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principle, that revocation of the charter could not ment in the direction west and northwest. That annul vested rights, but what is of conclusive adjustment could not have been upon the boundary weight on this subject, she has the entire benefit of of Pennsylvania ; that was limited to the five dethe fact. She was the crown colony exercising grees of longitude. It could not have been the the political authority contained in her charter, with line of New York proper, for that had the norththe knowledge of the crown, over the territory de- ern line of Pennsylvania and its southwestern corner scribed in that instrument. She was the colony de rested on Lake Erie. It could not have been in facto of all this territory from 1624, limited as de virtue of the treaty of Fort Stanwix in 1768 for scribed. She was the colony de jure, by the as- that was a conveyance to the crown and not to Neu sent of the crown, to her unintermitted claim and York. It only extended to the south side of the virtual possession through one hundred and fifty Ohio. What title covered the northwest of that years.
river ? July, 1775. The history of colonial dependence What then is the title of Virginia ! The disis past; the committee of public safety is appoint-covery of the Cabots; the charter of 1609 ; the ed; the military force is organized; the oath is partial description as contained in the leasehold of taken“ in defense of the just rights of America Culpeper ; the acknowledgment by France in the against all enemies whatsoever,” subject only to treaty of Uırecht; the grant of the Six Nations the “ general convention or General Assembly of at Lancaster ; the confirmation thereof at LoggsVirginia," and this is in July, 1775, styled in the town; the treaty of 1763 ; the constant legislarecords of Virginia the “ Interregnum."45 A con- tion of the colony; the actual granting and seating vention is called to meet on the first Monday of of lands to 1775, the era of Virginia independence; May, and on the 29th of June, 1776, it was sol- the military possession of the country by the coloemnly declared by that convention, that “the gov- ny in 1774; the assertion of boundaries in the Conernment of this country as formerly exercised under stitution of June, 1776 ; the military and political the crown of Great Britain is totally dissolved.” possession of it by Virginia in pursuance of her A new government was by the same act organized unintermitted claim to the close of the war of the and its boundaries defined and the authority of the revolution; and lastly the treaty of 1783 which independent State of Virginia succeeded by her confirmed the colonies in their ancient boundaries. own sovereign act to all the rights of the colony, But the authority of international law has been whether de facto or de jure, as against the crown. invoked in the controversy.46 The law is good as Virginia was independent with a constitutional a moral regulation and as a rule of construction. boundary embracing all territory contained in her The practice and the policy of nations have estabcharter, east of the Mississippi, and excepting lished a different doctrine, that doctrine by which the Carolina, Maryland and Pennsylvania. She was United States held and holds Oregon without actual in possession of the territory by her settlers, her occupation; by which Russia held Siberia and holds arms and her laws. She had thrown off the al- N.Western America, and Mexico the unsettled Cal. legiance of England and in throwing that off her afornias; by which England holds Australia and the Convention defined the soil which she claimed unexplored portions of Canada. There is not a comagainst the crown and against the world. The de. mercial country, and scarcely any other of any erclaration of independence by the colonies was made tent and enterprise, which does not hold territory more than a year after the actual independence of under the same title and tenure. The rule of the Virginia. Her title by Revolution dates back 10 common-law, which is in accordance with the practhe time when she commenced the exercise of her tice of nations, is consistent with this usage. sovereign powers. Virginia in her new State ca
Where a nation has a definite claim by parallels of pacity took military possession of the northwest- latitude or natural boundaries, and takes
possession ern country and erected it into the county of Illi- of a part, with such public acts and avowals as to nois : she kept military possession of it and the announce a clear intent to maintain the right to the peace of 1783 found her the sole occupant of its whole and has the capacity to appropriate and the wide domain. Did that Peace acknowledge the ability to defend the same, the right follows the independence of a nation, or the freedom of con
possession. Nor are nations, any more than iodifederated States ? The former has never been viduals, confined to immediate and pressing wants. pretended and it is a fallacy to suppose for a mo
The wants of posterity cannot be limited by any ment, that in fixing the boundaries of colonies, in practical rule, and hence the claim, the conflict and concluding the terms of that peace, that the limits the success has been, perhaps yet is, the law of of Virginia, as defined by her charter and the title over newly discovered countries. But the autreaty of 1763, as described by English historians, thorities cited are more conclusive against French, laid down by English geographers and as fixed by
than English title. England claimed by rigbt of her constitution, were not the elements of adjust- discovery; this right was recognized by our high
45 9 Hen. 13, 36, 49, 96, 101.
46 Vat. B. 1, c. 18.sec. 203 204 205 206 and n. to 107.
est judicial tribunal as applying to this very terri- | tic ocean, it can by no rule of construction militate tory (Johnson o. McIntosh) :*7 the colonies were against the present claims of the United States. founded on that right; their existence springs up That proclamation, as is clear both from the title out of it; they had no domain, except on the sea- and tenor of it, was intended merely to prevent shore, but by virtue of the recognition of this right; disputes with the Indians and an irregular approeach sustained the right of the other; they were priation of vacant land to individuals; and by no colerminous proprietors under the same authority means either to renounce any parts of the cessions to grant and, they, at best, cannot except to the made in the treaty of Paris, or to affect the bountitle. But discovery gives an inchoate right;48 how daries established by the ancient charters." 49 far that right is made perfect in the longitude In chronological order we now arrive at the of an extensive country by actual occupancy of all claim of New York under the treaty of Fort Stanthe degrees of coast, which would embrace the wix. It might be sufficient for Virginia to rest country in dispute by parallels extended from the upon the treaties of Lancaster, 1744, and Loggsextreme points of latitude 80 possessed, back, it town, 1752, to show that whatever title the six nais needless to enquire under the circumstances of tions had was conveyed to her in her colonial cathis case. England had the right which discovery pacity. It is, however, only necessary to enquire gives and such possession gave. In the execution into the character of the agent of the crown and of that right, always insisted upon by her, always the instrument executed to see what litle New vindicated by the colony representing her author- York took by this treaty. Sir William Johnson ity; at all times recognized by the other colonies, was general agent and superintendant of Indian (as Pennsylvania when she advised the building of affairs; the deed conveys "unto our sovereign lord, a fort on Lake Erie,) England resisted the actual King George III., all that tract of land situate in possession of the country by France. Neither in North America,” &c. Is this a conveyance to fact nor in virtue of the abstract law, nor in the New York? Is this a transference or creation of practice of nations, had France acquired the emi- jurisdiction? Does this extinguishment of Indian nent domain. The inchoate right of England was title and investiture of the same in the crown consuch as she could have granted; it was such as Iract Virginia to the top of the mountains and exshe could hold under the usage of nations, until her lend New York beyond the intervening State of necessilies required a more immediate use of the Pennsylvania from the mouth of the Cherokee soil. It was such as she could have created into a (Tennessee) along the south side of the Ohio to separate jurisdiction, or which, by the very force of Fort Pilt? There are no facts to justify such conall analagous principles, as well as by legislative clusion, and imaginatiou is feculant when it sup“ dilatation," would fall in as appartenant to the plies such necessary and important data. The comprehensive jurisdiction already established by most elaborate investigation by the ablest counsel, and through ber. And the proclamation of 1763, in the great case of Johnson v. McIntosh, sustained settling the new order of things on this continent, the title, by discovery and the right by colonization Bo found, and so left it.
and rejected all claim acquired merely by purchase The royal proclamation of 1763 inhibiting the of the Indian title. The title through Virginia grant of western lands, is relied upon by the oppo- was maintained by this judicial decision. But still nents of Virginia as confining Virginia to the more conclusive is the fact that the fort Stanwix deed heights of the Alleganies. It has already been does not convey any portion of the territory northshown that the military bounty lands of 1756 were west of the Ohio. The boundary is from "the granted by royal proclamation, from Wheeling mouth of Cherokee river along the south side of creek to the Kanawha. This writer knows land the Ohio to Fort Pitt" and thence east-relinquishin the county of Ohio beld under military warrant ing Indian title of Western Virginia (if any exof George III. in 1774. These inhibitions were isteds) not to New York, but directly to the crown: mere matters of internal police, and the references George III., by his proclamation granting military mnade in this article will show that they were adup- bounties to the officers and soldiers of Virginia for led at various periods by the colony herself. But their services and gallantry in the war of 1756, rethe argument is an old refuted Spanish pretension, cognized this as Virginia. The title of Virginia now onworthy the use of any one who has any was again confirmed by the treaty of Fort Stanwix respect for the wisdom and the history of the past. a second time and by the proclamation of the king li was met by Congress in 1780“ in answer to the by which the soldiers and officers of Virginia were extraordinary claim of the Spanish Court” and made the free possessors and defenders of the soil. promptly refated. “As to the proclamation of the Extinguishment of Indian title no more affected King of Great Britain of 1763 forbidding his gov- the rights and jurisdiction of the colonies, than the eroors in North America to grant lands westward thousand treaties with the lodians since affect the of the sources of the rivers falling into the Atlan- boundaries of States or destroy their jurisdictions
+92 Pitk. 514. * Vat. B. 1, c. 18, sec. 207.
60 Treaties of Lancaster and Loggstown.
678 Wbeat, 543.
the very reverse of which is truth. This is in-, Virginia title. At the Treaty of Peace, England deed making "assurance doubly sure." Jew, I thank did not claim it as a fixed boundary, or if she did, thee.
it was not allowed her and there was no argument This view is strengthened by the act of the to resist her claim except what arose out of the British parliament of the 22nd June, 1774, and the title of Virginia. And it is remarkable, that the circumstances preceding, accompanying and suc- Fort Stanwix deed, if it availed to any purpose, ceeding that act.51 The colonies were at the time would have availed to maintain the English title in a state of actual revolt; Dunmore was Governor under that deed mad to George III. of Virginia and England had already commenced This sufficiently disposes of the pretensed title her war policy. This very act of parliament was of New York. The title of Connecticut is more pressed by the ministry as a leading measure for readily settled by the proviso in her charler prethe suppression of the spirit and power of the colo- cluding any encroachment on the southern or Virnies. It was the supreme act of the parliament, ginia colony, or upon lands then in the possession indicating the lead to further encroachments of the of any other christian nation lying west of the rights of the colonies. The Indian war which Plymouth colony, 1661: New York charter 1664; brought on the battle of Point Pleasant in the fall Pennsylvania 1671, and their conflict was settled by of that year was believed to have been provoked the boundary, run by royal commissioners in 1684, by Dunmore with a design to favor England and and which was assented to by all parties. Pennhostile to Virginia. He was suspected of treachery sylvania was limited by her five degrees of longiat the battle and he did not wipe away the imputa- tude. New York, still beyond, had no title except tion by his subsequent conduct. He fomented to her grant bounded by the northern line of Pennboundary difficulties between Virginia and Penn- sylvania; beyond this again was Connecticut with sylvania. An instrument of disorganization be- her royal and agreed boundary: and beyond this tween the States and a promoter of savage hos- Massachusetts, limited alike by the colonial policy tility on the frontiers, he but executed the purposes of the day and the inferential exclusion of Virginia's of the act of parliament in separating the North original charter and the grants to Connecticut, western Territory from Virginia and attaching it New York and Pennsylvania. Thus is palsied the to Quebec, then the only loyal colony on the con- hand that would tear the chaplet from the brow of tinent. That which had theretofore been done by the Mother Of States. proclamation of the king it now required the act of In justice to Virginia let it be remembered, that by parliament to consummate; to alter the boundary and the twenty-first section of her constitution of 1776, take the territory of a colony which had the sanc- in which she fixes her boundaries, she says, what tion of one hundred and fifty years of historical they are and shall be, " unless by act of Legislaand legal prescription. Dunmore's policy was the ture one or more territories shall hereafter be laid most likely to effectuate the purposes of the crown off and governments established west of the Alleand the natural explanation of his conduct is, that gany mountains." Virginia provided for the ereeit was the policy to embroil Virginia in a war with tion of States before the confederation existed, the Indians, and then, should the difficulties of the and when there was no motive but liberal and encolonies with England terminate in hostilities, Vir- larged views of policy; and without ibis provision, ginia would be fully occupied on her front and the the cession of 1783 might possibly have been ingreat domain of the north-west would be in the valid as exceeding legislative authority. In the occupation of his majesty's allies, for the purposes subsequent discussions which occurred in relation of war--for the purposes of peace when the struggle to territory it is clearly seen that the remonstrance was over and the possession of these allies would of Maryland was not founded in objection to the give force to the claim of uti possidetis. The ex- right of Virginia, but it was, for that, “this or any pedition of Gen. George Rogers Clarke was the other state entering into such confederation should vindication of the Virginia claim to the full extent be burthened with heavy expenses for the subdoing of her ancient limits. The act of the 20th June, and guaranteeing immense tracts of country when 1774, is the first attempt of the crown or parlia- they are not to share any part of the monies ment, for more than one hundred years, to inter- arising from the sales of lands within those tracts fere with the boundaries of this colony; and this or be otherwise benefited thereby.” This was the was done upon the prospect of civil war, and when burthen of the song, the echo of which is caught it was desirable on the part of England to attach up from that distant time and made to reverberate the territory in question to the only colony on whose yet a little longer. But the complaint of Maryland fidelity she could rely. The long acquiescence in was connected with an unwarrantable demand, rethe claim of Virginia and the attempt to snatch it quiring full power to be given to the confederation from her possession on the eve of a war, gives force to fix the western limits of Virginia,” and it was to all the facts and presumptions in favor of the accompanied by the declaration of an inadmissible
51 Am. Ar. 4 series, vol. 1, p. 213, 214, 215.
5* Hubard's Rep. 30; Rev. Saml. Peter's His.of Con. 98.
principle, “that Congress could exercise jurisdic- Virginia owned no territory north-west of the tion in territorial controversies between States."53 Ohio. Similar legal consequences will arise from The remonstrance of Virginia was predicated on this view of the question (being the first occupant this state of things, and the impartial critic con- on the south-western side) in part, which arises necting the powers claimed for Congress with the from the fact, that she did own and conveyed the position taken by Virginia jo her remonstrance and territory 10 the north-west of that river. Then, with subsequent events, will see on the part of Vir- were the assumption true, the cession by Virginia ginia the dawn of those principles which, under the was merely nugatory and the respective States guidance of that commonwealth, have been the stand upon their international rights. The intergreat conservative elements of Constitutional Free- national right of the dominant, or shore first posdom. The fact contemplated was but little less sessed, is founded on the principle which formerly objectionable than the principles involved, viz: to gave dominion on the sea.coast over all within cortail the western limits of the state indefinitely cannon-range. on the south-eastern side of the Ohio. Virginia The enlightened decision of later publicists give had provided by her organic law, before the cu- this law more exactness and free it from doubt pidity or jealousy of the smaller States had been and disputation. Vattel, B. 1, c. xxii, sec. 1, excited, for the “establishment of governments says, “When a nation takes possession of a west of the Allegany mountains,” but this question country, terminated by a river, it is considered of cortailment mooted, and Virginia, willing to con- as also appropriating the river to itself; for a river sommate her great constitutional purpose in the is of such great use, that it is to be presumed the erection of new States, desired, against the senti- nation intended to reserve it to itself. Consement which the smaller States had manifested, to quently the nation which first established its dobe secored against the future, by the act of that minion on one of the banks of the river is considpower which it was sought to make the instrument ered as being the first possessor of all that part of of her dismemberment. There is a physical and the river which te nates its territory. This prea high political relation throughout her domain sumption is indubitable when it relates to a river from the ocean to the Ohio, which had early been that is extremely large or at least for a part of its perceived and always insisted upon and prosecuted length; and the strength of the presumption inby Washington, and this integrity of dominion and creases or diminishes in an inverse ratio with the dependence of interest she desired and was deter- largeness (size ?) of the river, for the more the mined to maintain. Virginia did not doubt her own river is confined the more does the safety and contitle ; but she mistrusted the temper of the times, venience of its use require that it should be subthat in the storm of a revolution could turn from ject entirely to the empire and property of that nalofty purpose to "calculate the value” of the con- tion.” The presumption of appropriation " is indufederation and evince the sentiment, which in these bitable when it relates to a river that is extremely days is so strongly individualized,
large,” aad that presumption becomes conclusive in
the inverse ratio of the size of the stream. Trace " Let me, if not by birth, have lands by wit;
it down the stream and it is lost in the expanse of All with me's meet, that I can fashion fit."
the ocean, where all nations meet on this great The historical review is now closed; nations are common of Nature; trace it up and the exclusive spread over the immense domain which was ac- appropriation is narrowed down until an individual quired by the gallantry and sagacity of former of the nation, appropriating the stream to his pertimes; and in vindicating Virginia, it is not intend-sonal uses, holds it against the world. The further ed to do injustice to other States. In purpose and shore of the Ohio being within close cannon-shot ; in conduct the colonists and revolutionists of every the full use of the river being important and the State, stand preëminent and upon their national control of the further shore necessary for the promonument, the record of their thought and action tection of the dominant shore in various ways, as is inscribed indelibly,
to prevent artificial deflections of the current, &c.;
the right to its whole breadth for defence; the right sciple of appropriation, but it is a well-defined role to fix the furthest boundary on which the cannon of construction, as at common law, the same term of an armed neutral, or the strategy of a servile not uofrequently describes the estate conveyed and fne can be executed, are strictly within the rule and defines the right retained. Here is a nataral boonthe reason of the law.
dary; a boundary known to and described by the The law is well settled that the river belongs to supreme law of the case. If that natural boundary the nation first taking and holding possession of be a well-described forest and one grantor conone of its banks; then what is the river? “So a veys all beyond that forest, is any part of the forriver concludes and separates different countries ; est conveyed? If it be a desert, having a certain line not in its vulgar notion as a bulk of water gathered of demarcation, and all beyond that line is confrom certain fountains and rivulets and from other veyed, does any part of the desert pass ? A role streams of note and size and then distinguished by of international law is established-written upon a particular name, but as it is in such a channel the great statute book of nature and copied into and hath such banks to encompass and confine it" 54 the leaves of human jurisprudence, and a convey. This authority corroborates the law of appropria- ance is made following the terms of that rule, can tion of “the river” and defines what it is. An- the rule be changed and the grant enlarged against other distinguished publicist gives a further and the individual or the nation so making the grant ! more exact definition of the term. “A river, di- There is no equity in the subsequent inconvenience viding territories, is not to be considered barely so of parties, there is no legal construction of grants much water, but as water flowing in a particular arising out of new relations between the same, or, channel and enclosed within certain banks." 65 as in this case, between other parties, which cao re
Thus “the river dividing territories,” is defined. peal the ancient rule and create a new conveyance. Then what does the first occupier of the territory for the original grantor. The role as described is on the bank of the river take under the law from not only good as positive law, but it is true as the Vattel ? The river and all that nstitutes the river; doctrine of construction. Then, by the law, Virall that is necessary to protect the territory occu- ginia took the waler, the bed and the banks. Then pied and every valuable franchise connected with to elucidate a proposition so clear by a hibernicism, the appropriated water, necessary for the use of she retains these if she did not give them away. the citizen; the protection of the stream itself and The territory "to the north-west of the Ohio river" the shore and the defence of the State. The law was conveyed. Did this give away the river. of nations has not overlooked these details of this By the positive law of nations the river was, the important doctrine of appropriation ;56 the current territory of Virginia—the river as defined by that of water may not be injuriously diverted; the law, and in the deed of cession there is no lancourse of the stream may not be changed, nor its guage which covers a single thread of its waters flow or the navigation upon it be impeded. The or a pebble of its banks. conclusion of such appropriation is in inverse ratio But there is a striking coincidence between the with the decrease of the size of the stream, in international law and what was then and for mang creasing the stringency of the rule in its applica- years afterwards continued to be the public policy tion to the Ohio and brings it wilhin the rigid defi- of Virginia. By her act of May, 1780, she prenition and control of the Mare Clausum.67 vented the appropriation of any of the shores of
This control is perfect and absolute as if it were her eastern waters, and in 1801 extended the inin the very centre of empire. Så
hibition to the western rivers. This was a settled This is the public law of rivers. The term river idea of her policy maintained through sixty years. is clearly defined—the water, the bed and the Then by what fact or principle is the line of bounbanks. Then in appropriating the river, under the dary to be settled? The international law is conlaw, what is taken-the water, the bed and the closive; the policy of Virginia was equally deterbanks. Virginia, as first possessor of the south- minate, that the shores of her navigable streams eastern shore, was entitled to all these. If her deed and great public rivers should not be appropriated, of cession in 1783 was nugatory, she is still enti- and a fortiori, she did not intend to convey them tled to all contained in the definition of " the river" to the citizens of other States. The same princiand all the legal rights and easements flowing there. ple of domestic policy which required the protecfrom by virtue of her first possession. But this tion of the one, required the reservation of the rule of international law is not only a settled prin other. Add to these considerations of domestic
police those multifarious reasons of public policy 54 Puff. L. N. and N. 187.
which constitute the reasonableness and common 55 1 Grotius 284.
sense of the international law, and construe the 56 Vat. B. I, c, xxii., Secs 271, 272.
cession of Virginia. If these are the true princi57 Id., sec. 273.
ples of construction, then the criticism of the case 68 Vat., B. I, c. XX. sec. 245; c, xxi, sec. 278. Wolfius, of Handly's Lessee v. Anthony is well taken and Jus. Nat. et Gen; cap. 5.
Bink. de Dom. Mar., cap. 4. that decision, in the latitude, claimed for it, contra