Decree for an account. and might be considered as out of the case. West Virginia, therefore, presented its answer, and, in pursuance of the prayer of the bill, the nature and requirements of the case, counsel for both States submitted and sustained on argument forms of decree referring the controversy to a master. This is the usual course on a bill for an accounting between private litigants, as the court cannot suspend its other business in order to examine detailed and complicated accounts, even if the judge were competent to act as an expert accountant, as one is needed in such a matter. It was agreed that a master be appointed to examine the evidence in the possession of both States, in order to ascertain the entire indebtedness of the State of Virginia on the 1st day of January 1861, the amounts with which one or the other should be credited or debited, or both, and to determine the equitable amount which West Virginia should assume and satisfy: the forms of decrees were similar although not identical; the differences went rather to matters of procedure than to a question of principle, and were concerned largely with paragraphs 3 and 4 of complainant's and paragraph 7 of defendant's draft. This phase of the subject is purely technical, and the purpose of the drafts was to lay before the court the views of opposing counsel, in order that the court might take note of them in the decree which it was to frame for the direction of the master. It seems inadvisable to note differences of detail, when the principle was agreed on, and therefore the decree of the court is reproduced in extenso, not merely for the convenience of the reader but as the model of procedure to be followed in controversies of this kind, whether they be between States of the American Union or nations of the society of nations. The decree of the court as announced by the Chief Justice (not mentioning him by name, as is the custom when purely formal action is taken) was announced on May 4, 1908. The first part of the decree lays down expressly the principles which shall guide the master-Charles E. Littlefield, formerly Attorney-General and member of Congress from Maine, then engaged in the practice of law in the city of New York-in the difficult and intricate questions which it became his duty to examine, and, inferentially, the principles of liability of each of the litigating parties. This portion of the decree is as follows: This cause having been heard upon the pleadings and accompanying exhibits, it is, on consideration, ordered that it be referred to a special master, to be hereinafter designated, to ascertain and report to the court: 1. The amount of the public debt of the Commonwealth of Virginia on the first day of January, 1861, stating specifically how and in what form the same was evidenced, by what authority of law and for what purposes the same was created, and the dates and nature of the bonds or other evidence of said indebtedness. 2. The extent and value of the territory of Virginia and of West Virginia June 20, 1863, and the population thereof, with and without slaves, separately. 3. All expenditures made by the Commonwealth of Virginia within the territory now constituting the State of West Virginia since any part of the debt was contracted. 4. Such proportion of the ordinary expenses of the government of Virginia since any of said debt was contracted, as was properly assignable to the counties which were created into the State of West Virginia on the basis of the average total population of Virginia, with and without slaves, as shown by the census of the United States. 5. And also on the basis of the fair estimated valuation of the property, real 6. All moneys paid into the treasury of the Commonwealth from the counties included within the State of West Virginia during the period prior to the admission of the latter State into the Union. 7. The amount and value of all money, property, stocks, and credits which West Virginia received from the Commonwealth of Virginia, not embraced in any of the preceding items and not including any property, stocks or credits which were obtained or acquired by the Commonwealth after the date of the organization of the restored government of Virginia, together with the nature and description thereof. The answers to these inquiries to be without prejudice to any question in the cause.1 On June 1 of the same year a motion was made to amend the second paragraph, but it only resulted in the change of a word, substituting the extent and assessed valuation of the territory' for the phrase which originally ran the extent and value of the territory'. It is to be observed that the answers to the inquiries were to be without prejudice, the meaning of which was that the answers were to be the findings of the master, and that, although they bound him, they did not bind counsel or court; for counsel could take exception to any or all of them, argue and debate the matter before the court when the report of the master was up for consideration, and the court itself could accept, reject, or modify the report in accordance with the views of counsel or with its own judgement. The accounting was a preliminary and indispensable proceeding, but it was only a step in the case. If the decree had stopped with the first seven numbered paragraphs, the master could indeed have considered himself as required to produce proverbial bricks without straw, for without the co-operation of the States he could not hope to present a report worthy of the court's consideration. Therefore, the decree thus proceeds, requiring the co-operation of the States in litigation: It is further ordered that the Commonwealth of Virginia and the State of West The Virginia shall each, when required, produce before the master, upon oath, all such States records, books, papers and public documents as may be in their possession or under to protheir control, and which may, in his judgment, be pertinent to the said inquiries duce all and accounts, or any of them. docu And the master is authorized to make, or cause to be made, such examination ments. as he may deem desirable of the books of account, vouchers, documents and public records of either State relating to the inquiries he is herein directed to make, and to cause copies thereof or extracts therefrom to be made for use in making up his report. All public records, published by authority of the Commonwealth of Virginia prior to the seventeenth day of April, 1861, and all papers and documents and other matter constituting parts of the public files and records of Virginia prior to the date aforesaid, which in the judgment of the master may be relevant and pertinent to any of said inquiries, or copies thereof, if duly authenticated, may be used in evidence and considered by the master, but all such evidence shall be subject to exceptions to its competency. The public acts and records of the two States since the admission of West Virginia into the Union shall be evidence, if pertinent and duly authenticated, but all such evidence tendered by either party shall be subject to proper legal exceptions to its competency.2 In addition, the master was vested with certain defined powers and authorized to The master em to call witnesses, &c. expenses, and the master was further authorized to avail himself of the AttorneysGeneral of the two States in making the notices which might be required in connexion with the decree : The master is empowered to summon any persons whose testimony he or either party may deem to be material, and to cause their depositions to be taken before him, or by a notary public or other officer authorized to take the same, after reasonable notice to the adverse party. The master is authorized and empowered, subject to the approval of the Chief Justice, to employ such stenographers and other clerical assistants as he may find it desirable to employ in order to the prompt and efficient execution of this order of reference, and to agree with such stenographers and typewriters and clerical assistants upon such compensation to be made to them as the master may consider reasonable and just. He is authorized to direct their compensation to be paid out of the funds to be deposited to the credit of this cause. The complainant shall cause the sum of five thousand dollars to be deposited with the marshal of this court to the credit of this cause, and such further sums as from time to time may be required, on account of the costs and expenses of executing this decree; and the master is authorized from time to time to draw upon the fund so deposited by Virginia for the compensation of the stenographers, typewriters and other clerical assistants whom he may employ, and for any other costs and expenses, including stationery and printing, which may in his judgment be necessary to be incurred in executing this order of reference. The said marshal shall receive such commission for his services in receiving and disbursing the funds so deposited with him as may be allowed by the court, and he will make a report of his transactions, receipts and disbursements in the premises. Any notices to be given in connection with the execution of this decree may be given by and to the Attorneys-General of the respective States.1 Large bodies move slowly, and States are large bodies; and even individuals, engaged in a great cause, are sometimes led to follow the example of their betters. Therefore, to bring this controversy to an end, which had already lasted some forty years, the court enjoined speed upon the master, in order that his report might be presented at the earliest moment consistent with accuracy, the case be considered by counsel and court, and the cause itself progress toward a conclusion. Therefore the decree further and finally provided that : The master will make his report with all convenient speed and transmit therewith the evidence on which he proceeds, and is to be at liberty to state any special circumstances he considers of importance, and to state such alternative accounts as may be desired by either of the parties, subject to the direction of the court. And the court reserves the consideration of the allowance of interest; of the costs of this suit, and all further directions until after the master has made his report ; either of the parties to be at liberty to apply to the court as they shall be advised. 64. State of Washington v. State of Oregon. (211 U.S. 127) 1908. On February 26, 1906, the State of Washington, one of the youngest of the States of the American Union, filed its complaint against the State of Oregon, its neighbour of the South, and itself one of the younger States, in order to determine 1 State of Virginia v. State of West Virginia (209 U.S. 514, 536-7). Ibid. (209 U.S. 514, 537). For the succeeding phase of this case see State of Virginia v. the boundary line between them. The pleadings proper in such cases were filed; by A bounconsent of the parties testimony was taken before a commissioner, and on these dary dispute. pleadings and proofs the case was argued and submitted to the decision of the Supreme Court. case. In order to understand the dispute between the States in controversy, it will be History advisable to quote the description of the northern boundary of Oregon and of the of the southern boundary of Washington at the date of their admission into the Union. On August 14, 1848, the Territory of Oregon was established, and on March 2, 1853, the Territory of Washington, including that portion of Oregon Territory north of the middle of the main channel of the Columbia River. On February 14, 1859, the Admisbalance of the Oregon Territory was admitted as a State of the Union, and itsboundary, Oregon, as far as it is material to the present controversy, was stated as follows: sion of 1859. tion of the 'Beginning one marine league at sea due west from the point where the forty- Definisecond parallel of north latitude intersects the same; thence northerly, at the same distance from the line of the coast, lying west and opposite the State, including all bounislands within the jurisdiction of the United States, to a point due west and opposite dary. the middle of the north ship channel of the Columbia River; thence easterly, to and up the middle channel of said river, and, where it is divided by islands, up the middle of the widest channel thereof, to a point near Fort Walla Walla.'1 sion of On February 22, 1889, an act was passed, appropriately on Washington's AdmisBirthday, providing for the admission of the State of Washington. On November II, Washing1889, the President, in pursuance of Section 8 of this statute, issued his proclamation, ton, 1889. declaring Washington to be duly admitted into the Union. The portion of the boundary material to the present discussion is thus described in the constitution of that State, approved by Congress, to which body the constitution of a proposed State is submitted for approval, and must be approved, before that State is admitted : the boundary. Beginning at a point in the Pacific Ocean one marine league due west of and Definiopposite the middle of the mouth of the north ship channel of the Columbia River, tion of thence running easterly to and up the middle channel of said river and where it is divided by islands up the middle of the widest channel thereof to where the fortysixth parallel of north latitude crosses said river, near the mouth of the Walla Walla River.2 It will be observed that the description of the northern boundary of Oregon, contained in the act of Congress admitting it as a State, is so similar as to be practically identical with this description. lar entrances to Columbia River. The dispute between the two States is due to the fact that there are two entrances Two simito the Columbia River, both of which were navigable and indifferently used at the time of the admission of Oregon as a State, and of approximately the same depth. the As Mr. Justice Brewer says, in delivering the unanimous opinion of the Court, the use of either channel depended largely upon the prevailing wind, so that it would be hard to say which was the most important, so surpassing in importance the other as to be properly called the main channel.' One mentioned in the description was properly called from its situation northern'; the other, not mentioned in the act Gradual of Congress or the constitution, the 'southern' channel. In the course of years, it changes is impossible to say just when, as the change appears to have taken place so slowly channels. State of Washington v. State of Oregon (211 U.S. 127, 128). 2 Ibid. (211 U.S. 127, 128-9). 3 Ibid. (211 U.S. 127, 135). in the Grant of Sand Oregon to the United States, 1864. the doc trine of the thalweg (vide P. 419, ante). as to be imperceptible, the northern channel became less navigable and seldom used by vessels of the largest size, so that the State of Washington found itself using the southern channel which had become the main avenue of commerce. In order to reach the ocean its shipping was obliged to pass, not through a highway common to both States, but within a channel to the south of Sand Island claimed by Oregon to be within the exclusive jurisdiction of that State. Congress might have chosen either the middle of the north or of the south channel as a boundary between the two States, but instead of so doing it specifically selected the north ship channel, thereby excluding the southern channel, and as was natural in such a case, the point from which the line was to be drawn dividing Oregon from the territory on the north was 'due west of and opposite the middle of the mouth of the north ship channel of the Columbia River'. In the Constitution of Washington the line was to be drawn at a 'point . . . due west of and opposite the middle of the mouth of the north ship channel of the Columbia River'. In each case the north ship channel is expressly chosen in preference to the south channel. These facts would seem to be decisive of the controversy, but there is a transaction in 1864 on the part of Oregon, then a State, and of the United States, then possessed of the territory of Washington, not admitted as a State until 25 years later. On October 21, 1864, Oregon passed an act granting to the United States all right and interest of the State of Oregon, in and to the land in front of Fort Stevens and Point Adams situate in this State, and subject to overflow in high and low tide, and also to Sand Island, situate at the mouth of the Columbia River in this State; the said island being subject to overflow between high and low tide. The United States accepted the grant, which it could not or would not have done if it had possessed title to the subject matter of the grant, thus recognizing Sand Island to be within the jurisdiction of Oregon, and as a necessary consequence, that the territory to the south of Sand Island was also within that State's jurisdiction. To overcome the provisions of the Act of Congress admitting Oregon, and the statement in the Constitution of Washington as to the effect of the grant of said Washing- island to and its acceptance by the United States, counsel of the State of Washington ton pleads attempted to set up a doctrine applicable when the middle of a river has been made the boundary between States, that' When a navigable river constitutes the boundary between two independent States, the line, defining the point at which the jurisdiction of the two separates, is well established to be the middle of the main channel of the stream. The preservation by each of its equal right in the navigation of the stream is the subject of paramount interest. It is therefore laid down in all the recognized treatises on international law of modern times that the middle of the channel of the stream marks the true boundary between the adjoining States up to which each State will on its side exercise jurisdiction'. In support of this contention Counsel quoted the case of Iowa v. Illinois (147 U.S. 1), decided in 1893; Missouri v. Nebraska (196 U.S. 23), decided in 1904; and Louisiana v. Mississippi (202 U.S. 1), decided in 1906.1 Judge ment of the Court in favour of Oregon. Mr. Justice Brewer, without questioning the authority of these cases, had no difficulty in showing that they were not in point: But in these cases the boundary named was the middle of the main channel of the river', or 'the middle of the river', and it was upon such a description that it |