USA > West Virginia > History of West Virginia > Part 18
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But the authority of international law has been in- voked in the controversy. (Vattel, B. I., c. 18, Sec. 203, 204, 205, 206, and n. to 207.) The law is good as a moral regulation and as a rule of construction. The practice and the policy of nations have established a different doctrine, that doctrine by which the United States held and holds Oregon without actual occupa- tion ; by which Russia held Siberia and holds North- western America, and Mexico the unsettled Califor- nias; by which England holds Australia and the unex- plored portions of Canada. There is not a commercial country, and scarcely any other of any extent and enterprise, which does not hold territory under the same title and tenure. The rule of the common law, which is in accordance with the practice of nations, is consistent with this usage. Where a nation has a defi- nite claim by parallels of latitude or natural boundaries, and takes possession of a part, with such public acts
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and avowals as to announce a clear intent to maintain the right to the whole, and has the capacity to appro- priate and the ability to defend the same, the right follows the possession. Nor are nations, any more than individuals, confined to immediate and pressing wants. The wants of posterity cannot be limited by any practical rule, and hence the claim, the conflict and the success has been, perhaps yet is, the law of title over newly discovered countries. But the authorities cited are more conclusive against French than English title. England claimed by right of discovery ; this right was recognized by our highest judicial tribunal as applying to this very territory-Johnson vs. McIntosh (8 Wheat. 543.) The colonies were founded on that right ; their existence springs up out of it; they had no domain, except on the seashore, but by virtue of the recognition of this right; each sustained the right of the other ; they were coterminous proprietors under the same authority to grant, and they, at best, cannot except the title. But discovery gives an inchoate right (Vattel, B. I, c. 18, sec. 207) ; how far that right is made perfect in the longitude of an extensive coun- try by actual occupancy of all the degrees of coast, which would embrace the country in dispute by paral- lels extended from the extreme points of latitude so possessed, back, it is needless to inquire under the circumstances of this case. England had the right which discovery gives and such possession gave. In the execution of that right, always insisted upon by her, always vindicated by the colony representing her authority, at all times recognized by the other colo- nies,-as Pennsylvania when she advised the building of a fort on Lake Erie,-England resisted actual pos-
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session of the country by France; neither in fact, nor in virtue of the abstract law, nor in the practice of nations, had France acquired the eminent domain. The in- choate right of England was such as she could have granted ; it was such as she could hold under the usage of nations, until her necessities required a more immediate use of the soil. It was such as she could have created into a separate jurisdiction, or which, by the very force of all analogous principles, as well as by legislative " dilatation," would fall in as appurtenant to the comprehensive jurisdiction already established by and through her. And the proclamation of 1763, set- tling the new order of things on this continent, so found and so left it.
The royal proclamation of 1763, inhibiting the grant of Western lands, is relied upon by the opponents of Virginia as confirming Virginia to the heights of the Alleghenies. It has already been shown that the mili- tary bounty lands of 1756 were granted by royal proc- lamation, from Wheeling creek to the Kanawha. This writer knows lands in the county of Ohio held under military warrant of George III. in 1774. These inhi- bitions were mere matters of internal police, and the references made in this article will show that they were adopted at various periods by the colony herself. But the argument is an old refuted Spanish pretension, now unworthy the use of any one who has any respect for the wisdom and the history of the past. It was met by Congress in 1780, "in answer to the extraordinary claim of the Spanish Court," and promptly refuted. "As to the proclamation of the king of Great Britain of 1763, forbidding his governors in North America to grant lands westward of the sources of the rivers fall-
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ing into the Atlantic ocean, it can by no rule of con- struction militate against the present claims of the United States. That proclamation, as is clear both from the title and tenor of it, was intended merely to prevent disputes with the Indians and an irregular · appropriation of vacant lands to individuals ; and by no means either to renounce any parts of the cessions made by the treaty of Paris, or to effect the boundaries established by the ancient charters." (2 Pitk. 514.)
In chronological order we now arrive at the claim of New York under the treaty of Fort Stanwix. It might be sufficient for Virginia to rest upon the treaties of Lancaster, 1744, and Loggstown, 1752, to show that whatever title the Six Nations had was conveyed to her in her colonial capacity. It is, however, only necessary to inquire into the character of the agent of the crown and the instrument executed to see what title New York took by this treaty. Sir William Johnson was general agent and superintendent of Indian affairs. The deed conveys "unto our sovereign lord, King George III., all that tract of land situate in North America," etc. Is this a conveyance to New York ? Is this a transference or creation of jurisdiction ? Does this extinguishment of Indian title and investment of the same in the crown contract Virginia to the top of the mountains and extend New York beyond the intervening State of Pennsylva- nia from the mouth of the Cherokee-Tennessee- along the south side of the Ohio to Fort Pitt? There are no facts to justify such conclusion, and imagination is feculent when it supplies such necessary and import- ant data. The most elaborate investigation by the ablest counsel, in the great caseof Johnson &s. McIntosh, sustained the title, by discovery and the right by colo-
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nization, and rejected all claim acquired merely by pur- chase of the Indian title. The title through Virginia was maintained by this judicial decision. But still more conclusive is the fact that the Fort Stanwix deed does not convey any portion of the territory northwest of the Ohio. The boundary is from "the mouth of Cherokee river along the south side of the Ohio to Fort Pitt," and thence east-relinquishing Indian title of Western Vir- ginia, if any existed, not to New York, but directly to the crown ; George III., by his proclamation granting military bounties to the officers and soldiers of Virginia for their services and gallantry in the war of 1756, recog-
nized this as Virginia. The title of Virginia was again confirmed by the treaty of Fort Stanwix a second time and by the proclamation of the king by which the sol- diers and officers of Virginia were made the free pos- sessors and defenders of the soil. Extinguishment of Indian title no more affected the rights and jurisdiction of the colonies than the thousand treaties with the Indians since affect the boundaries of States or destroy their jurisdictions-the very reverse of which is truth. This is indeed making "assurance doubly sure." Jew, I thank thee.
This view is strengthened by the act of the British Parliament of the 22d June, 1774, and the circumstances preceding, accompanying and succeeding that act (Am. Ar., 4 series, vol. 1, pp. 213, 214, 215). The colonies were at the time in a state of actual revolt. Dunmore was governor of Virginia, and England had already commenced her war policy. This very act of Parlia- ment was pressed by the ministry as a leading measure for the suppression of the spirit and power of the colo- nies. It was the supreme act of the Parliament, indi-
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cating the lead to further encroachments of the rights of the colonies. The Indian war which brought on the battle of Point Pleasant in the fall of that year was believed to have been provoked by Dunmore with a design to favor England and hostile to Virginia. He was suspected of treachery at the battle, and he did not wipe away the imputation by his subsequent conduct. He fomented boundary difficulties between Virginia and Pennsylvania. An instrument of disorganization be- tween the States and a promoter of savage hostility on the frontiers, he but executed the purposes of the act of Parliament in separating the northwestern territory from Virginia and attaching it to Quebec, then the only loyal colony on the continent. That which had there- tofore been done by proclamation of the king it now required the act of Parliament to consummate; to alter the boundary and take the territory of a colony which had the sanction of one hundred and fifty years of his- torical and legal prescription. Dunmore's policy was the most likely to effectuate the purposes of the crown, and the natural explanation of his conduct is, that it was the policy to embroil Virginia in a war with the Indians, and then, should the difficulties of the colonies with England terminate in hostilities, Virginia would be fully occupied on her front and the great domain of the northwest would be in the occupation of his majesty's allies, for the purpose of war-for the purposes of peace when the struggle was over, and the possession of these allies would give force to the claim of uti possidetis. The expedition of General George Rogers Clarke was the vindication of the Virginia claim to the full extent of her ancient limits. The act of the 20th June, 1774, is the first attempt of the crown or Par-
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liament, for more than one hundred years, to inter- fere with the boundaries of this colony ; and this was done upon the prospect of civil war, and when it was desirable on the part of England to attach the terri- tory in question to the only colony on whose fidelity she could rely. The long acquiescence in the claim of Virginia and the attempt to snatch it from her possession on the eve of war, gives force to all the facts and presumptions in favor of the Virginia title. At the treaty of peace, England did not claim it as a fixed boundary, or if she did, it was not allowed her, and there was no argument to resist her claim except what arose out of the title of Virginia. And it is remarkable that the Fort Stanwix deed, if it availed to any purpose, would have availed to maintain the Eng- lish title under that deed made to George III.
This sufficiently disposes of the pretended title of New York. The title of Connecticut is more readily settled by the proviso in her charter precluding any encroach- ment on the southern or Virginia colony, or upon lands then in the possession of any other Christian nation lying west of the Plymouth colony, 1661 ; New York charter, 1664; Pennsylvania, 1681, and their conflict ' was settled by the boundary run by royal commissioners in 1684, and which was assented to by all parties (Hub- bard's Rep. 30; Rev. Saml. Peter's Hist. of Conn.). Pennsylvania was limited by her five degrees of longi- tude. New York, still beyond, had no title except to her grant bounded by the northern line of Pennsylva- nia ; beyond this again was Connecticut with her royal and agreed boundary ; and beyond this Massachusetts, limited alike by the colonial policy of the day and the inferential exclusion of Virginia's original charter and
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the grants to Connecticut, New York and Pennsylvania. Thus is palsied the hand that would tear the chaplet from the brow of the Mother of States.
In justice to Virginia let it be remembered, that by the twenty-first section of her Constitution of 1776, in which she fixes her boundaries, she says what they are and shall be, " unless by act of Legislature one or more territories shall hereafter be laid off and governments established west of the Alleghenies." Virginia pro- vided for the erection of States before the confedera- tion existed, and when there was no motive but liberal and enlarged views of policy; and without this pro- vision the cession of 1783 might possibly have been invalid as exceeding legislative authority. In the sub- sequent discussions which occurred in relation to terri- tory, it is clearly seen that the remonstrance of Mary- land was not founded in objection to the right of Virginia, but it was, for that, " this or any other State entering into such . confederation should be burthened with heavy expenses for the subduing and guarantee- ing immense tracts of country, when they are not to share any part of the moneys arising from the sale of lands within those tracts or be otherwise benefited thereby." This was the burthen of the song, the echo of which is caught up from that distant time and made to reverberate yet a little longer. But the complaint of Maryland was connected with an unwarrantable demand, requiring full power to be given to the con- federation " to fix the western limits of Virginia," and it was accompanied by the declaration of an inadmis- sible principle, " that Congress could exercise jurisdic- tion in territorial controversies between States." (Madi- son's Remonstrance, State Department.) The remon-
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strance of Virginia was predicated on this state of things, and the impartial critic connecting the powers claimed for Congress with the position taken by Vir- ginia in her remonstrance and with subsequent events, will see on the part of Virginia the dawn of those prin- ciples which, under the guidance of that common- wealth, have been the great conservative elements of Constitutional Freedom. The fact contemplated was but little less objectionable than the principles involved, viz. : to curtail the western limits of the State indefi- nitely on the southeastern side of the Ohio. Virginia had provided by her organic law, before the cupidity or jealousy of the smaller States had been excited, for the "establishment of governments west of the Alle- ghenies," but this question of curtailment mooted, and Virginia, willing to consummate her great constitutional purpose in the erection of new States, desired, against the sentiment which the smaller States had manifested, to be secured against the future by the act of that power which it was sought to make the instrument of her dismembership. There is a physical and a high political relation throughout her domain from the ocean to the Ohio which had early been perceived and always insisted upon and prosecuted by Washington, and this integrity of dominion and dependence of interest she desired and was determined to maintain. Virginia did not doubt her own title ; but she mistrusted the temper of the times, that in the storm of a revolution could turn from lofty purposes to " calculate the value " of the confederation and evince the sentiment which in these days is so strongly individualized :-
" Let me, if not by birth, have lands by wit ; All with me's meet, that I can fashion fit."
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The historical review is now closed ; nations are spread over the immense domain which was acquired by the gallantry and sagacity of former times ; and in vindicating Virginia, it is not intended to do injustice to other States. In purpose and in conduct the colo- nists and revolutionists of every State stand preeminent, and upon their national monument, the record of their thought and action, is inscribed indelibly,
" Fortia facta patrum, series longissima rerum Per tot ducta viros antiqua ab origine gentis."
BOUNDARY AND JURISDICTION.
Having now thoroughly established the title of Vir- ginia, the consideration of the questions of boundary and jurisdiction between her and Ohio are naturally presented. But it has been assumed that Virginia owned no territory northwest of the Ohio. Similar legal consequences will arise from this view of the question-being the first occupant on the southwestern side-in part, which arises from the fact that she did own and conveyed the territory to the northwest of that river. Then, were the assumption true, the ces- sion by Virginia was merely nugatory and the respect- ive States stand upon their international rights. The international right of the dominant, or shore first pos- sessed, is founded on the principle which formerly gave dominion on the seacoast over all within cannon range.
The enlightened decisions of later publicists give this law more exactness and free it from doubt and dispu- tation. Vattel, B. I, c. XXII., sec. I, says: “ When a nation takes possession of a country terminated by a river, it is considered as also appropriating the river to itself; for a river is of such great use that it is to be pre-
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sumed the nation intended to reserve it to itself. Con- sequently, the nation which first established its domin- ion on one of the banks of the river is considered as being the first possessor of all that part of the river which terminates its territory. This presumption is indubitable when it relates to a river that is extremely large, or, at least, for a part of its length; and the strength of the presumption increases or diminishes in an inverse ratio with the largeness-size ?- of the river, for the more the river is confined the more does the safety and convenience of its use require that it should be subject entirely to the empire and property of that nation." The presumption of appropriation "is indubitable when it relates to a river that is ex- tremely large," and that presumption becomes con- clusive in the inverse ratio of the size of the stream. Trace it down the stream and it is lost in the expanse of the ocean, where all nations meet on this great common of Nature; trace it up and the exclusive appropriation is narrowed down until an individual of the nation, appropriating the stream to his personal uses, holds it against the world. The further shore of the Ohio being within close cannon-shot ; the full use of the river being important and the control of the further shore necessary for the protection of the dominant shore in various ways, as to prevent arti- ficial deflections of the current, etc .; the right to its whole breadth for defence ; the right to fix the furthest boundary on which the cannon of an armed neutral, or the strategy of a servile foe can be executed, are strictly within the rule and the reason of the law.
The law is well settled that the river belongs to the nation first taking and holding possession of one of its
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banks; then what is the river ? So a river concludes and separates different countries ; not in its vulgar notion as a bulk of water gathered from certain foun- tains and rivulets and from other streams of note and size and then distinguished by a particular name, but as it is in such a channel and hath such banks to 'encom- pass and confine it" (Puff., L. N. and N., 187). This authority corroborates the law of appropriation of " the river" and defines what it is. Another distinguished publicist gives a further and more exact definition of the term. "A river, dividing territories, is not to be considered barely so much water flowing in a particular channel and enclosed within certain banks " (I Grotius, 284).
Thus "the river dividing territories" is defined. Then what does the first occupier of the territory on the bank of the river take under the law from Vattel ? The river and all that constitutes the river ; all that is necessary to protect the territory occupied and every valuable franchise connected with the appropriated water, necessary for the use of the citizen; the pro- tection of the stream itself and the shore and the defence of the State. The law of nations has not over- looked these details of this important doctrine of appro- priation (Vattel, B. I., c. XXII., secs. 271, 272) ; the current of water may not be injuriously diverted ; the course of the stream may not be changed, nor its flow or the navigation upon it impeded. The conclusion of such appropriation is in inverse ratio with the decrease of the size of the stream, increasing the stringency of the rule in its application to the Ohio and brings it within the rigid definition and control of the Mare Clausum (Id., sec. 275).
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This control is perfect and absolute as if it were in the very centre of empire (Vattel, B. I., c. xx., sec. 245 ; c. XXI., sec. 278; Wolfius, Jus. Nat. et Gen., cap. 5 ; Bink. de Dom. Mar., cap. 4).
This is the public law of rivers. The term river is clearly defined-the water, the bed and the banks. Then in appropriating the river, under the law, what is taken ?- the water, the bed and the banks. Virginia, as first possessor of the southeastern shore, was entitled to all these. If her deed of cession in 1783 was nuga- tory, she is still entitled to all contained in the definition of "the river," and all the legal rights and easements following therefrom by virtue of her first possession. But this rule of international law is not only a settled principle of appropriation, but it is a well-defined rule of construction, as at common law the same term not unfrequently describes the estate conveyed and defines the right retained. Here is a natural boundary; a boundary known to and described by the supreme law of the case. If that natural boundary be a well-described forest and one grantor conveys all beyond that forest, is any part of the forest conveyed ? If it be a desert, having a certain line of demarcation, and all beyond that line is conveyed, does any part of the desert pass ? A rule of international law is established-written upon the great statute book of nature and copied into the leaves of human jurisprudence-and a conveyance is made following the terms of that rule, can the rule be changed and the grant enlarged against the individual or the nation so making the grant? There is no equity in the subsequent inconvenience of parties, there is no legal construction of grants arising out of new relations between the same, or, as in this case, between other
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parties, which can repeal the ancient rule and create a new conveyance for the original grantor. The rule as described is not only good as positive law, but it is . true as the doctrine of construction. Then, by the law, Virginia took the water, the bed and the banks. Then to elucidate a proposition so clear by a Hibernicism, she retains these if she did not give them away. The territory "to the northwest of the Ohio river" was conveyed. Did this give away the river ? By the positive law of nations the river was the territory of Virginia-the river as defined by the law-and in the deed of cession there is no language which covers a single thread of its waters or a pebble of its banks.
But there is a striking coincidence between the international law and what was then and for many years afterwards continued to be the public policy of Virginia. By her act of May, 1780, she prevented the appropriation of any of the shores of her eastern waters, and in 1801 extended the inhibition to the western rivers. This was a settled idea of her policy main- tained through sixty years. Then by what fact or principle is the line of boundary to be settled ? The international law is conclusive; the policy of Virginia was equally determinate, that the shores of her navi- gable streams and great public rivers should not be appropriated, and, a fortiori, she did not intend to con- vey them to the citizens of other States. The same principle of domestic policy which required the pro- tection of the one, required the reservation of the other. Add to these considerations of domestic policy those multifarious reasons of public policy which constitute the reasonableness and common sense of the inter- national law, and construe the cession of Virginia. If
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these are the true principles of construction, then the criticism of the case of Handly's Lessee vs. Anthony is well taken, and that decision, in the latitude claimed for it, contravenes the settled policy of Virginia and the institutes of the law of nations.
The doctrine of alluvion, which has been indirectly relied upon as an element on which to found the decision in this case, cannot be brought into the discussion until the party claiming it proves title to the domain. Allu- vion is a legal sequence to the ownership of the soil; it is accessorial to the eminent domain ; but title to the domain can never arise out of, or be predicated upon, that which is purely accidental and accessorial to itself. It is an accident which may accrue to the freehold, but, unless by special grant, it cannot accrue to one who lies beyond another, which other is the owner of the soil upon which the alluvion is formed.
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