persons, to be agreed that, just as private persons pay interest, if they do not stipulate to Unlike the contrary, public persons do not pay interest unless they bind themselves to do private so. And the reason for the distinction seems to be one of real or imaginary convenience to the public. Thus, Justice Gray says: interest Interest, when not stipulated for by contract, or authorized by statute, is States allowed by the courts as damages for the detention of money or of property, or of are not compensation, to which the plaintiff is entitled; and, as has been settled on grounds liable for of public convenience, is not to be awarded against a sovereign government, unless except by its consent to pay interest has been manifested by an act of its legislature, or by express a lawful contract of its executive officers. United States v. Sherman, 98 U.S. 565; agreeAngarica v. Bayard, 127 U.S. 251, 260, and authorities there collected; In re Gosman, ment. 17 Ch. D. 771.1 After examining these three cases, which he considered the leading ones on the subject, and some others, not so leading but to the same effect, the learned Justice reviewed the leading cases of North Carolina on the subject, and was able to say that 'it is equally well settled, by judgments of the Supreme Court of North Carolina, that the State, unless by or pursuant to an explicit statute, is not liable for interest, even on a sum certain which is overdue and unpaid '.2 The law, therefore, of three jurisdictions, of Great Britain, the United States, and of North Carolina was to one effect and was counter to the claim of the United States. Mr. Justice Gray thereupon examined the law of North Carolina, by virtue of which the bonds were issued, and the bonds themselves, in order to see if there were a promise to pay interest after maturity, so as to take the case out of the general rule. He found no evidence of consent to pay interest after maturity in the laws of the State by virtue of which the bonds were issued, or in the bonds themselves. The contention of the United States in the matter of interest failed unless it could be sustained that the bonds were to bear interest after maturity, because made payable in New York, according to the laws of which State, it seems, interest is payable upon bonds after maturity. Mr. Justice Gray, however, made short shrift of this contention of the United States, saying: that contracts are to be governed, as to their nature, their validity and their interpretation, by the law of the place where they are made, unless the contracting parties appear to have had some other place in view. Liverpool Steam Co. v. Phoenix Ins. Co., 129 U.S. 397, 453.3 The mere stipulation that the bonds were to be paid in New York did not of itself vary the law of North Carolina, in which State they were issued, and by the law of which State they did not bear interest after maturity. The court, therefore, Decision of majordecided against the United States, although Mr. Justice Miller, Mr. Justice Field, ity of the and Mr. Justice Harlan dissented, and sustained the plea of North Carolina that Court interest did not run after the maturity of the bonds, inasmuch as there was no against the contract to that effect or consent on the part of North Carolina to have the bonds United pay interest after their maturity. It is interesting to note that, in this case, not the first, indeed, in which the United States appeared at the bar of the court in a proceeding between States, for it had intervened in the case of Florida v. Georgia (17 Howard, 478), but the 1 United States v. State of North Carolina (136 U.S. 211, 216). 2 Ibid. (136 U.S. 211, 218–19). Ibid. (136 U.S. 211, 222). States. A boun first in which it appeared on the record as party plaintiff, the judgement of the court should be adverse to its claims, and that it should leave the forum of its choice a defeated litigant, which is bound to be the fate of one or other litigant, however high or however low, in a court of justice. 29. State of Indiana v. State of Kentucky. The case of Indiana v. Kentucky (136 U.S. 479), decided by the Supreme Court dary dis- in 1890 in favour of the latter State, was a controversy as to the boundary between pute. the two States, separated by the Ohio River; but the northern boundary line of Kentucky, wherever drawn, is the southern boundary line of Indiana, for the two States are contiguous to this extent. History of the boundaries. The case is one in which history plays an important, indeed a dominating rôle, as so often happens in boundary disputes between nations as well as states, and because of this it seems advisable to draw upon history before stating the particular facts and circumstances which gave rise to the particular controversy under consideration. It is common knowledge that the Commonwealth of Virginia claimed under its charter vast tracts of territory to the west and north-west of its present boundaries. If it is appropriately called the mother of presidents it can with equal propriety be called the mother of states of vast and imperial extent, because numerous states of the American Union have been formed out of this territory claimed by Virginia, including Kentucky and Indiana among others, and ceded by it to the United States at the conclusion of the war of the Revolution. On December 20, 1783, the legislature of Virginia authorized and empowered its delegates in the Congress of the United States, ' for and on behalf of this State, by proper deeds or instrument in writing, under their hands and seals, to convey, transfer, assign, and make over unto the United States, in Congress assembled, for the benefit of the said States, all right, title and claim, as well of soil as jurisdiction, which this Commonwealth hath to the territory or tract of country within the limits of the Virginia charter, situate, lying and being to the north-west of the river Ohio '. In the exercise of this authorization and of this power, the delegates from that State in Congress executed and delivered, on the first day of March, 1784, to the United States in Congress assembled' a deed of 'all right, title, and claim, as well of soil as of jurisdiction, which the said Commonwealth hath to the territory or tract of country within the limits of the Virginia charter, situate, lying and being to the north-west of the river Ohio'. The deed was on the same day accepted by the Congress and was spread at length upon its records.2 It may be proper to mention, in this connexion, that this act of Virginia was of immediate as well as of future interest, inasmuch as the claims of Virginia to the west and north-west had prevented Maryland from ratifying the Articles of Confederation. This action on the part of Virginia removed the opposition of this State, and it thereupon ratified the Articles of Confederation, forming of the states a confederation, shortly thereafter, upon the initiative of the great Commonwealth, to be formed into that more perfect Union under the Constitution. 1 State of Indiana v. State of Kentucky (136 U.S. 479). • Ibid. (136 U.S. 479). Under the Confederation the Congress thereof passed a very important statute on July 13, 1787, entitled, ‘An ordinance for the government of the territory of the United States north-west of the river Ohio.' A year later, in order to remove any doubt or misunderstanding that there might be regarding the nature and extent of the deed of cession of 1784 made by Virginia of the territory to the west and northwest to the United States, the legislature of Virginia in 1788 passed a statute reciting the ordinance, and which provided' that the afore-recited article of compact between the original States and the people and States in the territory north-west of Ohio river be, and the same is hereby, ratified and confirmed, anything to the contrary in the deed of cession of the said territory by this Commonwealth to the United States notwithstanding.' '1 On August 7, 1789, the first Congress under the Constitution passed an act 'to provide for the government of the territory northwest of the river Ohio', and on December 18th of that year the legislature of Virginia consented by statute that the district of Kentucky, within the jurisdiction of said Commonwealth, and accord.ing to its actual boundaries at that time, should be formed into a new State'. The act further provided that the use and navigation of the river Ohio, so far as the territory of the proposed State, or the territory which shall remain within the limits of this Commonwealth, lies therein, shall be free and common to the citizens of the United States; and the respective jurisdictions of this Commonwealth and of the proposed State, on the river aforesaid, shall be concurrent only with the States which shall possess the opposite shores of the said river.' 2 On May 26, 1790, Congress created a territorial government for the territory of the United States south of the river Ohio,' and on February 4, 1791, consented to the admission of Kentucky into the Union' according to its actual boundaries on the 18th day of December, 1789;' that is to say, the date of the statute of Virginia consenting to the admission of the district of Kentucky as a State of the American Union. On May 7, 1800, an act was passed by Congress to divide the territory of the United States northwest of the Ohio into two separate governments', and on April 30, 1802, an enabling act for the admission of Ohio was passed, the river of that name being made the southern boundary. By this act the territory to the west of the present boundary of Ohio and east of the division line established by the act of 1800 was made a part of the Indiana territory'. On February 3, 1809, the territory of Illinois was separated from the territory of Indiana, the Wabash River forming the boundary between the two territories, and on April 19, 1816, an act of Congress was passed enabling Indiana to become a State, in which it was enacted that it should be bounded' on the south by the river Ohio, from the mouth of the Great Miami River to the mouth of the river Wabash '.$ In these dry and uninteresting enactments we have the genesis of the State of Indiana, bounded on the east by Ohio, on the west by Illinois, and on the south by that portion of the river Ohio between the Miami and the Wabash. In all these enactments it is to be observed that the territories formed out of the territory conveyed by Virginia are bounded on the south by the river Ohio, the navigation of which is to be free to the citizens of the United States and the jurisdiction concurrent 1 State of Indiana v. State of Kentucky (136 U.S. 479, 480). 1569-24 S Ibid. (136 U.S. 479, 480-1). Chief Justice Marshall on the question, 1820. only with the States which shall possess the opposite shores of the said river'. These States did not, therefore, extend to the centre of the stream but only to the stream. We do not need to speculate as to where the line between the state of Indiana on the north and of Kentucky on the south should be drawn, as Mr. Chief Justice Marshall, speaking for a unanimous court in the case of Handly's Lessee v. Anthony boundary (5 Wheaton 374), decided in 1820, within four years after the act had been passed enabling Indiana to become a state, decided that Kentucky extended to the lowwater mark on the western or north-western side of the Ohio River. The suit was not between the States but involved their jurisdiction over territory, inasmuch as the plaintiff in the action claimed a grant of a strip of land from the State of Kentucky, whereas the defendants held under a grant from the United States as being part of Indiana. Under these circumstances the Chief Justice said: Principle of law governing river boun daries. The title depends upon the question whether the lands lie in the State of Kentucky or in the State of Indiana. In a portion of his opinion, Chief Justice Marshall calls attention to the fact that, in making the Ohio River the boundary, Virginia must have meant not merely a narrow bayou, into which its waters occasionally run, but the great river itself; and after stating the arguments of contending counsel, he proceeded to lay down the rule to be followed in this class of cases: The same tract of land cannot be sometimes in Kentucky, and sometimes in Indiana, according to the rise and fall of the river. It must be always in the one State or the other. There would be little difficulty in deciding, that in any case other than land which was sometimes an island, the state of Indiana would extend to low water mark. Is there any safe and secure principle, on which we can apply a different rule to land which is sometimes, though not always, surrounded by water? So far as respects the great purposes for which the river was taken as the boundary, the two cases seem to be within the same reason, and to require the same rule. It would be as inconvenient to the people inhabiting this neck of land, separated from Indiana only by a bayou or ravine, sometimes dry for six or seven hundred yards of its extent, but separated from Kentucky by the great river Ohio, to form a part of the last-mentioned State, as it would for the inhabitants of a strip of land along the whole extent of the Ohio, to form a part of the State on the opposite shore. Neither the one nor the other can be considered as intended by the deed of cession. If a river, subject to tides, constituted the boundary of a State, and at flood the waters of the river flowed through a narrow channel, round an extensive body of land, but receded from that channel at ebb, so as to leave the land it surrounded at high water, connected with the main body of the country; this portion of territory would scarcely be considered as belonging to the State on the opposite side of the river, although that State should have the property of the river. The principle that a country bounded by a river extends to low water mark, a principle so natural, and of such obvious convenience as to have been generally adopted, would, we think, apply to that case. We perceive no sufficient reason why it should not apply to this. The case is certainly not without its difficulties; but in great questions which concern the boundaries of States, where great natural boundaries are established in general terms, with a view to public convenience, and the avoidance of controversy, we think the great object, where it can be distinctly perceived, ought not to be defeated by those technical perplexities which may sometimes influence contracts between individuals. The State of Virginia intended to make the great river Ohio, throughout its extent, the boundary between the territory ceded to the United States and herself. When that part of Virginia, which is now Kentucky, became a separate State, the river was the boundary between the new States erected by congress in the ceded territory, and Kentucky. Those principles and considerations which produced the boundary, ought to preserve it. They seem to us to require, that Kentucky should not pass the main river, and possess herself of lands lying on the opposite side, although they should, for a considerable portion of the year, be sur rounded by the waters of the river flowing into a narrow channel.1 In view of the case of Handly's Lessee v. Anthony, and the principle laid down by the great Chief Justice, it is evident that the controversy could only be as to the possession of land to the north of the river and that any attempt on the part of Kentucky to invade the jurisdiction of Indiana would be stopped by the strong hand of the law, just as any attempt on the part of Indiana to extend itself beyond lowwater mark would be met and held in check by the river itself. The land in question was Green River Island, 'a formation in the river on the Indiana side, opposite the mouth of the Green River entering the Ohio from Kentucky.' The nature and extent of the controversy, which the two States had been unable to settle amicably without the intervention of the Supreme Court, are thus stated by Mr. Justice Field Opinion in delivering its unanimous opinion: This is a controversy between the State of Indiana and the State of Kentucky growing out of their respective claims to the possession of and jurisdiction over a tract of land nearly five miles in length and over half a mile in width, embracing about two thousand acres, lying on what is now the north side of the Ohio River. Kentucky alleges that when she became a State on the 1st of June, 1792, this tract was an island in the Ohio River, and was thus within her boundaries, which had been prescribed by the act of Virginia creating the District of Kentucky. The territory assigned to her was bounded on the north by the territory ceded by Virginia to the United States. The tract in controversy was then and has ever since been called Green River Island. Kentucky founds her claim to its possession and to jurisdiction over it upon the alleged ground that at that time the river Ohio ran north of it, and her boundaries extended to low-water mark on the north side of the river; also upon her long undisturbed possession of the premises, and the recognition of her rights by the legislation of Indiana. Indiana rests her claim also upon the boundaries assigned to her when she was admitted into the Union on the 11th of December, 1816, of which the southern line was designated 'as the river Ohio from the mouth of the Great Miami River to the mouth of the Wabash'. This boundary, as she alleges, embraces the island in question, she contending that the river then ran south of it, and that a mere bayou separated it from the mainland on the north.2 The learned Justice then examined the various statutes dealing with the cession up to and including the boundaries of the State of Indiana contained in the enabling act of 1816. In addition, he called attention to an act of the General Assembly of Kentucky, passed in 1810, six years before the admission of the State of Indiana, the material portion of which act, passed to remove doubts as to the jurisdiction of Kentucky, is thus worded: That each county of this Commonwealth, calling for the river Ohio as the boundary line, shall be considered as bounded in that particular by the state line on the northwest side of said river, and the bed of the river and the islands therefore shall be within the respective counties holding the main land opposite thereto, within this State, and the several county tribunals shall hold jurisdiction accordingly.3 1 Handly's Lessee v. Anthony (5 Wheaton, 374, 382-4). State of Indiana v. State of Kentucky (136 U.S. 479, 503). Ibid. (136 U.S. 479, 505). of the Court. |