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Sabine, and the southern banks of the said Red and Arkansas rivers, throughout the line thus described, to belong to Spain. And the United States hereby cede to his Catholic majesty all their rights, claims, and pretensions to the territories lying west and south of the above-described line; and his Catholic majesty cedes to the said United States all his rights, claims, and pretensions to any territories east and north of said line, and for himself, his heirs and successors, renounces all claims to said territories forever." The Spanish minister required that "the boundary between the two countries shall be the middle of the rivers, and that the navigation of the said rivers shall be common to both countries." Mr. Adams replied that the United States had always intended that "the property of the river should belong to them," and he insisted on that point "as an essential condition, as the means of avoiding all collision, and as a principle adopted henceforth by the United States in its treaties with its neighbors." He agreed, however, "that the navigation of the said rivers to the sea shall be common to both people." The Spanish minister assented "to the 100th degree of longitude, and, to remove all difficulties, to admit the 42d instead of the 43d degree of latitude from the Arkansas to the Pacific Ocean." Ann. Cong. Append. (16th Cong., 2d Sess.) 2120, 2121, 2123.

We have alluded to this diplomatic correspondence to show the circumstances under which the treaty of 1819 was made, and to bring out distinctly two facts that are of some importance in the present discussion: (1) That the negotiators had access to the map of Melish, improved to 1818, and published at Philadelphia. (2) That the river referred to in the correspondence as "Red River" was believed by the negotiators to have its source near Santa Fé and the Snow Mountains.

This brings us to the treaty itself. Its third and fourth articles are in these words:

"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 the 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 degree of longitude 100 west from London and 23 from Washington; then, crossing 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 riv

er 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.

So much of the Melish map of 1818 as is necessary to show its bearing on the present inquiry is reproduced on the next page.

It may be observed here that the 100th meridian of longitude is inaccurately located on this map. That meridian, astronomically located, is more than one hundred miles further west than is indicated by the Melish map. This fact is clearly shown by the record, and is not seriously questioned.

By the treaty of 1828 between the United States of America and the United Mexican States, concluded January 12, 1828, the divid

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ing limits of the respective countries were declared to be the same as those fixed by the treaty of 1819. 8 Stat. 372.

The republic of Texas, by an act passed December 19, 1836, declared that the civil and political jurisdiction of that republic extended to the following boundaries, to wit: "Beginning at the mouth of the Sabine river, and running west along the Gulf of Mexico three leagues from land to the mouth of the Rio Grande, thence up the principal stream of said river to its source, thence due north to the forty-second degree of north latitude, thence along the boundary line, as defined in the treaty between the United States and Spain, to the beginning; and that the president be, and is hereby, authorized and required to open a negotiation with the government of the United States of America, so soon as, in his opinion, the public interest requires it, to ascertain and define the boundary line as agreed upon in said treaty." 1 Sayles' Early Laws Tex. art. 257.

On the 25th of April, 1838, a convention was concluded between the United States and the republic of Texas for marking the boundary referred to in the above treaty of 1828, as follows:

"Whereas the treaty of limits made and concluded on the 12th day of January, 1828, between the United States of America of the one part and the United Mexican States on the other part, is binding upon the republic of Texas, the same having been entered into at a time when Texas formed a part of the United Mexican States; and whereas it is deemed proper, in order to avoid future disputes and collisions between the United States and Texas in regard to the boundary as designated by said treaty, that a portion of the same should be run and marked without unnecessary delay: Art. 1. Each of the contracting parties shall appoint a commissioner and surveyor, who shall meet, before the expiration of twelve months from the exchange of the ratification of the convention, at New Orleans, and proceed to run and mark that portion of the said boundary which extends from the mouth of the Sabine, where that river enters the Gulf of Mexico, to the Red river. 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 convention, and shall have the same force as if it were inserted therein. Art. 2. And it is agreed that until this line is marked out, as is provided for in the foregoing article, each of the contracting parties shall continue to exercise jurisdiction in all territory over which its jurisdiction has hitherto been exercised, and that the remaining portion of the said boundary line shall be run and marked at such time hereafter as may suit the convenience of both the contracting parties, until which time each of the said parties shall exercise, without the interference of the other within the territory of

which the boundary shall not have been so marked and run, jurisdiction to the same extent to which it has been heretofore usually exercised." Treaties and Conventions, 1079. By the act of congress of January 11, 1839, c. 2, provision was made for carrying this convention into effect. 5 Stat. 312. It does not appear that anything of importance was accomplished under that act.

*By a joint resolution passed March 1, 1845, congress consented that "the territory properly included within and rightfully belonging to the republic of Texas" might be erected into a state to be admitted into the Union; one of the conditions of such consent being that the new state be formed, subject to the adjustment by the United States of all questions of boundary that might arise with other governments. 5 Stat. 797. The conditions prescribed were acepted by Texas. 1 Sayles' Early Laws Tex. art. 1531. And by the joint resolution of congress, approved December 29, 1845, Texas was admitted as one of the states of the Union, on an equal footing in all respects with the original states. 9 Stat. 108.

Then came the act of congress approved September 9, 1850, c. 49, entitled "An act proposing to the state of Texas the establishment of her northern and western boundaries, the relinquishment by the said state of all territory claimed by her exterior to said boundaries, and of all her claims upon the United States, and to establish a territorial government for New Mexico." By that act certain propositions were made to the state of Texas, which, being accepted, were to be binding upon the United States and the state. Among them were the following: "First. The state of Texas will agree that her boundary on the north shall commence at the point at which the meridian of one hundred degrees west from Greenwich is intersected by the parallel of thirty-six degrees thirty minutes north latitude, and shall run from said point due west to the meridian of one hundred and three degrees west from Greenwich; thence her boundary shall run due south to the thirty-second degree of north latitude; thence on the said parallel of thirty-two degrees of north latitude to the Rio Bravo del Norte; and thence with the channel of said river to the Gulf of Mexico. Second. The state of Texas cedes to the United States all her claim to territory exterior to the limits and boundaries which she agrees to establish by the first article of this agreement. Third. The state of Texas relinquishes all claim upon the United States for liability of the debts o1 Texas, and for compensation or indemnity for the surrender to the United States of her ships, ports, arsenals, custom house revenues, arms and munitions of war, and public buildings, with their sites. which became the property of the United States at the time or the annexation. Fourth. The United States, in consideration of said

establishment of boundaries, cession of claim to territory and relinquishment of claims, will pay to the state of Texas the sum of ten millions of dollars in a stock bearing five per cent. interest, and redeemable at the end of fourteen years, the interest payable half-yearly at the treasury of the United States," and agreed to "be bound by the terms thereof, according to their import and meaning." 9 Stat. 446, 447.

The state accepted these propositions by an act approved November 25, 1850, and agreed to "be bound by the terms thereof according to their import and meaning." 2 Sayles' Early Laws Tex. art. 2127.

In the light of these general facts, we recur to the treaty of 1819, from which it will be seen that the line agreed upon-starting from the point where the line due north from the Sabine river, at the 32d degree of latitude, strikes the Rio Roxo of Natchitoches, or Red river-followed "the course of the Rio Roxo westward to the degree of longitude 100 west from London and 23 from Washington."

The contention of the United States is that this requirement cannot be met except by going westward along and up the Prairie Dog Town Fork of Red river to the point where (as shown on the first of the above maps) that river intersects the 100th meridian; the government claiming that that river, and not the North Fork of Red river, is a continuation or the principal fork of the Red river of the treaty.

The state insists that even if the treaty be interpreted as referring to the true 100th meridian of longitude, and not to that meridian as located on the Melish map of 1818, "the course of the Rio Roxo westward" from the intersection of the line extending north from Sabine river to Red river takes the line, not westwardly along the Prairie Dog Town Fork of Red river, but northwardly and northwestwardly up the North Fork of the Red river (from its intersection with Red river) to the point where the latter fork crosses the true 100th meridian, between the 35th and 36th degrees of latitude.

But at the outset of the discussion the state propounds this proposition: That, the treaty of 1819 having declared that the boundary lines between the United States and Spain should be as laid down on Melish's map of 1818, it is immaterial whether the location of the 100th meridian of longitude on that map was astronomically correct or not, or whether the one or the other fork of Red river was or is the continuation of the main river; that the map of Melish having fixed the 100th degree of longitude west from Greenwich below and east of the mouth of the North Fork of Red river, as now known, is conclusive upon both governments, their privies and successors. If this position be sound, the case is for the state; for it is conceded that the entire territory in dispute is west of the

100th meridian, as that meridian appears on the Melish map of 1818, although it is, beyond all question, east of the true 100th meridian, astronomically located, and as long recognized both by the United States and Texas.

The state's answer thus presents this issue: "That the line of said 100th meridian of longitude west from London, as laid down in said map of Melish, intersects the Rio Roxo, or Red river, a distance of many miles east of what is claimed by the complainant to be the true line of said meridian, and many miles east of the point where the Ke-che-ah-que-ho-no [Prairie Dog Town Fork of Red river] empties its waters into the Rio Roxo of the treaty; and said meridian so laid down on Melish's map and extended north to the 42d parallel of north latitude, includes, as territory properly belonging to and conceded to Spain under the terms of the treaty, and belonging of right to Texas by virtue of the establishment of her independence, a large part of the lands now belonging to the Chickasaw and other tribes of Indians, under concessions by treaty, as well as a portion of the present states of Kansas and of Colorado, and a part of the territory of New Mexico. Defendant shows that long before and after the date of said treaty of 1819 the king of Spain claimed all this territory lying west of said 100th meridian of longitude, and south of said 42d parallel of latitude, as laid down upon Melish's map; and, in effectuation of such claim, exercised repeated acts of ownership and dominion over the same, without question; and, after securing her independence and establishment as an independent nation, the United Mexican States likewise asserted their dominion and authority over said territory; and Texas, both as a separate republic and as a state of the Union, has claimed and exercised complete ownership and dominion over said territory, including the territory now in controversy, by occupation of said territory by her armies, and by extending the operations of her laws over the same, and by various other acts and declarations, until the happening of the matters and things now here to be shown and set forth."

Referring to the pleadings, and to the act of congress of January 31, 1885, in which the terms of the treaty are recited, and which directs the commissioners appointed under it to "mark the point where the 100th meridian of longitude crosses Red river in accordance with the terms of the treaty," the counsel for the state says: "But if the intersection of the 100th meridian of longitude with the parallel 36° 30' north latitude, constituting the beginning of the north boundary line of Texas under the act of 1850 (9 Stat. 446, c. 49), shall be held to mean the actual, and not the Melish, intersection, it does not follow that the actual, and not the Melish, 100th meridian constitutes the eastern bound

ary line of the state.

Nor is the situation altered by the fact that this construction will leave for future determination the ownership of a portion of the northeastern territory."

If, as asserted by the state, this case should be determined upon the basis that the 100th meridian is where the Melish map located it, and not where it is in fact, this court may well decline to recognize a claim attended with such grave consequences as those suggested by the answer, unless it be clearly established.

Undoubtedly, the intention of the two governments, as gathered from the words of the treaty, must control, and the entire instrument must be examined in order that the real Intention of the contracting parties may be ascertained. 1 Kent, Comm. 174. For that purpose the map to which the contracting parties referred is to be given the same effect as if it had been expressly made a part of the treaty. McIver's Lessee v. Walker, 9 Cranch, 173, 4 Wheat. 444; Noonan v. Lee, 2 Black, 499; Cragin v. Powell, 128 U. S. 691, 696, 9 Sup. Ct. 203; Jefferis v. Land Co., 134 U. S. 178, 194, 10 Sup. Ct. 518. But are we justified, upon any fair interpretation of the treaty, in assuming that the parties regarded that map as absolutely correct in all respects, and not to be departed from in any particular, or under any circumstances? Did the contracting parties intend the words of the treaty should be literally followed, if by so doing the real object they had in mind would be defeated? The boundary line was to begin at the mouth of the river Sabine, and continue north, along the western bank of that river, to the 32d degree of latitude. Was it intended that the Melish map should control, in fixing the point where the Sabine river met that degree of latitude? Was the line due north from Sabine river to Red river to begin at the intersection of Sabine river with the true 32d degree of latitude, or where Melish's map indicated the place of such intersection? The two governments certainly intended that the line should be run from the Gulf along the western bank of the Sabine river, and, after it reached Red river, that it should follow the course of that river, leaving both rivers within the United States. But it cannot be supposed that they had in view the intersection of Sabine river with any degree of latitude other than the true 32d degree of latitude, nor the crossing of the line extending along the Red river westward with any meridian of longitude other than the true 100th meridian. The fourth article of the treaty shows that the contracting parties contemplated that the line should be fixed with more precision than it was then possible to do; and, to that end, provision was made for the appointment of commissioners and surveyors, who should run and mark It, and designate exactly the limits of both nations, the results of such proceedings, it was declared, to be considered part of the

treaty, having the same force as if inserted therein. Melish's map of 1818 was taken as a general basis for the adjustment of boundaries, but the rights of the two nations were made subject to the location of the lines, with more precision, at a subsequent time, by commissioners and surveyors appointed by the respective governments. So far as is disclosed by the diplomatic correspondence that preceded the treaty, the negotiators assumed, for the purposes of a settlement of their controversy, that Melish's map was, in the main, correct. But they did not and could not know that it was accurate in all respects. Hence they were willing to take it as the basis of a final settlement; the fixing of the line with more precision, and the designating of the limits of the two nations with more exactness, to be the work of commissioners and surveyors, who were to meet at a named time, and the result of whose work should become a part of the treaty. While the line agreed upon was, speaking generally, to be as laid down on Melish's map, it was to be fixed with more precision, and designated with more exactness, by representatives of the two nations.

But there is another, and perhaps stronger, view of this question, and which is equally conclusive, even if the 100th meridian originally contemplated by the treaty of 1819 were assumed to have been the erroneous meridian line of Melish's map. This view rests upon the official acts of the general government and of Texas, and requires that the present controversy shall be determined upon the basis that the line, which by the treaty was to follow "the course of the Rio Roxo westward," extends to the true 100th meridian, thence by a line due north.

As heretofore stated, the republic of Texas, by an act passed December 19, 1836, declared that its civil and political jurisdiction extended to the following boundaries: Beginning at the mouth of the Sabine river, and running along the Gulf of Mexico three leagues from the land, to the mouth of the Rio Grande; thence up the principal stream of the latter river to its source; thence due north to the 42d degree of north latitude; thence, "along the boundary line as defined in the treaty between the United States and Spain, to the beginning." The president of that republic was authorized and required by the same act to open a negotiation with the United States to ascertain and define the boundary as agreed upon in that treaty. 1 Sayles' Early Laws Tex. art. 257. This boundary had not been defined when Texas was admitted, as a state, into the Union, with the territory "properly included within and rightfully belonging to the republic of Texas." The settlement of that question, together with certain claims made by Texas against the United States, were among the subjects that engaged the attention of congress during the consideration of the various measures constituting the compromises

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