southern boundary of that State extended farther to the south than counsel for Kentucky were willing to concede, who insisted that its jurisdiction, including the Ohio River, was with the channel of that river in 1792 when Kentucky, with definite boundaries, was admitted as a State of the Union, and that the subsequent change in its channel affected neither the boundary nor the jurisdiction of the Statea contention which met with the approval of the Supreme Court. In 1895 counsel Report of for the two States besought the Supreme Court to appoint a commission to run the boundary line between the contending parties in the disputed territory north of the tract known as Green River Island, Indiana v. Kentucky (159 U.S. 275). The next year counsel for Indiana and Kentucky again appeared before the bar of the court to consider the report of the commissioners, Indiana moving to confirm it, Kentucky objecting to it in certain particulars. This is the present case (163 U.S. 270). The objections of Kentucky, however, were of a formal nature, and were not insisted upon. To understand them, however, and the work of the commission, composed of three persons recommended by the parties and appointed by the court, it is necessary to consider a small portion of the report. the commissioners presented (vide p. 303, ante). A survey of the region in dispute was made by the Government of the United States in 1805 and 1806. A competent surveyor was employed by the commission to re-establish the line of that survey, which was done from the original notes of the survey. The surveyor employed by the commission made a map of the region, showing the result of his labours, including those of his predecessors, and presented a report to the commissioners, which, they say, satisfied them on the following three points : The close accord of the reestablished meander line with the existing crest of the high bank was strong proof that the line as reestablished was in fact a very close approximation in location to the location of the line as originally run; it also indicated that the original meander line was practically along the crest of the high water bank, and not along the low water line, and further, that the crest of the bank along the Indiana side of the depression as it exists to-day must be nearly as it was at the time of the original survey.1 Upon an examination of the testimony, the commissioners reached the conclusion that, given local conditions,' the water of a low stage would have covered the middle half of the space between the crest and the high banks,' and that a fair allowance should be made for the space covered by the bank slopes extending from the Ohio banks to the low water line '.2 They therefore decided to lay, as a trial line, ' a line parallel to the meander line of the survey of 1805 and 1806, as reëstablished, and at a distance of two chains from it, measured toward the island'. Counsel for Indiana and Kentucky were invited to present in writing, if they so desired, any statements to prove that such line was not approximately the low water line in the year 1792'.4 Counsel on behalf of Kentucky stated at a meeting of the commissioners, to which counsel for both States were invited, that while he had no special objection. to the test line tentatively adopted, although it did not seem to allow for accretions on the Indiana bank of the river between June 1, 1792 (when the State of Kentucky was admitted to the Union of the States), and the year 1806 (the date of the Congressional survey), he suggested and requested that the line finally adopted 'be 1 State of Indiana v. State of Kentucky (163 U.S. 520, 523). a Ibid. (163 U.S. 520, 523). extended upon such course and for such distance . . . until it intersects the present low water line of the Ohio River both at the upper and lower ends '.1 That is to say, to the points where the low-water mark of 1792 coincided with the low-water mark at the present time. After further consideration of the subject, the commissioners reported: It was decided that your commissioners were not authorized to lay down any line beyond the upper and lower limits of Green River Island as it existed in 1792, and it was decided to adopt for recommendation the trial line within those limits as marked, with a slight change at the extreme upper end, to allow for what was undoubtedly a flat bank slope, it being upon a point.2 Placing posts at the initial and terminal points of the line, and at points where changes in direction occurred, the commissioners recommended the following procedure to mark the boundary line of 1792, re-established in 1895: Three suitable points should be selected upon the line, one near the upper end, one near the middle, and one near the lower end. At each of these points a monument should be erected which should consist of a stone of durable quality, six feet long, and eighteen inches square in cross section. This stone should be imbedded in a well made foundation of concrete. The concrete foundation to be six feet square and four feet deep, the upper surface being at the surface of the ground. The stone should be placed upright so as to extend three feet into the concrete, and have three feet above the gound. Upon one side of the stone should be cut the word Indiana', and upon the opposite side the word Kentucky'. Between the stone monuments, at each turning point of the line, there should be placed an iron post six feet long, and six inches in diameter of cross section. The iron post to be imbedded in a foundation of concrete two feet square and three and one half feet deep; the top of the concrete to be at the surface of the ground, and the post standing upright in the concrete, the top of the post being three feet above the gronud. The estimated cost of the above described monuments, including placing the same, is $600.00.3 After consideration of the report and of the objections, the Court rendered the following decree, per Mr. Chief Justice Fuller: It is ordered, adjudged, and decreed that the boundary line between said Report States of Indiana and Kentucky in controversy herein be, and it is hereby, estab- confirmed lished and declared to be as delineated and set forth in said report and the map by the accompanying the same and referred to therein, which map is hereby directed to be filed as a part of this decree. It is further ordered, adjudged, and decreed that the said boundary line as described in said report and as delineated on said map, and now marked by cedar posts, be permanently marked as recommended in said report, with all convenient speed, and that said commission be continued for that purpose, and make report thereon to this court, and that this cause be retained until such report is made. Court. It is further ordered, adjudged and decreed that the compensation and expenses Costs to of the commissioners and the expenses attendant on the discharge of their duties, be shared up to this time, be, and they are hereby, allowed at the sum of two thousand two equally. hundred and thirty-six dollars and sixty cents in accordance with their report, and that said charges and expenses and the costs of this suit to be taxed be equally divided between the parties hereto. And it is further ordered, adjudged, and decreed that this decree is without prejudice to further proceedings as either of the parties may be advised for the 1 State of Indiana v. State of Kentucky (163 U.S. 520, 528). 2 Ibid. (163 U.S. 520, 524). 3 Ibid. (163 U.S. 520, 527). Cominissioners' report confirmed. determination of such part of the boundary line between said States as may not have been settled by this decree under the pleadings of this case. And it is further ordered, adjudged, and decreed that the clerk of this court do forthwith transmit to the chief magistrates of the States of Kentucky and Indiana copies of this decree duly authenticated under the seal of this court.1 The procedure followed in judicial settlement is very simple, very direct, very businesslike, very inexpensive, and where courts rule, forts bristling with cannon do not mark the boundaries between states. 43. State of Missouri v. State of Iowa. (165 U.S. 118) 1897. The fourth and final phase of the northern boundary dispute between Missouri and Iowa was decided by the Supreme Court in 1897 by the approval of the report of the commissioners appointed by the Court on February 3, 1896. The only dispute between the parties was as to some additional expenses incurred by one of the commissioners, which, however, were allowed by the court. The decree of the court approving the report of the commissioners, re-running and re-marking the line and establishing it as re-run and re-marked as the boundary line between the two States was announced, as in the previous case, by Mr. Chief Justice Fuller, speaking for his brethren, who said: And it is ordered, adjudged and decreed that the boundary line between said States of Missouri and Iowa in controversy herein be, and it is hereby, established and declared to be, as delineated and set forth in said report. It is further ordered, adjudged and decreed that the compensation and expenses Costs to of the commissioners and the expenditures attendant upon the discharge of their be shared duties be, and they are hereby, allowed at the sum of five thousand two hundred and seventy-three dollars and fifty-six cents ($5,273.56), in accordance with their report as confirmed as aforesaid, and that said charges and expenses with the costs of this suit to be taxed be equally divided between the parties hereto. equally. And it is further ordered, adjudged and decreed that the clerk of this court forthwith transmit to the Chief Magistrates of the States of Missouri and Iowa copies of this decree, duly authenticated under the seal of this court.2 44. State of Indiana v. State of Kentucky. It will be recalled that, in the third phase of the boundary dispute between Indiana and Kentucky (163 U.S. 520), the court directed the commissioners to draw the line in accordance with their report, presented to and approved by the court on that occasion. The court retained jurisdiction of the case in order that the final report of the commissioners should be presented and a final decree entered confirming the boundary line as drawn in the first report and as marked in the second, leaving the parties in litigation free, should they so desire, to move the court to have the entire boundary line drawn between the States. Counsel, however, did not move 1 State of Indiana v. State of Kentucky (163 U.S. 520, 536-7). to prolong the controversy in order to prolong the line. With their approval the court therefore approved the report of the commissioners and entered, per Mr. Chief Justice Fuller, the following final decision in this fourth and last phase of the boundary dispute between Indiana and Kentucky: It is ordered, adjudged and decreed that their said report this day filed be, and Final dethe same is hereby, affirmed. It is further ordered, adjudged and decreed that the compensation of the commissioners and expenses attendant upon the discharge of their duties in permanently marking said line as directed by the decree of May 18, 1896, be, and the same are hereby, allowed the sum of one thousand one hundred and twenty-two dollars $1,122), in accordance with their report, and that said charges and expenses and the costs of this suit to be taxed be equally divided between the parties hereto. And it is further ordered, adjudged and decreed that the clerk of this court do forthwith transmit to the Chief Magistrates of the States of Kentucky and Indiana copies of this decree, duly authenticated, under the seal of this court.1 cree in the case. ments on the pre ceding group of cases. It will be observed that the cases included in this section have confirmed, if they Comhave not enlarged, the jurisdiction previously exercised by the Supreme Court in pursuance of the express grant of jurisdiction in controversies between States of the Union and controversies to which the United States should be a party. The expression' confirmed' is used advisedly, inasmuch as, in United States v. North Carolina (136 U.S. 211), the Supreme Court entertained, without discussion, and not merely with the consent, but at the request of counsel, a controversy between the United States, on the one hand, and North Carolina, one of these United States, on the other. The right to do so, however, unquestioned in that case, did not pass unchallenged, and in the leading case of United States v. Texas (143 U.S. 621), the Court of the States confirmed its action in accepting jurisdiction of and deciding a controversy between two States, one of which, as has been previously said, is admittedly sovereign and the other sovereign except for the exercise of the powers which it voluntarily renounced in behalf of all of the States of this more perfect Union. The Supreme Court of the United States, therefore, is not only competent to decide controversies between States of the Union, but between the United States and States of the Union, whether the United States be plaintiff or whether the United States be a defendant. For in the former case it is presumed that the States of the Union, in the constitutional grant of power, gave a general consent to be sued, thus authorizing the United States to appear as a plaintiff, and by act of those States in Congress assembled gave consent that the instrument of their creation, namely, the United States, should be sued in the Court of Claims in certain categories of disputes by a person, including necessarily therein a State. Because of this special consent, the United States can be and has been summoned to the court as defendant and judgement for and against the United States has been affirmed by the Supreme Court, to which an appeal lies from the judgement of the Court of Claims: United States v. State of Louisiana (123 U.S. 32), United States v. State of Louisiana (127 U.S. 182), State of Indiana v. United States (148 U.S. 148), United States v. State of New York (160 U.S. 598). This more perfect Union of ours, worthy of consideration by the society of nations, which may not, however, desire such a close or perfect one, is indeed, in Chief Justice Marshall's telling phrase, a government of laws, not of men. 1 State of Indiana v. State of Kentucky (167 U.S. 270, 274). A new group of cases. VIII. DEEPENING CONFIDENCE OF THE STATES EXTENDS THE USEFUL- 45. State of Louisiana v. State of Texas. With Louisiana v. Texas (176 U.S. 1), decided in 1900, a new group begins. It is therefore natural that the jurisdiction of the court should be questioned and that the first of the series should be taken up singly and solely with the question of jurisdiction. Although, in this first of a new series, the jurisdiction was denied -and it may therefore seem to be negative-a more thoughtful examination of the complaint shows that the court refused to entertain the bill, not because jurisdiction was lacking to accept it if properly framed, but because the bill in its form as presented did not set forth to the court facts that would justify the exercise of its jurisdiction, which Mr. Chief Justice Fuller, speaking for the court, was careful to analyse in the light of the origin of the court, and in the light of cases adjudged, to confirm. And notwithstanding the demurrer interposed by the State of Texas, the court really sustained it as to the bill, not as to the jurisdiction of the court. As in the leading case of Rhode Island v. Massachusetts (12 Peters 657), the opinion of Mr. Justice Baldwin deals with the question of jurisdiction and the reasons for the creation of the court, so in this case of Louisiana v. Texas, the leading one of the new series, the opinion of the Chief Justice deals almost exclusively with the question of jurisdiction, the origin, nature, and functions of the court. The opening paragraph of the official report thus states the form in which the case was presented in 1899 to the Supreme Court : The State of Louisiana by her Governor applied to this court for leave to file a bill of complaint against the State of Texas, her Governor and her health officer. Argument was had on objections to granting leave, but it appearing to the court the better course in this instance, leave was granted, and the bill filed, whereupon defendants demurred, and the cause was submitted on the oral argument already had and printed briefs.1 The argument of counsel on behalf of Texas upon the motion of Louisiana for leave to file the bill was, if not irregular, contrary to the practice of the court, which presumes that a State does not file a bill for light or trivial reasons, much less for none at all, and, because of the dignity of the State, only allows objection to be made to the complaint after it has been filed, instead of on the motion to file. The procedure of the court is admirably stated in the little case of State of Georgia v. Grant (6 Wallace, 241), decided in 1867, in which Mr. Carpenter, then at the bar and later a Senator of the United States from Wisconsin, desired to know whether it would be regular for him to oppose this motion for leave if he should, on seeing and considering the bill desire to do so'. To this inquiry Mr. Chief Justice Chase, speaking for his brethren, replied: The court has adopted no rules governing suits in cases of original jurisdiction. In cases of equity, however, it has been the usual practice to hear a motion in behalf of the complainant for leave to file the bill, and, leave having been given, subsequent |