Justice Harlan, 'is of little value, and tends only to confuse the mind in its efforts to ascertain what was within the contemplation of the negotiators of 1819.' He considered it to be a matter of great regret that the question now presented, involving interests of great magnitude, should not have been determined, in some satisfactory mode, before or shortly after Texas was admitted as one of the States of the Union. It has remained unsettled for so long a time that it is not now so easy of solution as it would have been when the facts were fresh in the minds of living witnesses who had more intimate knowledge of the circumstances than any one can now possibly have upon the most thorough investigation.'1

In the first part of this portion of his opinion, Mr. Justice Harlan invokes the testimony of geographers, whose maps were published before and after the treaty of 1819. It would serve no useful purpose to enumerate them and consider the maps in detail. The first which he quotes, and considers the most trustworthy, is Pike's 'Account of expeditions to the sources of the Mississippi and through the western parts of Louisiana to the source of the Arkansas, Kan, La Platte and Pierre Juan Rivers, performed by order of the government of the United States, during the years 1805, 1806 and 1807; and a tour through the interior parts of New Spain, when conducted through these provinces by order of the Captain General in the year 1807'. This work of authority, copyrighted in 1808 and published in 1810, was written by the distinguished explorer and engineer, Zebulon Montgomery Pike, whose name is perpetuated by Pike's Peak, and whose death, in 1813, in the storming of Toronto, then York, in the War of 1812 between Great Britain and the United States, perpetuates him in the memory of his countrymen. Pike's account contained numerous charts, and Mr. Justice Harlan says, 'those charts show a large river called Red River, extending from a point near Santa Fé between latitude 37° and 38° across what is now the State of Texas, passing Natchitoches, Louisiana. Both show a chain of mountains running north and south, marked on one chart as "White snow capped mountains, very high". The learned Justice recalls, in this connexion, Mr. Adams's letter to the Spanish Minister, dated October 31, 1818, proposing' that the line from east to west should follow the course of Red River "to its source, touching the chain of the Snow Mountains, in latitude 37° 25′ north, longitude 106° 15′ west, or thereabouts "'.2 East of the Snow Mountains there are 'delineated on these charts', Mr. Justice Harlan says, 'two prongs or small streams, "Rio Rojo " and "Rio Moro", the source of the former being northeast, and the latter nearly east, of Santa Fé. The Rio Rojo rises between the 37th and 38th, and the Rio Moro between the 36th and 37th degrees of latitude, both near the 106th degree of longitude. Between these prongs, on one of the charts, are the words, "Source of Red River of the Mississippi ". The prongs or streams Rio Rojo and Rio Moro unite at about the 37th degree of latitude, and form one stream, marked on one chart as Red River, and on the other as "Rio Colorado [Red River] of Natchitoches ". The stream, thus formed, runs for a short distance eastwardly, then southeastwardly until it reaches a point a little west of the 100th meridian, then eastwardly, then a little northeastwardly, then southeastwardly, passing Natchitoches, to a junction with the Wichita River near the Mississippi River. It should also be stated that on these charts is marked a road or line extending from Tous, (which is north of Santa Fé,) through a gap of the Snow 1 United States v. State of Texas (162 U.S. 1, 43). Ibid. (162 U.S. 1, 48).

as

Evidence

of early maps and

writers.

Mountains, and thence along the north side of Red River. That line is described as "The route pursued by the Spanish cavalry when going out from Santa Fé in search of the American exploring parties commanded by Major Sparks and Captain Pike in the year 1806". These charts or maps, in connexion with the chart of the lower part of Red River, not here reproduced, also show throughout the entire distance from Natchitoches to the source of Red River near the Snow Mountains, small streams emptying into the main river from the north and northwest, none of which, however, are marked with names; and that north of Red River, as delineated by Pike, and east of the 100th meridian of longitude is an unnamed stream, not of great length, but having the same general course as the stream now known as the North Fork of Red River.'1

The learned Justice now considers the course and the source of the Red River as made out by Melish, whose map, it will be recalled, is referred to in the very treaty, and which plays so prominent a part in the trial and disposition of the suit. The language of Mr. Justice Harlan on this point, although somewhat lengthy, is quoted without comment, rather than paraphrased:

That prior to Melish's map of 1818 it was believed that the Red River that passed Natchitoches had its source in the mountains near Santa Fé is manifest from Melish's own publications. In 1816 he published at Philadelphia a small book, with the title A geographical description of the United States with the contiguous British and Spanish possessions'. It accompanied his map of those countries. In that work it appears that he used Humboldt's map of 1804, and Pike's Travels. He said: The Red River rises in the mountains to the eastward of Santa Fé, between north latitude 37° and 38°, and, pursuing a general southeast course, makes several remarkable bends, as exhibited on the map; but it receives no very considerable streams until it forms a junction with the Wachitta, and its great mass of waters, a few miles before it reaches the Mississippi.' pp. 13 and 39. See also the third edition of his work published in 1818, pp. 14 and 42.

On Darby's map of the United States, including Louisiana, published in 1818, and prefixed to his Emigrants Guide', appears the Red River of Natchitoches', formed by two prongs, and extending southeastwardly from a point near the intersection of the 107th degree of longitude and the 40th degree of latitude to its junction with waters near the Mississippi. East of the 100th meridian are two unnamed streams coming from the northwest, each much shorter than the main Red River, as delineated on that map. It is stated in this work that the Red River 'rises near Santa Fé in N. lat. 37° 30' and 29° west of Washington, runs nearly parallel to the Arkansas, joins the Mississippi at 31° N. lat. after a comparative course of 1100 miles.' p. 50.

In view of the facts stated, particularly in view of Melish's knowledge of Pike's publication and the statements in his own work, it cannot be doubted that when the Melish map of 1818 was published it was believed that there was a Red River that continued without break from its source near Santa Fé or the Snow mountains until it joined other waters east and southeast of Natchitoches, near the Mississippi.

Following the sourse of Red River, as laid down on the Melish map of 1818, it is impossible to doubt that in the mind of Melish the Red River was the stream represented by Pike as having two prongs, Rio Rojo and Rio Moro, near Santa Fé, and as running without break, first easterly, then southeastwardly, then eastwardly for a comparatively short distance, and then southeastwardly to its mouth near the Mississippi River. On the north and east of Red River, as thus marked, there was no stream connected with it that was marked by any name. There was an unnamed

United States v. State of Texas (162 U.S. 1, 48–9).

stream, on the north side of the main river, which emptied into the latter between the 101st and 102d degrees of west longitude as defined on that map. If regard be had alone to the map of 1818, it is more than probable that the river marked on it as having near its source two prongs, Rio Rojo and Rio Moro, and which formed one stream that continued without break southeastwardly, and into which, between the 101st and 102d degrees of longitude, as marked on that map, came from the northwest an unnamed stream, was the river designated on Pike's chart as Red River, and was the Red River of the treaty of 1819. The suggestion that the river marked on the Melish map as having the two prongs, Rio Rojo and Rio Moro, and running southeastwardly, was the river now known as the North Fork of the Red River, is without any substantial foundation upon which to rest. If the latter river is delineated at all on the Melish map, it is the unnamed stream that entered the main river from the northwest, between the 101st and 102d meridians as located on that map.

There is a large amount of evidence of a documentary character showing that this interpretation of the Melish map is correct. We have before us A map of the United States, with the contiguous British and Spanish possessions, compiled from the latest and best authorities by John Melish'. It was copyrighted June 16, 1820, and published at Philadelphia by Finlayson, the successor of Melish. A part of that map is reproduced on pages 52, 53. It is spoken of as Melish's map of 1823, because that is the year to which it was improved. From that map it appears that a line up the Rio Roxo or Red River, from the northeastern corner of Texas to the 100th meridian, is substantially an east and west line, and that west of the 100th meridian it is westward and northwestwardly, to a point near Santa Fé and the Snow Mountains.1 Upon the case, as thus elaborately related, Mr. Justice Harlan draws the following conclusion:

If the case depended upon that map it could not be doubted that the territory in dispute is outside of the limits of Texas. The direction of the treaty is to run westward, not northwestwardly, on Red River to the 100th meridian. According to the view pressed by the State, the true line extends, from the junction of the North Fork of Red River with the Red River, northwardly, then easterly, then northwestwardly up that fork, although at such junction there is another wide stream, coming almost directly from the west, and which fully meets the requirement of the treaty to follow the course of the Red River westwardly to the 100th meridian. We do not feel authorized to assent to this view. In our judgment the direction in the treaty to follow the course of the Red River westward to the 100th meridian takes the line, not up the North Fork, but westwardly with the river now known as the Prairie Dog Town Fork, or South Fork of Red River, until it reaches that meridian, thence due north to the point where Texas agreed that its line on the north' should commence.2

of later

maps.

Mr. Justice Harlan, however, although satisfied that the South Fork is the main Evidence stream, and therefore decisive of the controversy, nevertheless is unwilling, in view of the importance of the case, to part with the geographers, but continues an examination of the succeeding maps, including those issued by the Republic and the State of Texas, after the Melish map of 1818 and the improved edition of 1823. From their examination, which must have been very painful as it is very detailed, he draws the following conclusions:

All of these maps place the territory in dispute east of the 100th meridian and north of the southern line of the Indian Territory as that line is claimed by the United States. They are all inaccurate, if any part of that territory is within the limits of 2 Ibid. (162 U.S. 1, 51).

1 United States v. State of Texas (162 U.S. 1, 49–51).

Texas. No one of them so locates Red River that its course, going westward (from the point where the line between Texas and Louisiana intersects the Red River) to the 100th meridian would take the line of the treaty of 1819 up the North Fork of Red River until it intersected that meridian near the 35th degree of latitude.1

The case may well rest here, for, it being shown that Mr. Adams had in mind the Red River rising in the Snow Mountains, and thus, per his letter to the Spanish Ambassador in 1818, contemplated a line drawn westwardly called Red River, and that the Spanish negotiator likewise recognized, in his reply to Mr. Adams, that the stream arose in that region near Santa Fé, where the south fork then and now rises, the court was justified in concluding that the negotiators had in mind the boundary line following the course of the stream of the Red River, or that branch thereof rising within the region of the Snow Mountains and within the neighbourhood of Santa Fé. The court was fortified in its opinion by the account of Pike's explorations and its charts, showing the course of a stream known to be the Red River westwardly in such a way as to meet and to state the requirements of the treaty signed within nine years after the publication of that work. It is not stated in the case that Pike's account of his travels and explorations was before the eyes of the negotiators; but the author was a well-known figure, very much of a hero to the American people, and he was known to the Spanish authorities, because he had been captured within their territory, later released by the Captain-General, and his account covered a portion of New Spain. There was, therefore, reason why the Spanish negotiator should be familiar with Pike's book, inasmuch as it would be unthinkable that two men of affairs, defining the boundaries between two contiguous and not over-friendly countries, at the very time when they were negotiating the treaty in the east by which Spain ceded Florida to the United States in satisfaction of claims of the latter country, should not have been familiar with the books on the subject of their negotiations, especially when that book was well known and apparently popular at home and abroad. Within a year of its publication it was reprinted in England in 1812, a French translation was made, and it was also published in Dutch before the negotiations between the two countries.

In any event, Melish had drawn from Pike's account of the Red River in his map of 1818, which was used by the negotiators. The improved edition of his geography in 1823 followed Pike's description, and had the river rise near the Snow Mountains in the neighbourhood of Santa Fé, and located the entire stream in such a way that the boundary between the two countries could, as the treaty directed, follow the course of the river westwardly. In view of these circumstances, the decision would necessarily be for the United States, which claimed this as the boundary between it and Spain, to which Texas succeeded, rejecting the claim of Texas, inasmuch as the course of the line following the North Fork would be not westwardly but very markedly north-west.

In view of the intent of the parties, ascertained by documents then in existence, and the very map to which reference was made and confirmed by the subsequent maps of the region, it does not seem to be necessary to consider the contentions to break the force of their testimony, other than to say that the claim of Texas, that it had always contended for these boundaries, is met by the claim of the United United States v. State of Texas (162 U.S. 1, 59).

States that it had always likewise maintained the contention declared valid by the Supreme Court; that the acts of acquiescence, a doctrine recognized and applied in the cases of Rhode Island v. Massachusetts (12 Peters, 657), Virginia v. Tennessee (148 U.S. 503), Indiana v. Kentucky (136 U.S. 479), alleged by Texas, were negatived by the proof in denial thereof introduced by the United States and found by the court to be satisfactory; and that the trails from Santa Fé to the Mississippi, stated by Texas to follow more closely the North than the South Fork, whether before or after the treaty of 1819, were unimportant, inasmuch as the treaty made the course of the river, not the course of the trails, the boundary. Mentioning two further contentions on the part of Texas, Mr. Justice Harlan, on behalf of a unanimous court, thus concluded his opinion and announced its decree :

It is further said that the State, since it assumed to create Greer County, has expended a large amount of money in providing a public school system for the inhabitants of that locality. To what extent moneys have been so expended is not clearly shown. Whatever may be the facts, touching this point, we do not feel at liberty to give weight to them in this case. The question before us, we repeat, is one of law, and must be determined according to law. What may be fairly and justly demanded by the State, on account of moneys expended for the benefit of the inhabitants of the disputed territory, is a matter for the consideration of the legislative branch of the National Government.

In the argument it was suggested that this court ought not to forget how much was added to the power and wealth of this nation when Texas, with its imperial domain, came into the Union, and her people became a part of the political community for whom the Constitution of the United States was ordained and established. This fact cannot, of course, be forgotten by any American who takes pride in the prestige and greatness of the Republic. But the considerations which it suggests cannot affect the decision of legal questions, and must be addressed to another branch of the Government. The supposition is not to be indulged that that depart. ment of the Government will fail to recognize any duty imposed upon it by the circumstances arising out of this vexed controversy.

For the reasons stated the United States is entitled to the relief asked. And this court now renders the following decree :

for the

This cause having been submitted upon the pleadings, proofs and exhibits, Judgeand the court being fully advised, it is ordered, adjudged and decreed that the ment territory east of the 100th meridian of longitude, west and south of the river now United known as the North Fork of Red River, and north of a line following westward, as States. prescribed by the treaty of 1819 between the United States and Spain, the course, and along the south bank, both of Red River and of the river now known as the Prairie Dog Town Fork or South Fork of Red River until such line meets the 100th meridian of longitude-which territory is sometimes called Greer County-constitutes no part of the territory properly included within or rightfully belonging to Texas at the time of the admission of that State into the Union, and is not within the limits nor under the jurisdiction of that State, but is subject to the exclusive jurisdiction of the United States of America. Each party will pay its own costs.1

42. State of Indiana v. State of Kentucky.

(163 U.S. 270) 1896.

In 1890 counsel for Indiana and Kentucky appeared before the bar of the court and argued the question of boundary, maintaining, on the part of Indiana, that the United States v. State of Texas (162 U.S. 1, 89–91).