of the old channel, although no water may be flowing therein. This sudden and rapid change of channel is termed, in the law, avulsion.1 tion of In support of this statement of the law the learned Justice cited adjudged cases A quesof national courts. His purpose, however, was to show that these principles applied interto States and to Nations as well as to individuals, because international law is a part national law. of the law of the land and international law is administered between States when its principles properly apply to their disputes. To make it clear, therefore, that the domestic law was the same as the law of nations, he invoked in first instance the very great authority of Mr. Caleb Cushing, Attorney-General of the United States, and whose opinions as adviser to the Government are models of sound learning and of classical expression. Thus he says, speaking of changes in the course of the Rio Grande : With such conditions, whatever changes happen to either bank of the river Mr. Cushby accretion on the one or degradation of the other, that is, by the gradual, and, ing's opinion as it were, insensible accession or abstraction of mere particles, the river as it runs in the continues to be the boundary. One country may, in process of time, lose a little of dispute its territory, and the other gain a little, but the territorial relations cannot be reversed with by such imperceptible mutations in the course of the river. The general aspect of Mexico. things remains unchanged. And the convenience of allowing the river to retain its previous function, notwithstanding such insensible changes in its course, or in either of its banks, outweighs the inconveniences, even to the injured party, involved in a detriment, which, happening gradually, is inappreciable in the successive moments of its progression. But, on the other hand, if, deserting its original bed, the river forces for itself a new channel in another direction, then the nation, through whose territory the river thus breaks its way, suffers injury by the loss of territory greater than the benefit of retaining the natural river boundary, and that boundary remains in the middle of the deserted river bed. For, in truth, just as a stone pillar constitutes a boundary, not because it is a stone, but because of the place in which it stands, so a river is made the limit of nations, not because it is running water bearing a certain geographical name, but because it is water flowing in a given channel, and within given banks, which are the real international boundary.2 For the many authorities on international law, quoted by Mr. Justice Brewer from the opinion of Attorney-General Cushing, space is not to be spared; but one writer, whose testimony cannot be denied nor his authority gainsaid, should be quoted, and cannot be too often quoted at a time when it is especially necessary to show that the conduct of nations has been, must be, and therefore will be conducted according to the law of nations. Thus the Swiss Publicist, whom Mr. Justice Brewer quotes in English, and because of the importance of his language adds the original in the margin, says in his Law of Nations, published for the first time in 1758 and repeatedly reissued: Vattel Vattel states the rule thus (Book I, c. 22, secs. 268, 269, 270) : 'If a territory which terminates on a river has no other boundary than that cited. river, it is one of those territories that have natural or indeterminate bounds (territoria arcifinia), and it enjoys the right of alluvion; that is to say, every gradual increase of soil, every addition which the current of the river may make to its bank on that side, is an addition to that territory, stands in the same predicament with it, and belongs to the same owner. For, if I take possession of a piece of land, declaring that I will have for its boundary the river which washes its side or if it is given to 1 State of Nebraska v. State of Iowa (143 U.S. 359, 361). Ibid. (143 U.S. 359, 361-2). Character me upon that footing, I thus acquired beforehand the right of alluvion; and, consequently, I alone may appropriate to myself whatever additions the current of the river may insensibly make to my land. I say "insensibly ", because, in the very uncommon case called alluvion, when the violence of the stream separates a considerable part from one piece of land and joins it to another, but in such manner that it can still be identified, the property of the soil so removed naturally continues vested in its former owner. The civil laws have thus provided against and decided this case, when it happens between individual and individual; they ought to unite equity with the welfare of the state, and the care of preventing litigations. 'In case of doubt, every territory terminating on a river is presumed to have no other boundary than the river itself; because nothing is more natural than to take a river for a boundary, when a settlement is made; and wherever there is a doubt, that is always to be presumed which is most natural and most probable. 'As soon as it is determined that a river constitutes the boundary line between two territories, whether it remains common to the inhabitants on each of its banks, or whether each shares half of it, or, finally, whether it belongs entirely to one of them, their rights, with respect to the river are in no wise changed by the alluvion. If, therefore, it happens that, by a natural effect of the current, one of the two territories receives an increase, while the river gradually encroaches on the opposite bank, the river still remains the natural boundary of the two territories, and, notwithstanding the progressive changes in its course, each retains over it the same rights which it possessed before; so that, if, for instance, it be divided in the middle between the owners of the opposite banks, that middle, though it changes its place, will continue to be the line of separation between the two neighbors. The one loses, it is true, while the other gains; but nature alone produces this change; she destroys the land of the one while she forms new land for the other. The case cannot be otherwise determined, since they have taken the river alone for their limits. 'But if, instead of a gradual and progressive change of its bed, the river, by an accident merely natural, turns entirely out of its course and runs into one of the two neighboring States, the bed which it has abandoned becomes thenceforward their boundary, and remains the property of the former owner of the river, (sec. 267,) the river itself is, as it were, annihilated in all that part while it is reproduced in its new bed, and there belongs only to the State in which it flows.'1 So much for the law; now, as to the river, which Mr. Justice Brewer describes as an eye-witness, and, understanding its peculiarities, holds that the doctrine of accretion applies to it under ordinary conditions: The Missouri River is a winding stream, coursing through a valley of varying width, the substratum of whose soil, a deposit of distant centuries, is largely of quicksand. In building the bridge of the Union Pacific Railway Company across the Missouri River, in the vicinity of the tracts in controversy, the builders went down to the solid rock, sixty-five feet below the surface and there found a pine log a foot and a half in diameter-of course, a deposit made in the long ago. The current is rapid, far above the average of ordinary rivers; and by reason of the snows in the mountains there are two well-known rises in the volume of its waters, known as the April and June rises. The large volume of water pouring down at the time of these rises, with the rapidity of its current, has great and rapid action upon the loose soil of its banks. Whenever it impinges with direct attack upon the bank at a bend of the stream, and that bank is of the loose sand obtaining in the valley of the Missouri, it is not strange that the abrasion and washing away is rapid and great. Frequently, where above the loose substratum of sand there is a deposit of comparatively solid soil, the washing out of the underlying sand causes an instantaneous fall of quite a length and breadth of the superstratum of soil upon the river; so that it may, 1 State of Nebraska v. State of Iowa (143 U.S. 359, 364-7). in one sense of the term, be said that the diminution of the banks is not gradual and imperceptible, but sudden and visible. Notwithstanding this, two things must be borne in mind, familiar to all dwellers on the banks of the Missouri River, and disclosed by the testimony: that, while there may be an instantaneous and obvious dropping into the river of quite a portion of its banks, such portion is not carried down the stream as a solid and compact mass, but disintegrates and separates into particles borne onward by the flowing water and giving to the stream that color which, in the history of the country, has made it known as the 'muddy' Missouri; and, also, that while the disappearance, by reason of this process, of a mass of bank may be sudden and obvious, there is no transfer of such solid body of earth to the opposite shore or anything like an instantaneous and visible creation of a bank on that shore. The accretion, whatever may be the fact in respect to the diminution, is always gradual and by the imperceptible deposit of floating particles of earth. There is, except in such cases of avulsion as may be noticed hereafter, in all matter of increase of bank, always a mere gradual and imperceptible process. There is no heaping up at an instant, and while the eye rests upon the stream, of acres or rods on the forming side of the river. No engineering skill is sufficient to say where the earth in the bank washed away and disintegrating into the river finds its rest and abiding place. The falling bank has passed into the floating mass of earth and water, and the particles of earth may rest one or fifty miles below, and upon either shore. There is, no matter how rapid the process of subtraction or addition, no detachment of earth from the one side and deposit of the same upon the other. The only thing which distinguishes this river from other streams, in the matter of accretion, is in the rapidity of the change caused by the velocity of the current; and this in itself, in the very nature of things, works no change in the principles underlying the rule of law in respect thereto. Having thus clearly stated that the process of accretion is to be recognized as operating in the Missouri, although the suddenness of the change may suggest avulsion in one of its phases, the learned Justice draws the necessary consequences from his own observations and the testimony of others : Our conclusions are that, notwithstanding the rapidity of the changes in the course of the channel, and the washing from the one side and on to the other, the law of accretion controls on the Missouri River, as elsewhere; and that not only in respect to the rights of individual land owners, but also in respect to the boundary lines between States. The boundary, therefore, between Iowa and Nebraska is a varying line, so far as affected by these changes of diminution and accretion in the mere washing of the waters of the stream.1 31. United States v. State of Texas. (143 U.S. 621) 1892. an inde The case of the United States v. Texas (143 U.S. 621), decided in 1892, is of extraordinary interest, as it discloses the United States, about whose sovereignty no American and no foreigner would raise a question, summoning to the bar of the Supreme Court the State of Texas, once a member of the society of nations, which Texas, no professor of political science could maintain had not once been a sovereign formerly state, as some professors of political science are wont to assert that the colonies pendent became, on the Declaration of Independence, states of the Union without ever having republic, been States of international law. The State of Texas had no antecedent connexion with the United States, but the Congress consented by joint resolution of March 1, 1 State of Nebraska v. State of Iowa (143 U.S. 359, 368-70). to the Union in 1845. admitted 1845, to its admission upon certain conditions, and upon the acceptance thereof, the Republic of Texas was by a joint resolution of Congress of December 29, 1845, admitted to the Greater Republic of American States upon a footing of equality, with the same rights, the same duties, the same privileges as any other State of this Union of States. The State had formed a part of Mexico, itself an off-shoot of Spain, and there are no charters of English-speaking kings or proprietors to measure its ample boundaries. It declared its independence of Mexico in 1836, and set out for itself as a republic, recognized as such by the United States and by the powers of Europe, although the youthful Mexico, in the rather embarrassing rôle of a mother country, was not very prompt in the matter of recognition. The War. Dispute about the Okla homa boun dary. Texas demurs to the jurisdiction. The boundary claimed by Texas and supported by the United States extended as far west as the Rio Grande, whereas the contention of Mexico would have made of the Neuces River, many miles to the east, the frontier between the Republic of Texas and the Republic of Mexico. The contention of the United States, as the contention of the stronger, prevailed by force of arms. The controversy between Texas and the United States did not relate to the western boundary, and was fortunately prosecuted in a forum where arms and physical strength do not count. There are two cases in the reports of the Supreme Court under the caption of United States v. Texas, the first of which deals with the question of jurisdiction, inasmuch as the State of Texas contested the right of the Supreme Court to entertain and to decide the dispute, on the ground, among others, that it was of a political nature; and the second of which decides the dispute after the decision of the court that it could properly take jurisdiction of the question. In view, therefore, of this twofold division, it is advisable to eliminate from the first case, and to remit to the second questions of boundary naturally considered and decided in the second, and to examine the matter of jurisdiction with only such reference to the facts of the case as are strictly necessary for the comprehension of this phase of it. It is sufficient for present purposes to state that the United States, by act of Congress of May 2, 1890, provided a temporary government for the Territory of Oklahoma, and as a large portion of the land which it claimed and wished to include within the boundaries of the new territory was claimed by Texas and included within its domain as Greer County, the Congress authorized and directed the AttorneyGeneral to file a bill in equity in the Supreme Court in behalf of the United States, in order to have the ownership of the territory in question judicially determined. In the meantime, the land in dispute was exempted from the operation of the act. The State of Texas answered the bill of the United States, denying its right to the land in controversy and setting up its own claim to it. At the same time Texas filed a demurrer, maintaining in the first place that the question was political, not judicial; in the second place, that if it were judicial, the United States should not prosecute in its own court a claim to which the United States and Texas were both parties and had an equal right to an impartial hearing; and finally, that the remedy of the United States was at law; not in equity, as the title to realty could be ascertained in a suit at law, whereas it could not be ascertained in a suit in equity, for which reason the act of Congress declaring that a suit of law should be a suit in equity, and that legal rights should be determined in equity instead of in a court of law, was unconstitutional and void. Without entering into the facts, or the treaties and conventions on which they are based, it may perhaps be added in this connexion that the tract of land in dispute amounted to 1,511,576.17 acres, and that the possession thereof turned upon the point from which the boundary should be drawn westward. If from the South fork of the Red River the territory in question admittedly became the property of Texas. It may further be said that the documents were obscure, if not ambiguous, so that an honest difference of opinion, uncoloured by interest in the possession of the property, might well have existed. that In the course of a very careful and close-knit argument, counsel for Texas objected, and sought to sustain their objections, to the jurisdiction of the Supreme Court in the dispute, and they properly made this the preliminary question and dwelt upon it with insistence, because, if the Supreme Court could not entertain the suit, the case of the United States failed upon the very threshold. The first point, Claim which only need be stated without elaborating upon it, was that a State could not Texas be sued without its consent, that Texas had never given its consent to this suit, and had not that consent to be sued could not be presumed from the clause of the Constitution consented vesting the Supreme Court with original jurisdiction in cases to which States were parties, inasmuch as the judicial power of the United States did not extend to a suit by the United States against one of them. Therefore the consent of Texas to be sued applied merely to a suit by a sister state, not to a suit by the United States, for which the express consent of Texas would be required, supposing that the suit was of a kind whereof the court could take jurisdiction, that is to say, that it was justiciable. But, in the opinion of counsel for Texas, the suit was not justiciable. In view of repeated decisions of the Supreme Court in boundary disputes, counsel were indeed bold to maintain that the suit was political, not judicial, for, while a boundary dispute between independent nations is political, counsel should have recalled the statement of Mr. Justice Baldwin, concurred in by the court, whose opinion he delivered, that a reference of a political question to a court of justice made that judicial which was political before. Counsel were familiar with the case of Rhode Island v. Massachusetts (12 Peters, 657), inasmuch as they cited it. They were, however, unwilling to join issue on this question, inasmuch as they insisted that, should the court be of a contrary opinion, it should nevertheless refrain from assuming jurisdiction, because the judicial power of the United States, and especially the original jurisdiction of the court, did not extend to controversies between the United States and individual States'. to suit. from the Counsel for Texas stood on firm ground-in the sense that the court had not Arguexpressly decided the point against them-when they maintained that the United ments States is not a State within the meaning of the Constitution, and, because of that fact, Constitu it had no right to sue; and even if it could have a right, Texas had not consented tion. to be sued by it. Counsel for Texas dwelt upon the letter, and from examination of the clauses of the Constitution concerning the judicial power, sought to discover its spirit as well. To understand their argument it is necessary to quote rather freely their language. Thus : As to the contention embodied in the second ground of demurrer, the Constitution provides that the judicial power shall extend to Controversies to which the United States shall be a Party'; to 'Controversies between two or more States'; ' between |