in places.

visible and enduring monuments. The commissioners were appointed, their report presented and approved by the court in 1850, forming the second phase of the case, Missouri v. Iowa (10 Howard, 1). But monuments of States as well as of men have becomes the habit of crumbling, and in the course of years the line, originally well marked, indistinct became indistinct, resulting in a confusion of boundary between the 50th and 55th mile-posts, and a consequent extension or denial of jurisdiction within the disputed region. Therefore the third phase of this controversy began, when in 1895 Missouri filed its bill against the State of Iowa (160 U.S. 688), and the third phase ended in February of the next year, when the Supreme Court appointed commissioners to remark that part of the boundary line of 1850 between the 50th and 55th mile-posts.

tion for

a fresh

The case was what might be called a friendly suit, as each State was annoyed Applicabecause of the confusion of boundary and each was desirous to have it corrected. In the bill filed by Missouri, 'the complainant states', to quote a small portion thereof, com'that it is highly important to the States of Iowa and Missouri that the question of mission. boundary should be speedily and finally settled; that heretofore the peace of the people of the States of Missouri and Iowa, especially in the county of Mercer, in the former, and the county of Decatur, in the latter, have been seriously disturbed in consequence of frequent conflicts of jurisdiction arising from differences of opinion as to the location of the said state line between said counties'. After mentioning that adequate remedy does not exist at law, inasmuch as the controversy involved 'questions of jurisdiction and sovereignty', it is prayed that Iowa be made a defendant, and permitted to answer the complaint of Missouri upon final hearing 'that the northern boundary line of the State of Missouri, it being the boundary line between the complainant and defendant, be by the order and decree of this court ascertained and established; that the rights of possession, jurisdiction, and sovereignty of the State of Missouri to all the territory south of the line heretofore marked and run out by said J. C. Sullivan in 1816, re-marked by the commissioners heretofore named in 1850, and approved by the decree of the Supreme Court of the United States rendered as aforesaid, be restored to said State of Missouri, and that said State of Missouri be quieted in her title thereto, and that the defendant, The State of Iowa, be forever enjoined and restrained from disturbing the said State of Missouri, her officers and her citizens, in the full enjoyment and possession of the territory lying south of said line, and that such other and further relief may be granted as the nature of the case may require '.2 By its Attorney-General, the State of Iowa filed its answer, denying some of the allegations, admitting others, and making averments on its own part, concluding that

Said respondent, with the view to have an ultimate and final decision of the controversy, prays that this answer may also be treated as a cross-bill, and joins in the prayer of said complainant that the said boundary line between said complainant and respondent be, by the order and decree of this court, ascertained and established, and to that end that a commission be appointed, in such manner as to this court shall be deemed proper, to retrace the line traced and marked by the commission of this court in 1850, and as set forth in the decree of this court in the case of State of Missouri v. The State of Iowa, as aforesaid, and that such retracing of such line thus found be by such commissioners marked with fixed and enduring monuments, and 2 Ibid. (160 U.S. 688–9).

1 State of Missouri v. State of Iowa (160 U.S. 688).

Fresh commis

sion ap

pointed by the Court.

Question

diction

that the title of the State of Iowa in and to all territory north of the line thus found and marked be forever quieted in the said respondent, and for such other and further relief as equity and good conscience may require.1

In its replication to the answer and cross-bill filed by Iowa, counsel for Missouri again stated that officers of Iowa are exercising jurisdiction over territory to the south of the boundary line between the two States, and that, in order to prevent conflicts of jurisdiction, the boundary line should be re-established. As the parties were therefore agreed as to the necessity of retracing and re-marking the line, they formally agreed that a commission of three members be appointed, one by the State of Missouri, one by the State of Iowa, and the third by the two commissioners upon the failure of the States to agree, in order, without unnecessary delay, to 'retrace the line as run and located by Hendershott and Minor in 1850 between the 50th and 55th mile-posts on said line, beginning and ending the survey at such points as may be necessary to ascertain the true original line between said mile-posts, and, having found said true line, to mark the same by plain and enduring monuments and make report of their said retracing and survey of said line to this court '.2

Mr. Chief Justice Fuller, on February 3, 1896, announced the decree of the court, and, in accord with the agreement of the parties, appointed the three commissioners upon whom the States had agreed, to re-draw and re-mark the boundary line between the two points in controversy, empowering them to request the co-operation and assistance of the State authorities in performing their duties; to report their proceedings in the premises on or before May 1, 1896; fixing the compensation of each commissioner at $10.00 a day; and, in case of vacancy through death or resignation, vesting in the court, or, if not in session, the Chief Justice, the power to fill the vacancy thus created.3

41. United States v. State of Texas.

(162 U.S. 1) 1896.

In the October term of the Supreme Court in the year 1891, the second and final phase of the great and leading case of United States v. Texas (162 U.S. 1) was argued, and on March 16, 1896, a date in judicial settlement, at least in the United States, the controversy of the United States, on the one hand, representing the states of the Union, with Texas, on the other, was decided in the Court of the States, specially vested with power to determine controversies between the States. In this grant of power, if all controversies which could arise between the States are not expressly included, none, as the great Chief Justice Marshall said, are excluded; so that necessarily, disputes which might be the cause of war between sovereign nations are peaceably and judicially settled between sovereign States of the American Union, without a resort to diplomacy or to war, which overshadows diplomacy and emerges upon its breakdown.

The first suit between the United States and Texas is the important one, and of juris- the second may be said to be its natural consequence. It is the exercise of the already jurisdiction found to exist, and although in comparison it may seem to be outclassed by its predecessor, it must not be forgotten that jurisdiction exists to be exercised,

settled

(ante, p.

For the final phase of this case see State of Missouri v. State of Iowa (165 U.S. 118), post, p. 332.

boundary

and that the exercise of jurisdiction is the clearest evidence of its existence. As soon as it was decided that the United States could sue the State of Texas, the case became one of fact, interesting or devoid of interest according to the nature of those facts. In this respect it is like other boundary disputes between the States, differing, An ordiif difference be insisted upon, in that treaties between foreign nations, not colonial nary charters, are the sources of title. The whole case turns upon the point from which dispute. a line shall be drawn east and west, and when that point is determined, the case is decided, although the suit is between the United States, which we fondly believe to be one of the great powers, and one of the States, united with forty-seven to make of their agent a great power. The proof to establish the dividing line between two sovereign jurisdictions is the proof to establish the line between two adjoining estates, and it only differs in name from such a suit.

Texas,

There are several treaties and an act of Congress having, as well be seen, the force of a treaty between the United States, on the one hand, and Texas, on the other, which are at once the source of title and the source of controversy. First, the treaty Treaties of February 22, 1819, between the United States and Spain; second, the treaty of with Spain, January 12, 1828, between the United States and Mexico, which latter country had Mexico, thrown off the domination of Spain, and had succeeded in its jurisdiction in this and part of the world, which treaty, however, was in the matter of boundaries identical 1819-38. with that of 1819 between the United States and Spain; third, the treaty of April 25, 1838, between the United States and the Republic of Texas; and fourth, the act of Congress, approved September 9, 1850, 'proposing to the State of Texas the establish- Act of ment of her northern boundaries, the relinquishment by the said State of all territory 1850. Congress, claimed by her exterior to said boundaries, and of all her claims upon the United States, and to establish a Territorial Government of New Mexico.'

The third and fourth articles of the treaty of February 22, 1819, between the United States and Spain, are the only ones material to the present question, and they are thus worded:

line.

Art. 3. The boundary line between the two countries, west of the Mississippi, shall begin on the Gulf of Mexico, at the mouth of the river Sabine, in the sea, continuing north, along the western bank of that river to the 32d degree of latitude; thence, by a line due north, to the degree of latitude where it strikes the Rio Roxo of Natchitoches, or Red River; then following the course of the Rio Roxo, westward, to The the degree of longitude 100 west from London and 23 from Washington; then, crossing treaty the said Red River, and running thence, by a line due north, to the river Arkansas; thence, following the course of the southern bank of the Arkansas, to its source, in latitude 42 north; and thence by that parallel of latitude, to the South Sea. The whole being as laid down in Melish's map of the United States, published at Philadelphia, improved to the first of January, 1818. But, if the source of the Arkansas River shall be found to fall north or south of latitude 42°, then the line shall run from the said source due south or north, as the case may be, till it meets the said parallel of latitude 42, and thence, along the said parallel, to the South Sea. All the islands in the Sabine, and the said Red and Arkansas Rivers, throughout the course thus described, to belong to the United States; but the use of the waters, and the navigation of the Sabine to the Sea, and of the said rivers Roxo and Arkansas, throughout the extent of the said boundary, on their respective banks, shall be common to the respective inhabitants of both nations.

The two high contracting parties agree to cede and renounce all their rights, claims, and pretensions, to the territories described by the said line; that is to say,

the United States hereby cede to His Catholic Majesty, and renounce forever all their rights, claims and pretensions to the territories lying west and south of the above-described line; and, in like manner, His Catholic Majesty cedes to the said United States all his rights, claims and pretensions to any territories east and north of the said line; and for himself, his heirs, and successors, renounces all claim to the said territories forever.

Art. 4. To fix this line with more precision, and to place the landmarks which shall designate exactly the limits of both nations, each of the contracting parties shall appoint a Commissioner and a Surveyor, who shall meet before the termination of one year, from the date of the ratification of this treaty, at Natchitoches, on the Red River, and proceed to run and mark the said line, from the mouth of the Sabine to the Red River, and from the Red River to the river Arkansas, and to ascertain the latitude of the source of the said river Arkansas, in conformity to what is above agreed upon and stipulated, and the line of latitude 42, to the South Sea; they shall make out plans, and keep journals of their proceedings, and the result agreed upon by them shall be considered as part of this treaty, and shall have the same force as if it were inserted therein. The two governments will amicably agree respecting the necessary articles to be furnished to those persons, and also as to their respective escorts, should such be deemed necessary. (8 Stat. 252, 254, 256.)1

A brief analysis of these two articles will not be out of place. The eastern boundary between the contracting parties was a line following the western bank of the Sabine River, thus vesting the United States with title to that stream to the 32nd degree of latitude. From this point the line is continued due north until it strikes the Red River. The Red River is not in doubt at this point, and the line follows the course of the Red River westward to its intersection with the 100th degree of longitude. If there were no doubt as to the identity of the river at this point, the streams is controversy between the States would not have arisen, because the boundary then

Which

of two

the true

'Red River'.

Treaty

refers to

crosses the river and proceeds due north along that meridian until it crosses the Arkansas River. But before the 100th meridian is reached, there are two streams, each claiming to be the Red River; or rather a northern branch called the North Fork of the Red River, which Texas claimed as the boundary and which, if accepted as such, would adjudge to Texas the disputed territory; and the South Fork of the Red River, which the United States claimed to be the main stream of the river, and if accepted as such by the Court would adjudge the tract of land in dispute to the United States.

In the next place, the whole region is to be understood as laid down by one, Melish's Melish, in his map of the United States published in Philadelphia in 1818, a map map of which was before and used by the negotiators in reaching an agreement. It is to be 1818, noted, however, that the 100th degree of longitude is specifically mentioned as forming the boundary between the Red River and the Arkansas River to the north, and it is to be presumed that the contracting parties referred to the Melish map as the best general description of territory with which they were unfamiliar, in that the map was taken as accurate in all respects. Inasmuch as the 100th meridian is inaccurately located on that map, and it is specifically stated by the court that ' that meridian, astronomically located, is more than 100 miles further west than is indicated by the Melish map' 2-a fact not seriously debated by counsel in the case, it is to be presumed that, when the contracting parties referred to the 100th meridian, they had

which

proves

curate.

to

in mind its exact location, on the familiar maxim that that is certain which can be rendered certain. This does not, of course, deprive the map of great authority in the decision of the case, because the negotiators had referred to it and the reference is incorporated in the text of the treaty; but it would seem to indicate that the geographer's configuration of the country is to be taken as accurate in general, not as necessarily accurate in all respects, and as decisive of natural land-marks, with which he might be inadequately acquainted, but not of scientific boundaries, as to which he was mistaken.

It is clear, however, that the 100th meridian, wherever found, is taken as the boundary, and it is a fact that such meridian crosses the Southern Fork claimed by the United States to be the main stream, and the North Fork of the Red River claimed by Texas as the river in question. This, as stated, is the crux of the controversy, and some light is thrown on it by the negotiations.

As in the case of a contract, so in the case of a treaty, there is an offer, often a series of offers, and an acceptance, and the offers show the intent of one or the other party, as the acceptance shows the intent of both. In the course of the negotiations Negotiapreceding the treaty, Mr. John Quincy Adams, then Secretary of State and later the tions with Spain, sixth President of the United States, made a proposal, under date of October 31, 1818. 1818, the terms of which are not necessary for present purposes, but which are very interesting as showing his conception of the Red River, or the branch thereof which he had in mind; for, after proposing the continuation of a line north from the Sabine until it strikes the Red River, he continues:

... thence, following the course of the said river, to its source, touching the chain of the Snow Mountains in latitude 37° 25′ north, longitude 106° 15' west, or thereabouts, as marked on Melish's map; 1

If the matter stopped here it would be interesting but not important, as it would only show the understanding of one of the negotiators as regards the source of the river. But the matter does not stop here, for, on February 1, 1819, the Spanish Minister thus wrote to Mr. Adams :

Having thus declared to you my readiness to meet the views of the United States in the essential point of their demand, I have to state to you that His Majesty is unable to agree to the admission of the Red River to its source, as proposed by you. This river rises within a few leagues of Santa Fé, the capital of New Mexico....2 The Melish map shows the Snow Mountains. The map also shows a stream in that region, and the South Fork of the Red River, nowadays commonly called the Prairie Dog River, flows in the region which Mr. Adams had in mind and justifies the objection stated by the Spanish Minister. The North Fork, on the contrary, is far to the north of this region and would not furnish a ground for the scruples of His Excellency, the Spanish Minister. Taking, however, the Red River as the boundary line, the Spanish Minister proposed to follow it westward to the 94th degree of longitude. Mr. Adams replied by suggesting the 102nd degree, and finally they compromised on a line from the point where the line drawn due north from the Sabine River strikes the Red River, thence westerly to the 100th meridian; and, although it is immaterial for present purposes, the 42nd degree of north latitude was adopted, instead of the 43rd degree, as proposed by Mr. Adams.

1 United States v. State of Texas (162 U.S. 1, 24).

2 Ibid. (162 U.S. 1, 25).