exhibit any new proof of title not familiar to all at the period of the controversy.

I think from what has been said, it may now confidently be asserted that Virginia had no title to the country west of the Allegheny Mountains, certainly no such clear and conclusive proof of title as the law of nations require her to make, as the sole condition on which she can sustain as against Ohio, an exclusive right to the whole river. But, here, it may be, and has been said, that the deed of cession admits title in the grantor that the United States, and all claiming under them, are estopped from going behind it to inquire into the original right. This objection places a great public question upon the narrow basis of a mere legal technicality. When refuge is taken behind it, what was said by the Supreme Court, in the case of Handley's lessee vs. Anthony, already cited, may be applied with much force, that "in great questions which concern the boundaries of States, where great national boundaries are established in general terms, with a view to public convenience and the avoidance of controversy, we think the great object, where it can be distinctly perceived, ought not to be defeated by those technical perplexities, which may sometimes influence contracts between individuals." But if it be admitted that the doctrine of estoppels recognized by the law of nations, as applicable to a treaty, deed, or act of cession by one independent sovereignty to another, still it would not be applicable to this deed of cession. If this were a mere naked deed of cession, or conveyance of the country, without reference to any extrinsic or antecedent fact, the question. would fairly and fully arise whether the law would permit either party to resort to the antecedent or extrinsic facts which induced one party to make and the other to accept the deed for the purpose of putting a construction on it. recitals of facts or motives, or reference to them, then the facts recited or referred to, become a part of the deed, and we

is

thus

But if the deed contains

have an undoubted right to look into the facts to which reference is made, and give them the same weight and effect as though the matter referred to were incorporated into the instrument at large. Now, this deed of cession is of the latter class, and begins by reciting in full the act of assembly of Virginia of the 20th of October,

1783, which empowered her delegates in Congress to execute the deed. That act is not only a part of the deed, but it is the sole authority on which the validity of the deed rests. It is what is commonly called the power of attorney to make the conveyance. This act of assembly thus recited at large in the deed begins by a recital of facts, and of the motives that induced the Legislature to pass it. And for its motives, it refers to certain public acts or transactions, which being referred to, we have a right to look. into, and treat as a part of the deed. The first public act thus referred to is the resolution of Congress of September 6, 1780, recommending to the States setting up claims to vacant lands to make cessions of them to the confederacy.

I have already shown that when that resolution was passed, as well as prior to that time when the articles of confederation were debated, Congress decided that they would not inquire into the validity of the claim of any State; but that instead of such inquiry, they proposed the States should, by way of compromise, one and all convey their claims, such as they might be, to the confederacy, and in that way quiet the title and settle the controversy among the States about the crown lands. I have also shown that it was on that express ground that, two years afterwards, Virginia declined to exhibit before a committee of Congress her title to the country on the east side of the Ohio, which, by her first act of cession, she required Congress to guarantee toher, insisting that the resolution of 1780, in compliance with which she passed her first, as well as second act of cession, was founded on the very basis that no inquiry into the right or title of any State was to be made. The committee, on the contrary, thought that case formed an exception to this understanding, and that if Virginia required a guarantee of country which she did not cede, that Congress ought to look into her title before becoming responsible for it. In the next place, the Virginia act, recited in the deed, refers to the proceeding of Congress of September 13, 1783, which thus becomes in law a part also of the deed. That proceeding, or act of Congress, as it is called in the Virginia law, was nothing more nor less than a report of Congress, which has been already presented at large. It was a report coming from a committee, of which Mr. Madison, we have

seen, was one, upon the first Virginia act of cession, rejecting it, and explaining to Virginia the reasons for not accepting that act, and setting forth the terms on which the confederacy would accept a cession from that State. The report reiterates and declares what the delegates of Virginia had before insisted upon as a basis of a compromise, "that by the acts of Congress, it appears to have been their intention, which the committee cannot but approve, to avoid all discussion of territorial rights of individual States, and only to recommend and accept a cession of their claims, whatsoever they might be, to vacant territory." The act of Virginia then goes on to declare that she passed it in conformity to this recommendation of Congress. In view of these facts, thus made, by recitals and references, a part of the deed of cession, how is it possible for Virginia to say that Congress, by accepting the deed of cession, admitted her title to be good? Might not the same claim, with equal propriety, be set up in favor of the cession of New York, Massachusetts, and Connecticut, who also became parties to this same compromise, and ceded their claims in response to the same resolutions of Congress? The cession of all put together make one great result one whole-one compromise of conflicting pretensions. It may be further added that, as the last act of cession refers to the report of Congress of 1783 to show what motives governed Virginia in passing it, and as that report, in its turn, refers in general terms to the prior acts of Congress on that subject, to show their intention, the whole body of the prior proceedings of Congress are thus, in fact, laid open to our examination, and we have a right to look into them all in giving to the deed of Virginia its legal effect. I shall hereafter state what the law of nations defines a compromise to be. I shall, for the present, assume that the cession of Virginia, and of the other States, was the result of a compromise, in which, in accepting the cession, the validity of the title of no one of the ceding States was admitted, or intended to be admitted, by the confederacy; but the contrary was expressly declared and understood as one of the terms and conditions of arrangement. It follows from this, that in all controversies about the title to the country that was in dispute (being all west of the Alleghenies), we are bound either to look to this compro

the

mise as the origin and basis of the title, or, if not, then we are at liberty to go back into the prior title, without regard to the cession. I have already shown that Virginia had no title prior to that time, and will not repeat what has been said on that subject. In my opinion, the compromise is the foundation of the title, and both parties are precluded from going back of it to inquire into the prior claim. The deed of cession is to have a legal effect and operation, according to the terms of the compromise, and the understanding of the parties at the time it was entered into. Both parties to the cession claimed to own the country on both sides of the Ohio. Both expressly agreed that the title of neither should be inquired into by the other that no decision should be made or opinion expressed by either as to the goodness of the title of the other; that the dispute should be settled by leaving Virginia in possession of the territory on one side of the Ohio, the United States taking that on the other side of the river. Before that time both set up a claim, but neither had an admitted title to either side of the river. In this view of it, the title to each side of the river is co-eval with the other. Neither can assert a prior title, and, as the parties then agreed they would not look into the validity of the title of either, both are bound by the agreement, and must live by it. If the title on each side of the river be co-eval, I will show hereafter where the law of nations will fix the boundary, after having shown what that law defines a compromise to be. "Compromise is a method of bringing disputes to a peaceable termination. It is an agreement by which, without precisely deciding on the justice of the jarring pretensions, the parties recede on both sides, and determine what share each shall have of the thing in dispute, or agree to give it entirely to one of the claimants on condition of certain indemnifications granted to the other." (Vattel's Law of Nations, book 2, chap. 18, sec. 327.)

The first of the two modes of compromise here stated by Vattel describes with perfect accuracy the condition of the parties to this dispute, and their manner of settling it. The confederacy, in its own right and as the grantee of New York, claimed the whole country west of the mountains on both sides of the Ohio. Virginia claimed the same. "Without precisely deciding

on the justice of their jarring pretensions, the parties recede on both sides, and determine what share each shall have of the thing in dispute." Where indeterminate rights are thus rendered definite, and a dispute afterward arises about them, common sense and the plainest necessity dictate that both parties must be referred back to the compromise, that is to say, to the time when the right was rendered definite, and no further—to go back of it is to undo the compromise, render it a nullity, and again involve the parties in the very difficulty which it was the aim and end of the compromise to avoid. Mr Madison was for a long time. earnestly engaged in endeavoring to bring about a compromise of this dangerous dispute, and the country owes him an infinite debt of gratitude for his labors in so good a cause. evidenced not merely by his course in Congress, but the Madison papers, show that he had it near to his heart, and remained in Congress to effect it. In a letter to Mr. Edmund Randolph, written on the 10th of September, 1782, he says, "Every review I take of the western territory produces fresh conviction that it is the true policy of Virginia, as well as of the United States, to bring the dispute to a friendly compromise." It was the next

This is

year terminated in the mode he desired. The application to this state of facts of the principle already so fully established that "where a great river is the boundary between two nations or States, if the original property is in neither, and there be no convention respecting it, each hold to the middle of the stream," is both easy and unavoidable. It is also just and equitable, promoting the convenience of all, and doing injury to none. I will now bring this long argument to a conclusion, by remarking that the channel of the river must have been understood to be the boundary at the time of the arrangement. One of the very first, and, immeasurably, the most important act ever passed by Congress respecting the ceded territory puts a practical construction on the cession wholly irreconcilable with the claim now set of 1787 for the erection of a government in the territory northup by Virginia to the whole river. In the celebrated ordinance west of the Ohio, it is not merely declared, but made an article of compact between the people of the territory and the people of the United States, irrevocable except by common consent, that