, gee
Journal of Congress of Sept, 14th, 1779, 3
Vol, 359, On the lath of December 1779,
the Legislature of Virginia sent a remon
strance to Congress, in answer to this peti
tion and also to the declaration and instruc
tions of Maryland, protesting against the ju
risdiction of Congress over the subject, arid
basing her claim to the Western territory ori
the Virgiriia charter, and her State 'Constitu
tion, ¦ See 10 Henning's Stat, 659. The
Fort Stanwix Treaty will be found in the .ap
pendix to Butler's history. of Kentucky, page
:390, When Maryland bad accused Virginia of.
ambition — ^of having adduced neither argu
ment nor evidence of claim "deserving a se
rious refutation" — when she had solemnly
declared that she would not accede to the con
federation unless this pretension was aban
doned — when tho deepest anxiety was felt
that Maryland should accede to the confeder
ation and put the government into motion —
when she stood out 6n this point alone — when
the destiny of fhe Republic v/as suspended on
it, and ready to fall — when Virginia therefore
had every motive, in reply to Maryland, who
felt herself aggrieved, to make such an exhi
bition of her rights as would satisfy the com
plaints of a sister State, ajid we fii^d her put
ting forth on that remonstrance, no other
foundation of claim than this charter, have
we not a right to presume she -had none oth
er? This declaration of Maryland, it will be
noticed, required all the States setting up
claims to the Wpstern country to relinquish
them to the United States as the condition of
her coraing into the confederacy. In this
critical state of things, when nothing but this
controversy prevented the ratification of ar
ticles of confederation— an act so indispen
sably necessary to the prosecution of tbe
'War — to the success of the Revolution and
llje security of American freedom, — the State
of New York which claimed the whole Wes-

25

T:6rn country West of the' ttibuntains, instead
Of remonstrating, yielded to, the request of
Maryland, and with a magnanimity that en
titles her to lasting gratitude, surrendered' up
her rights on the altar of her Couritry by pas
sing an act in February 1780, authorisinghfer
delegates in Congress by deod'of conveyance
to the United States to restrict the Western
limit of that State "as they shoold judge ex
pedient," This act bears the honorable and
parriotic title of "An act to facilitate the com
pletion of the articles of confederation and
perpetual union among the United States of
America," See act at large in Journal of
Cong, of March 1st, 1781. 3 Vol, 582,
The act of New York, the declaration and
instructions of Maryland, and the remon
strance of Virginia ' were allrefe'rred to a
eomniittee of 'Cbngress,'who made a -report
thereon, Onthe 6th of Sept,'lT80, their re-
]}ort was taken up and adopted.
As that report laid the fOuMdation for the
compromise that was finally made of this ag
itating question, and as showing fhe deep
concern felt by Congress on this subject,
(about which Ihave already said it dared not
make a decision,} it is entitled to especial at
tention, as an important historical docuraent.
The report was transmitted by Congress to
all the States, and as adopted was in these
words — viz: — ,
"That having duly considered the several
¦matters to them submitted, they conceived it
unnecessary to examine into the merits or pol
icy of the instructions or declaration uf the
General Assembly of] Maryland, or of the re
monstrance of the General Assembly of Vir
ginia, as fhey involve questions, a discussion
df which was declined on mature consideration,
when the articles of confederation were de
bated; nor, in the opinion ofthe coramfttee,
can such questions be now revived with any
prospect of conciliation; that it appears more
advisable to press upon those States which
ean remove the embarrassments, respecting
the Western Country, a liberal surrender of
a portion of their territorial claims, since
they cannot be preserved entire without en
dangering the stability ofthe general confed
eracy — to remind them how indispensably
necessary it is to establish the federal union
»a a fixed and permanent basis, and on prin
ciples acceptable to all its respective mem
bers — how essential to public credit and confi
dence, to the support of our Army, to the vigor
ef our councils and the success of ourmeas-
Bros, to our tranquility at home, our reputa-
^da abroad, to our very existence as a free,
sovereign and independent people; that they

are 'fully persriaaed'the Wisdom ofthe respec
tive legislatures will lead them to a full and
irapartial consideration of a subject so inter- '
esting to theUnited States, and so necessary
i' to the happy establishment of the federal
union; that they are confirmed in these expec
tations by a review of the before mentioned
act of the legislature of New York, submitted
i'to their -consideration; that this act is ex
pressly -calcuUted to accelerate the federal
alliance, by removing, as far as depends on
5 that State, 'the impediment arising from the
' Western Country; and for that purpose to
. yield up a portion of territorial claira for the
i general benefit. Whereupon Resolved, That
¦ copies of the several papers referred to the
comiriittoe be transnjitted, with a copy of this
report, to the tegislatures of the several
States, and that it be earnestly recommended
to those States who have claims to the Wes
tern Country to pass such laws and give
their delegates in Congress such powers as
may effeciually remove the only obstacle to a
final ratification of the articles of confedera
tion; and thatthe legislature of Maryland be
earnestly requested to authorise their dele
gates in Congress to subscribe the said arti
cles," See Journal Cong, of Sept. 6, 1780,
3 Vol, 516, 10 Vol. Henning's Stat, 562,
This report shows that when the'articles of
confederation were debated, Congress had
declined any investigation ofthe merits of the
claims set up by the States to the Western
Country — that the sa'rae thing was now again
done frora a belief that no conciliation could
in that way be had^a course founded upon
the evident conviction that no State would
yield its claims to another, and that an ex
pression of opinion in favor of one and against
the other, would only produce increased ex
asperation among the States, They there
fore held up the example of New York to
their imitation, and recommended to them to
make liberal surrender of portions of their
claims. And while they held out this recom
mendation of comprortiise to the Stated claim
ing the crown lands, they at the same time,
most earnestly appealed to Maryland to corns
forward and complete the ratification of the
articles of Confederation, and thus perfect the
union and at tha same time forever extin
guish the hopes of the common enemy, who
as the, history of that day evinces flatlereii
himself that a disruption of the States would
take place out of this controversy. Maryland
moved by this appeal to her patriotism, in th«
month of January following passed an act
(her instructions and declaration to the con
trary notwithstanding) authorising her clel«-

26

gates in Congress to accede to the articles of
Confederatiori; but with a protestation that
she did not thereby yield any of her rights to
the back country; declaring that she did this=
because it had been said, that by her not ac
ceding to the Confederation the commori ene
my was ericouraged to hope that the Uriion*
of the Sister States would be dissolved, and
thatthe enemy prosecuted the war "in expec
tation of an event so disgracefulto America;"
and to destroy forever any apprehension of
her friends or hope in her enemies tha,t she-
would ever again be united to|Great Britairij
she came irito the Corifederation, trusting to
the justice ofthe States laying claim to the
back Country, The articles of Confedera
tion- were accordingly ratified by the Mary
land Delegation, See J'ournal of Congress
of Feb'y, 12lh, 1781. 3 Vol, 576,, And of
March 1st, following, 3 Vol. 686,
Virginia likewise participating in the same-
sentiment of patriotism, in the same month
(January 1781) passed an act yielding all her
right and claim to the Country North West
of the Ohio: but .this -surrender was clogged
with various conditions, of which, one was
that the United States should guarantee to her
all of her remaining territory onthe South
East side of the- River, which included the
present Slates of Virginia and Kentucky, —
The.acceptance of this Act of Session, was.
urged upon Congress for more than two years
by ,the Virginia Delegation in Congress, -with
great pei-severance, when in May 1783, it was
finally refused by. Congress, and a resolution
respecting the cession was adopted, of which,
I shall have occasion to speak hereafter,. To
:i right understanding of the claim of Virgin
ia, and of th& mode in whicli it was finally
compromised, it is necessary to state briefly
in this connexion, the grounds on which the
refusal of Congress to accept this act of Ces
sion was placed, and the, public transactions
that preceded and led to it. When this first
act of Cession^ by Virginia was passed, the
New York delegation i-n Congress had not
yet carried into execution the discretionary
power vested in them by the Act of that State,
Connecticut had also passed an Act of Ces
sion of her claims. New York it will be re
membered claimed the whole Country be
yond the Mountains, The claimants under
the Fort Stanwix treaty, who,, as already
mentioned, were, petitioning Congress for a
confirmation of their rights and -to erect a new
State, insisted on their title to all the present
"Western Virginia, and part of Kentucky. It
will thus be perceived, Virginia required from
the Unked States as a condition, of her Ces

sion of the territory bejyorid the Ohio River &
guarantee of the Country between the Alle
ghany and the Ohio which was claimed by
New York and by - those petitioners. The
object of this guarantee was to protect Vir
ginia against these claims. The Petition of
these claimants, -the acts of Cession of New
York, of Connecticut and of Virginia, were all
referred to a committee of Congress to report
thereon. As Virginia required this guaran
tee, the Committee were of opinion, that to
enable them to decide, whether tbe confed
eracy ought to enteririto such an engagement,
it was incumbent on them to examine into
the title to the territory on both sides of the
Ohio, so that they might act understandingly
in the matter. The committee in their re
port, which will be found at large in the
Journal of Congress of the 1st of May 1782,
(See 4 Vol. 21,) state that they had a meet
ing with the Agents of the States of N, York,
Connecticut and Virginia — thatthe Agents of
New York and Connecticut laid before them
" their several claims to the lands said to be
" contained in their several States together
" with vouchers to support the same; but the
" delegates on the part of Virginia declining
" any elucidation of their claim either to the
"lands ceded in the Act referred , to your'
" committee, or the lands requested to be
" guaranteed to tbe said State, delivered to ,
^' your committee the written- paper hereto
" annexed, and numbered twenty," That
paper is signed by the Virginia Delegation in
Congress, of- which Mr, Madison was one;
and States the reasons, why they declined to-
comply with the request ofthe Comraittee to-
exhibit before them the evidence on whioh
Virginia vested her claim. It is not printed
in the Journal of Congress; but the original
Manuscript, will be found araong the unpub
lished papers of the Congress of the Confed
eration in the State Department,'in Book No,
30,, page 557, It assigns several reasons for
their declination, the first and most material
of which is in these words, viz: "The acts of
" Congress in compliance with which the
" above mentioned Cessions (meaning those
" referred to the (Committee) were made, are
" founded on the supp'osed -inexpediency of
" discussing the question of right, and recom-
" mend to the several states having territorial
"claims in the Western Country, a liberal
" surrender of a portion of these claims for
" the benefit of the United States, as the
" most advisable means of removing tbe
"embarrassments, which suoh -questions cre-
" ated. To make these acts of surrender
" then, the basis of a discussion of territorial

27

¦" rights, is a direct contravention ofthe acts of
" Congress, and tends to diminish the weight
"and efficacy of future frecommendations
"from them to their constituents," ' I shall
Hereafter have occasion to remark that this
paper is important to show how Virginia un
derstood the Acts of Congress in compliance
¦with which the States passed these Acts of
Cession. The Committee go on to state
that they have carefully examined the vouch
ers laid before them, and obtained all the in
formation in their power respecting the state
of the lands mentioned in the Acts of Cession
of New York, Connecticut and Virginia — that
they had maturely considered the same, and
that for reasons that are stated by them at
length, they are of opinion that the jurisdic
tion of the whole territory, owned by the six
Nations of Indians and their tributaries was
vested ia New York — that the "colonies of
" Massachusetts, Connecticut, Pensylvani'a,
"Maryland and Virginia had from time to
" time by their public acts recognized and ad-
" mitted the said six Nations and their tributa-
"ries tp be appendant to New York," That
"the crown ofEngland had always consider-:
", ed and treated the said Six Nations and;
"their tributaries inhabiting as far North as-
" the 45th degree of North latitude as appen-\
'• dant to the Government of New York, —
" That by accepting this Cession (that of New!
?' York) the jurisdiction ofthe whole Western (
"Territory belonging to the Six Nations,and
" their tributaries will be vested in the United s
" States greatly to the advantage of the U- :
"nion," Congress in pursuance to this re-j
commendation did accept the New York Ces- )
sion. The territory of the Six Nations of
Indians extended on both sides of the Ohio as
far West as the Wabash and Tennessee
rivers, the latter of which was at the date of
the Treaty of Fort Stanwix called the Cher
okee river. See Butler's history, appendix,
page 392, While these cessions were before
Congress, and in the hands of this Committee,
Mr, Madison, onthe. 13th of Nov. 1781, wrote
to Mr, Edmund Pendleton, that he believed
the Virginia Cession with the conditions an
nexed to it would not be accepted by Con
gress, That it seemed to be the opinion in
that body that an acceptance of the Cession
of New York would give the United States a
title that would be maintainable against all the
other claimants. 1 Vol. Madison papers page
101. As to the Virginia Act of Cession, the
igommittee say, "that it appeared to them
"from the Vouchers laid before them, that
" all the lands ceded or pretended to be ceded.

" to the United States-by the State of Virgin-
" ia, are within the claims- of the States of
" Massachusetts,- Connecticut and New York,
" being part of the lands belonging to the
" Six Nations of Indians and their tributa-
" ries,"' That "it also appeared that great
" part of the lands clairaed by the State of
" Virginia and requested to be guaranteed to
" them by Congress is alsp within the claim
" of the State of New York, being also a
" part of the Country of the said Six Na-
" tions of Indians and their tributaries." —
They conclude by declaring that "the condi-
" tions annexed to said cession are incorapat-
" ible with the honor, interests and peace of
" the United States, and therefore in the
"opinion of the Committee altogether inad-
" missible." This report was debated in Congress from
time to time, till the 4th of June 1783. Re
peated efforts in various forms, were made
by Virginia to obtain the acceptance of
this aot by Congress; but without success. —
The letters of Mr, Madison, then a member
of Congress, written during this time, to be
found in the Madison papers, abundantly tes
tify to the deep solicitude and .anxiety 'felt by
him and his colleagues on this important
subject. It ought here to be borne iri mind,
that the States which held that the Crown
lands were the property of the nation, stren
uously resisted the acceptance of this Act of
Virginia chiefly on the ground, that it per
mitted that State to retain the country be
tween the mountains and the Ohio river;.
which they denied Virginia had any title to.
And it certainly is very difficult to show that
she had any more title to that, than to the
country beyond the river. Various votes had
been taken in Congress, which were regar
ded as equivalent to the rejection of this Act
of Cession; when finally on the 4th of June-
1783, on motion of Mr, Bland of Virginia,,
so much of the former report as related to
that act, was referred to a Committee of five,
of wlipm Mr, Madison was one, and Mr, Ells
worth of Connecticut, afterwards Chief Jus
tice of the Supreme Court of the United
States, was another, Imraediately on this
reference to the last meritioned committee, ,
the States which had opposed the acceptance
of the Virginia Aot of Cession and looked
upon it as rejected by Congress, took it up
anew. The Legislature of New Jersey in
particular, which had constantly protested
against permitting Virginia to retain the ter
ritory between the mountains and the Ohio,
ten days only after this last refer-enoe passed
jiew resolutions On the subject. They com-

28

trifince with expressing their surprise that
"Congress after its former proceedings should
again have taken up the subject of the Vir
ginia Act of Cession, and setting forth their
objections to it they conclude by saying: "We
" canriot be silent while viewing one Stjite ag-
" grandizipg hersplf by the unjust detention
" of that property, which has been acquired
" by the common blood and treasure of the
" whole, and which on every principle of rea-
" son and justice is vested in -Congress forthe
" use and general benefit of the Union they
"represent. They doubt not the disposition
" of Congress to redress every grievance that
" raay be laid before thera, and are of opinion
" there can be no greater cause of complaint,
" nor more just reasons for redress 'than in
'• the present case. They do therefore ex-
" press their dissatisfaction with -'the cessiori
" df Western Territory made by the Stale of
" Virginia in January 178-1, as being far short
" of affording 'that justice whi(;h is' equs.lly.
" due to the United States at large, and re-
" quest that Congress will riot accept of the
" said cession; but that tiiey will -press upon
" the said State to make a more liberal sur-
" render of that territory of which they claira
" so boundless a proportion," See Journal
of C.ong, June 20th, 1783, 4 vol, 231.
The last Committee made a report which
wasfinally acted upon and adopted onthe 13th
of Sept, l'783. See Journal of that day, -4
vol, 265, ¦
As was" the case when the Articles of Con
federation were discussed, and again when
the recommendatory resolution of the 6th of
September, 1780, was adopted, already sta
ted at large, so now the com-mittee, in pursu
ance of the settled policy then decided upon,
abstained from making any enquiry into the
title of Virginia to any part of the country on
either side ofthe Ohio; but took up the sev
eral conditions contained in the Act of Ces
sion, giving to each of thera a distinct consid
eration, approving some and rejecting others,
and laying down the terms on which they
would recommend to Virginia to make, and
the United States to accept a cession. On
the subject of the last condition, which was
the proposed guarantee of the country on the
Soulh-East side of the Ohio, the Committee
say, "as tothe last condition, your committee
"¦are of opinion, that Congress cannot -agree
"to guarantee to tbe -pommonwealth of >Vir-
" ginia, the land described in the saia condi-
" tion, without entering into a discussion of tlie
" right of Virginia to the said land ; and that
"hy the Acts af Congress, it appears to have
" hesB their intention, which tbe committee

" cannot but approve, Id avdid'dtl discUssitfk
of the territorial rights of individual Sfttes,
" and only to recommend and accept a-bession
" of their claims, whatsoever they might he;-to
" vacant territory. Your Committee conceive
" this condition of a guaraintee to be either
;"Uririecossary or tmreasdnable; inasmuch as^
" if the land above mentioned is really the
" property of that State, there is no reason or
:'" consideration for such guarantee. Your
"committee, therefore, upon the whole, reo-
" ommend that if the' Legislature of Virginia
"make a cession conformable to this report,
'"Congress-accept such cession," This re
port, after its adoption, was transmitted to
Virginia, whose' Legislature, on the 20th of
the next month, (Oct, 1783,) passed an Act
"of Cession of the country beyond the Ohio,
iri conforPiity to the terras thus recommended
by Congress, which was accepted by the U.
States OE the 1st of March, 1784, 'See Jour.
of Cong, of that day, 4 Vol.- 342,-1 Vol.
Laws IJ. S, 472, Thus, at length, was ¦ ter
minated, peacefully and happily, this long ag
itated and perilo-us conti'oversy, 'This second
Act of Cession begins by referring to the last
raentioned report, and- accedel to the terms
recommended by Congress, And thus that
report, and- all the acts of Congress referred
to in that report, as evidencing the policy
Congress had adopted, and then adhered to,
in regard to the claims of the -States', are,'in
fact, made a part of the Act of -Cession, by
this reference, as much as though they w-ere
recited at large in the Act, and are to be re
garded as part of it, in fixing its interpretation
and legal effect. The result of the whole
arrangement Was, that Virgiriia surrendered
up the country beyond the Ohio to the Con
federacy, and the United'States left Virginia
in the -quiet possession of the country be
tween the mountains^ and the river, to which
they set up a claim in their own right, and as
assignees of New York. It is thus an unde^
niable fact, that a transfer of the claim of
Virginia was accepted, for whatever it might
he, good or bad, without examination by the
United States into its merits, or production
of proof of its validity by Virginia, which by
the express understanding of both parties was
waived. This closes the legislative and documentary
history of the title of Virginia; and keeping it
in view, we are now pj-epared to present, io
an intelligible form, the distinct question, up
on which the claim now set up by Virginia
to the whole river must turn. The principla
of the law of nations already adverted to, as
laid down by tbe Supreme Court of the United

29

Sta^esi- in the.case of Handtey's lessee w,
Anthony, 5 Wheat, 379,' is "that where a
great river is a boundary -between two na
tions or -States, Uthe original propeiiy is in
neither, each holds to the middle of the stream;
but when one State is the original proprietor,
and grants the territory on one side only; it
retains the river within its domain, andthe
ne-wly erected Stat-e extends to the river on
ly," I have already, by reference to the law
nf nations, shownthat it leans strongly in fa
vor of an equitable partition of the river, and.
will hold the Nation or State that sets up an.
exclusive right to the whole, to clear and con
clusive proof of title, Virginia sets- up such
a claim, and of course takes uponlierself the
, burthen of proving that she hstd-a clear right
to the country on both sides of the Ohio. —
And here the question presents itself, has
Virginia made,, or can she make, clear and
conclusive proof, that, prior to the Act of Ces
sion, she had title to both orto«ither side ofthe-
river! I shall not repeat what I have already-
said on that head:; but there is strong cotem-
porary inferential proof lhat Virginia had no-
title or claim except what was founded onthe.
Virginia charter of 1609, to which* I will
briefly advert. It will be recollected that as
early as 1778, the claims of the State>of Vir
ginia lothe western country, had been- vigor
ously assailed in Congress, and by other
States of the Confederacy, Her pretensions
had been denounced as unfounded, unjust and
arabitious. Against this, .denunciation, Vir
ginia had remonstrated -to Congress as early
as 1779, All this was calculated to, put her-
people, and especially her public authorities,
upon enquiry and examination, into the evi-s
dences and proofs of her title to the country}
in dispute. Nor was she wanting in -this du-i
ty to herself. When the Committee to which |
the first Virginia Act of Cession was just
referred, with those of New York and .Con
necticut, raade their report in favor ofthe ac
ceptance of the act of New York, and the re
jection of that of Virginia, as alre-ddy ex-plain-
ed, Mr, Madison wrote to Mr, Jefferson, giv
ing him a detailed account of the proceedings
ofthe Committee, and of the course pursued!
• by. the Virginia delegation in Congress, and,
urged him to collect the documentary evidence i
necfessar.y<to enable Ihem to meet the objec-i
tions raised against the title of Virginia. 1 1
Vol, Madison papers, 106, It appears from;
that and other letters in the same volume, that|
other distinguished gentlemen were- applied to
for similar aid. Three months later, he again-
¦writes to Mr, Jefferson a very urgent letter
wa this subject, [1 Vol. Madison -papers 119,],

which-comraences with this passage; "Pen-
treat that you will not suffer the chance of a-
speedy and final deterraination of the territo
rial question by Congress, to effect your pur
pose of tracing the title of Virginia to her
clairas," He tells hirathatin every event, it
is proper to he armed with every argument
and document that can vindicate her title ;
and informs him that in all probability, in ad
dition to her own claim of title, the Confede
ration would fortify herself with the title of
New York, which Stale, he says, set up a
claira to all the territory in dispute. He then
proceeds to inform him in detail by what ar
guments thatitle- of New York will be' sup
ported, aaad that of Virginia opposed. As al
ready mentioned, he about the same time, in
a letter to Mr, Pendleton,, (1 Vol, 101,) says
it seemed lobe the prevailing opinion, that
the ,Cessinn of New York would give Con
gress a tille which would be maintainable
against all other claimants. It is true that
Mr, Madison, in all these letters, expresses
confidence in the validity ot the Virginia
claira. But il is equally certain, that though
-Ibis controversy was kepi up for four or,
£ve years, with 'great excitement about it,
both in Congress and, in the States, till the
passage of the Compromise resolution of the
13lh of September, 1783, the Virginia dele
gation in Congress ,were all that tirae at a
loss to know on wTiat ground, other than that
of the old charier, to rest her, claim tothe
country. The Madison papers, do not show
that by their own researches, or those of tbeir ,
friends, the Virginia Delegation were ever
able lo exhibit any other documentary proof
of litle. Nor can I .discover, on looking into
Mr, Je.fferson's correspondence, lhat he was
ever able to trace oul a litle fopVirginia, or
that he or others engaged in the same work,
found anything of any value to support it,
not before well known to the p-ablic. Nor
haa the learned Counsel for tlie Coraraon
wealth. now been able to (?xhibit any new
proof of litle not famiUar lo all at the period
of the controversy,
I think from what has been ,said, it may
now confidently be asserted "that Virginia had
no litle to the country West of the, Alleghe
ny Mountains,] certainly no such clear and
conclusive proof of tille, as the law-of nations
requires her to make,, as the sole condition on
which she can sustain, as against Ohio, ap ex
clusive right lo .the whole river. But here it
may be, and has been said, thatthe deed of
Cession- admits title in the grantor- — lhatth«
United States and ail claiming under them;
are, estopped from going behiad it to enquire

80

into tbe original right. This objection places
a great public question upon the narrow basis
ofa mere legal technicality. When refuge is
taken behind it, what was said by the Supreme
Court in the case.of Handley's lessee vs, An-
thony,already cited, may be applied with much
force, that "in great questions which concern
tlie boundaries of States, where great national
boundaries are established in general terms,
with a view to public convenience and the avoid
ance of controversy, we think the great object
where it can be distinctly perceived, ought
not to he defeated hy ihose technical perplexities,
which may sometimes influence contracts be
lween individuals," But if it be admitted
that the doctrine of estoppels is recognized
by the law of nations, as applicable to a trea
ty, deed or Act of Cession by. -one independ
ent sovereignty lo another, still it would not
be applicable lo this deed of Cession, If this
were a mere naked deed of cession or con
veyance of the country, without reference to
any extrinsic or antecedent fact, the question
would fairly and fully arise whether the law
would permit either party to resort to the an
tecedent or extrinsic facts, which induced one
parly to make and the other to accept the
deed for the purpose of putting a construction
on it. But if the deed contains recitals of
facts or motives, or references to them, then
the facts thus recited or referred to, become a
part of the deed, and we have an undoubted
right to look into the facts lo w'hich reference
is made, and give them the same weight and
effect as though the matter referred to were
incorporated into the instrument at large. —
Now this de^d of,Ce.ssion is of the laiter class,
and begins by reciting in full the Act of As
sembly of Virginia of the 20th of October
1783, which empowered her Delegates in Con
gress- lo execute the deed. That act is not
only a part of the deed, but it is the sole au
thority on which the validity of the deed rests,
Il is what is commonly called the power of
attorney to make the conveyance. That Act
of Assembly thus recited at large, in the deed,
begins by a recital of facts and of the motives
thai induced the Legislature to pass it. And
for its motives il refers to certain public acts
or transactions which being referred to, we
have a right to look into, and treat as a part
of the deed. The first public act thus refer-
edto, is the resolution of Congress of the 6th
of»September 1780, recommending to the
Stales setting up claims to vacant lands, to
make cessions of them to the confederacy,
I have already shown, lhat when that reso
lution waa passed, as well as prior to lhat
time when the articles of Confederation were

debated. Congress flecided that they ¦would
riot enquire into the /validity of the claim of
any State; hut that instead of such eriquiry,
Ihey proposed the Slates should hy way of
compromise erne and all couvey their claims,
such as they ffliigfet be, to the Confederacy,
and in lhat way quiet the title and settle the
controversy among the States aboutthe crown
lands, I have also shown that it was on
that express ground lhat two years afterwards
Virginia declined to exhibit before a Com
mittee of Congress her title to the country on
the East side of the Ohio, which by her first
Act of Cession she required Congress to
guarantee to her, insisting that the resolution
of 1780, in compliance with which she passed
her first aswell as second Act of Cession,
was founded on the very basis that no enqui
ry into the right or tille of any Stale was to
be made. The Committee, on the contrary,
thought lhat case formed an exception lo this
understanding, and that if Virginia required
a guarantee of country which she -did not
cede, that Congress ought lo look into her
title before becoraing responsible for it, —
In the next place; the Virginia act reci
ted in the deed, refers to the proceeding of
Congress of the 13th of September, 1783,
which thus becomes iu law a part also of the
'deed. That proceeding, or Act of Congress,
as il is called ia the Virginia law, was noth
ing more nor less Ihi.n a report of Congress
which has been already presented at large, —
It was a report coming from a Committee of
which Mr. Madison, we have seen, was one,
upon the first Virginia Act of Cession, reject
ing il, and explaining to Virginia the reasons
for not accepting that Act, and selling forth
the terms on which the Confederacy would
accept a cession from that Slate, That re
port re-ilerales and declares what the Dele-
gales of Virginia had before insisted upon
as a basis of a compromise, "lhat by the
Acts of Congress it appears to have been
their intention, which the Committee cannot
but approye, to avoid all discussion of terri
torial rights of individual States, and only to
recommend and accept a cession of their
claims, whatsoeoer they might he, to vacant
territory," The Act of Virginia then goes
on to declare, lhat she passed il in conformi
ty to this recommendatiofl of Congress, In
view of these facts, thus made,by recitals and
references, a part of the deed of Cession, how
is it possible for Virginia to say that Con
gress, by accepting the deed of cession, ad-
milled her title to be good? Might not the
same claim, with equal propriety, be set up in
favor of the Cession of New "York, Massa-

31

•chusetts, frnd Connecticut, who also became
parties to this same compromise, and ceded
their claims in response to the same res-
-olutioris of Congress? The cession of all
put together make one great result— one
vvhole— owe compromise of conflicting preten
sions. It may be further added, thataa the
last Act of Cession refers to the report of
Congress of 1783, to show what motives gov
erned Virginia in passing it, and as that re
port, in its turn, refers in general terms to
the prior acts of Congress on that subject, to
show their intention, the whole body of the
prior proceedings of Congress arc thus, in
fact, -laid open lo our examination, and we
have a right lo look into Ihem all in giving
to the deed of Virginia its legal effect. I
shall hereafter state what the kw of nations
defines a compromise to be. 1 shall, for the
present, assume lhat the Cession of Virginia,
and of the other States, was the result of a
compromise, in which, in accepting the ces
sion, the validity ofthe title of no one ofthe
ceding Slates was admitted, or intended to be
admitted, by the Confederacy; but the con
trary was' expressly declared and under
stood, as one of the terms and conditions of;
the arrangement. It follows from this, that
in all controversies -about the title to t\n
country that was in dispute, (being all West
of the Alleghanies,) we are bound either to
look to this compromise as the origin and ba
sis of the tille, or if not, then we are al liberty
to go back into the prior title, without re
gard to the cession, I have already shown
lhat Virginia had no title prior to lhat lime,
arid will not repe:::t what has been said on
thai subject. In my opinion, the coraproraise
is the foundation ofthe litle, and both parties
are precluded from going back of it lo enquire
into the prior claim. The deed of cession is
10 have a legal effect and operation, accor
ding lo the terms of the compromise, and the
uriderslanding of the parties at the time it
was entered into. Both parties lo the cession
claimed lo own the country on both sides of
the Ohio, Both expressly a,greed that the litle
of neither should be enquired into by the other
— that no decision should be made or opinion
expressed by either as lo the goodness of the
title of the other. That the dispute should
be settled by leaving Virginia in possession
of llie territory On one side of the' Ohio, the
United States taking lhat on the other side
ofthe river. Before that lime, bolh sel up a
claim, but neither had an admitted tille lo
either side of the river. In this view of it,
the title to each side of the river is co-eval
¦with the other. Neither can assert a prior

title, and as the parties then agreed they
would not look into the validity of the title
of either, bolh are bound by the agreement,
and must live by it. If the title on each side
of the river be co-eval, I will show hereaf
ter where the law of nations will fix the
boundary, after having shown what lhat law
defines a compromise to be. — "Compromise
" is a. method of bringing disputes to a peace-
" able termination, Il is an agreement by
"Which, without precisely deciding on the
"justice ofthe -jarring pretensions, the par-
"ties recede on both sides,- and determine
" what share each shall have of the thing in
" dispute, or agree to give it entirely to one
"of the claimants on condition of certain in-
" demnificalions granted to the other," (Vat
tel's Law of Nations, Book 2, Chap, 18, Sec.
327.) The first of the two modes of Compromise
here stated by Vattel describes with perfect
accuracy the condition of the parlies to this
dispute and their manner of settling it. The
Confederacy in its own right and as the
grantee of New York claimed the whole
Country West ofthe Mountains on both sides
of the Ohio, Virginia claimed the same. —
"Without precisely deciding on the justice
of their jarring pretensions the parlies recede
on both sides, and determine n'hat share each
shall have of the thing iu dispute." Where
indeterminate rights are thus rendered definite
and a dispute afterwards arises about Ihem,
common sense and the plainest necessity
dictate lhat both parties must be referred
back lo the Compromise, that is to say, to
the time when the right was rendered defin
ite and no further — to go back of il is to undo
the Compromise, render it a nullity and again
involve the parties in the very difficulty which
it was the aim and end of the compromise to
avoid. Mr, Madison was for a long tirae
earnestly engaged in ' endeavoring lo bririg
about a Compromise of this dangerous dis
pute and the Couutry owes him an infinite
debt of gratitude for his labo-ars in so good a
cause. This is evidenced not merely by his
course in Congress, but the Madison papers,
show that he had it near lo his heart and re
mained in Congress lo effect il. In a letter
to Mr, Edmund Randolph written on the lOlh
of Sept, 1782, he says, "every review I take
of the Western Territory produces fresli
conviction thai it is the true policy of Virgin
ia as well as of the United States to bring the
dispute to a friendly compromise." Il was the
next year terminated in the mode he desired.
The appUcation to this stale of facts ofthe
principle already so fully established that

32

"where a great river is the boundary between
two nations or Stales, if the original property
is in neither, and there be no converition res
pecting it, each hold lo the middle of the
stream" is both easy' and unavoidable,. It, is
also just and equitable, promotirig'the conven
ience of all and doing injury lo none, I will
now bring this long argument lo a conclusion,
by remarking that the channel of the river
iriust have been" understood to be the bounda
ry al the time of the arrangement. One -of
the very first and immeasurably the most im
portant act ever passed by Cyngress rcs'pec
ting the ceded territory puts a practical con
struction on the cession wholly irreconcilea-
' ble with the claim now set up by Virginia to
the whole river. In the celebrated ordinance
of 1787 for the erection of a goy !rnment in
the Territory North West ofthe Ohio, it is
not merely declared, but made an- article of
Compact between the people ofthe Territory
and the people of the United State3,-irrevoca-,
ble except by common, consent, that "the, nav-
" igable waters leading into the Mississippi
" and St. Lawrence. and other carrying pla-
" ces betw een the same, shall be cpmmon kigh-
" ways and forever free, as well, to the inhab-
" ilants of said territory as to the citizens of
" the United States, and - those of a.riy other
" Slates lhat may be admitted, into the Con-
" federacy, without lax, impost or duty there-ri
"for," (1 1. Vol, Laws U,S, 4-79,).
It is plain that ordinance was intended to
embrace the Ohio, , It has always been so un-.
derstood. Men of lender , consciences, and
having constitutional scruples,, have, in these
latter days voted appropriations to 'dear out
and improve the navigation <?f -the Ohio, on
the express ground ttiat this compact had
imposed a duly on Congress and given it a
power over the river, which it, does AOt pos

sess .-over rivers -not embraiied by the ordi
nance. Indeed it is the , principal river in
cluded within the , terms ?'lhe navigable wa
ters., leading , into the Mississippi,'' If the
.Ohio, do in fact belong . exclusively to Vir
ginia, then ic is plain, this compact so .''ar as
that-great river is -concerned is as much a nul
lity, as Ibopgb the ordinance had undertaken
to regulate -the navigslion of the James or
any other river within the admitted territory
of Virginia, . Considering the very great im-*
portance of this regulation, and the care with
¦j which il is inserted into the ordinance, not
as an .ordinary act of legislation merely; but
put, on a ccount .of its weight and consequence,
above all future; repeal or alteration by Con
gress alone, il is not a little remarkable, if
Virginia owned the river, that this ordinance
was reported by a member from Virginia, and
came frora a coraraittee of five, of whom two
were from that Slate, — lhat on its passage
the name of every member from Virginia is
found recorded in favor of il, and indeed of
the whole Congress, with one solitary dis
senting vole from the State of New York,. —
If at that early day,, il had been understood
Virginia owned the whole river, that ordin
ance could not have passed with such extra
ordinary,, uiia-nimity, much less with the en-
lire vole of Virginia for il, I now leave the
case, with a, firra conviction, that the claim
now set up in behalf of Virginia cannot be
maintained — that il is not for, her interest it
should bei^ — that, it would be- of no benefit to
her, and of much injury lo Ohio, and with a
like firm... persuasion that this enlightened
Court will reader a decision accordirig totfie
law of the land, and such as shall best pro-
ijiote the peace, harmony, convenience and
common welfare of the people of both com
munities, .

[The publisher, in justice to Mr. Vinton, deema it proper to- say, that that gentleman has
had no opportunity of reading the proof sheet of this Argument, Great care has been taken
to 'have it free from typographical errors, but it is still possible that some may be/ouad.]