United States v. Texas

delivered the opinion of the court.

By the act of Congress of May 2, 1890, c. 182, establishing a temporary government for the Territory of Oklahoma, arid enlarging the jurisdiction of the United States court in the Indian Territory, it was declared that that act should not apply to “ Greer County ” until the title to the same had been adjudicated and determined to be in the United States. And that there might be a speedy judicial determination of that question the Attorney General of' the United States was directed to institute in this court á suit in equity against the State of Texas, setting forth the title and claim of the United States “to the tract of land lying between the North and South Forks of the Bed Biver where the Indian Territory and the State of Texas adjoin, east of the one hundredth degree of longitude, and claimed by the State of Texas as within its boundary and a part of its land, and designated on

In order that the precise locality of this land may be indicated, and for convenience, we insert on page 22 an extract from a map of Texas and of the Indian Territory, published in 1892. The territory in dispute is marked on that map with the words “Unassigned Land.” It contains about 1,511,576.17 acres, lies east of the 100th meridian of longitude and west and south of the river marked on that map as the North Fork of Bed Biver and with the words “ Boundary claimed by the State of Texas.” It is north of the line marked on that map with the words “Boundary claimed by U. S.” The river on the south side is now commonly known as Prairie Dog Town Fork of Bed Biver, (the Indian name of which is Kecheahquehono,) which has its source in the western part of Texas, and is the same river as the South Fork of Bed BiVer mentioned in the act of 1890.

The present suit was instituted pursuant to that act. • The State appeared, and demurred to the bill upon the following grounds :■ 1. The question of boundary raised by the suit was political in its character, and not susceptible of judicial determination by this court in the exercise of any jurisdiction conferred by the Constitution and laws of the United States. 2.. Under the Constitution it was not competent for the United States to sue, in its own courts, one of the States composing the Union. 3. This court, sitting as a court of equity, could not hear and determine the present controversy — the right asserted by the United States being in its nature legal and not equitable.

Upon full consideration these several grounds of demurrer were overruled. United States v. Texas, 143 U. S. 621 . The reasons given for that conclusion need not be here repeated.

The State answered the bill, controverting the claim of the United States and. asserting that the lands within the boundary mentioned in the above act constitute a part of its terri-

Both parties assert title under certain articles of the treaty between the United States and Spain, made February 22, 1819, and ratified February 19, 1821. 8 Stat. 252 , 254, 256.

Before examining those articles, it will ,be useful to refer to the diplomatic correspondence that preceded the making of the treaty. That correspondence'commenced during the administration of President Madison, and was concluded under that of President Monroe. It appears that the negotiations upon the subject of the boundaries between the respective possessions of the two countries was more than once suspended because certain demands on the part of Spain were regarded by the United States as wholly inadmissible, 4 American State Papers, Foreign Relations, pp. 425, 430,438, 439, 452, 464, 465, 466, 478. Finally, on the 24th day of October, 1818, the Spanish minister, “ to avoid all cause of dispute in future,” proposed to Mr. Adams, Secretary of State, that the limits of the possessions of the two governments west of the Mississippi should be designated by a line beginning “on the Gulf of Mexico, between the rivers Mermento and Oalcasia, following the Arroyo Hondo, between the Adaes and Natchitoches, crossing the Rio or Red River at the thirty-second degree of latitude, and ninety-third of longitude from London, according to Melish’s map, and thence running directly north, crossing the Arkansas, the White and the Osage Rivers, till it strikes the Missouri, and then following the middle of that river to its source, so that the territory on the right bank of the said river will belong to Spain, and that on the left bank to the United States. The navigation, as well of the Missouri as of the Mississippi and Mermento, shall remain free to the subjects of both parties.” He also proposed that,- in order “ 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 should appoint a commissioner and surveyor, who should run and. mark the line, and make out plans and keep journals of

To this proposition Mr. Adams, under date of October 31, 1818, replied : “ Instead of it, I am authorized to propose to you the following, and. to assure-you that it is to be considered as the final offer on the part of the United States: Beginning at the mouth of the river Sabine, on the Gulf of Mexico, following. the course of said river to the thirty-second degree • of latitude; the eastern bank and all the islands in the said river to belong to the United States, and the western bank to Spain; thence, due north, to the northernmost part of the thirty-third degree of north latitude, and until it strikes the Bio Boxo, or Bed Biver; 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; thence to the summit of the said mountains, and following the chain of. the same to the forty-first parallel of latitude; thence, following the said parallel of latitude, 41°, to the South Sea. The northern bank of the said Bed Biver, and all the islands therein, to belong to the United States, and the southern bank of the same to Spain.” “ It is believed,” Mr. Adams said, “ that this line will r-ender the appointment of commissioners for fixing it more precisely unnecessary, unless it be for the purpose of ascertaining the spot where the river Sabine falls upon latitude 32° north, and the line thence due north to the Bed Biver, and the point of latitude 41° north on the ridge of the Snow Mountains.” Annals of Congress, 15th Cong. 2d Sess. 1903, 1904.

This proposition was rejected by the Spanish minister, and in his letter of November 16, 1818, he said: “ I will undertake to admit the river Sabine instead of the Mermento as the boundary between the two powers, from the Gulf of Mexico, on condition that the same line proposed by you shall run due north from the point where it crosses the river Boxo (Bed Biver) until it strikes the Mississippi, and extend thence along

The negotiations were resumed in the succeeding year and the Spanish minister wrote to Mr. Adams, under date of February 1, 1819: “ 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 Sanie Fé, the capital of New Mexico, and as I flatter myself the United States have no hostile intentions towards Spain, at the moment we are using all our efforts to strengthen the existing friendship between the two nations, it must be indifferent to them to accept the Arkansas instead of the Red River as the boundary. This opinion is strengthened by the well known fact, that the intermediate space between these two rivers is so much impregnated with nitre as scarcely to be susceptible of improvement. In consideration of these obvious reasons, I propose to you, that, drawing the boundary line from the Gulf of Mexico, by the river Sabine, as laid down by you, it shall follow the course of that river to its source ; thence, by the ninety-fourth degree of longitude, to the Red River of Natch-itoches, and along the same to the ninety-fifth degree, and crossing it at that point, to run by a line due north to the Ar

The last proposition made by Mr. Adams to the Spanish minister contained the following : “ 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 thirty-second 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; thence following the course of' the Rio Roxo westward, to the degree of longitude one hundred- and two degrees west from London and twenty-five degrees from "W ashington; 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 forty-one degrees north; and thence, by the parallel of latitude, to the South Sea; the-whole being as laid down in Melish’s map of the United States, published in Philadelphia, improved to the 1st of January, 1818. But, if the source of the Arkansas River should be found to fall north or south of latitude forty-one degrees, 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 forty-one degrees, and thence along the said parallel to the South Sea; the Sabine and the said Red and Arkansas Rivers, and all the islands in the same, throughout the course thus described, to belong to the United States, and the western bank of the 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

We have alluded to this diplofnatic 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:

“ ARr. 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 ; thencé, 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 River shall be found to fall north or south of latitude 12°, 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 oUthe 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 renotmce 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 Hatch itoches, 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 pages 30 and 31. .

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 farther 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 dividing 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, thénce 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 of Texas, 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 twelfth day of January, in the year of our Lord one thousand, eight hundred and twenty-eight, between the United States of America of the one part and the United Mexican States of

Then came the act of Congress, approved September 9,1850, c. 49, 9 Stat. 446 , 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 hv/ndred 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 fhirty-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 State's for liability of the debts of Texas, and for compensation or indemnity for the. surrender

to the United States of her ships, forts, arsenals, customhouses, 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 of 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 of Texas, 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 t — followed “the course of the Rio Roxo westward to the degree of longitude TOO 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

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 on 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 Kecheahquehono [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 a/nd other tribes of Indians, wnder concessions by 1/reaty, as well as a portion of the present States of Kansas and of Colorado, cmd apart 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

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 boundary line of the State. . . . Ror 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 in*

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 west along the Gulf of Mexico three leagues from the 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 words “the meridian of one hundred degrees west from G-reenwich,” in the act of 1850, manifestly refer to the true 100th meridian, and not to the 100th meridian as located

It thus appears that the two governments, with knowledge that the treaty of 1819 referred to Melish’s map of 1818, have, by official action, declared that the 100th meridian is located on the line that marks the eastern boundaries of the counties Of Lipscomb, Hemphill, Wheeler and Collingsworth, in the State of Texas. Besides, the proof in the cause leaves no-room to doubt that the true 100th meridian is, as shown by the above map of 1892, immediately east of those counties. The acts of the two governments and the evidence, therefore, concur in showing that the 100th meridian is not correctly delineated on the Melish map of 1818. And in the above settlement of a part of the boundary lines between the United States and Texas, the two governments have accepted the ’ true 100th meridian and discarded the Melish 100th meridian. Giving effect to the compromise act of 1850, the suggestion that the 100th meridian must be taken, in the present controversy, to be as located on the Melish map of 1818, is wholly inadmissible. It cannot be supposed that the United States

We have said that the treaty itself, upon a reasonable interpretation of its provisions, left it open to the contracting parties, through commissioners and surveyors, to fix the lines with precision, and, therefore, to show, by competent evidence, where the true 100th meridian was located. But if this were not so, we should feel obliged to hold that the convention or contract between the United States-and Texas, as embraced in their respective enactments of 1850, together with the subsequent acts of the two governments, require in the determination of the present controversy that the 100th meridian, mentioned in the treaty of 1819, be taken to be the true 100th meridian, and, consequently, that the line, “following the course of the Rio Roxo westward to the degree of longitude 100 west from London,” must go, and was intended to go, to the true or actual 100th meridian, and not stop at the Melish 100th meridian.

So that the real question for solution is whether, as contended by the United States, the line “following the course of the Rio Roxo westward to the degree of longitude 100 west from London,” meets the 100th meridian at the point where

Upon this point the evidence is very voluminous. Much of it, we feel constrained to say, is of little value, and tends only to confuse the mind in its efforts to ascertain what was within the contemplation of the negotiators of 1819.

It is a matter of regret that the question now presented, involving interests of great magnitude, should not have been determined, in some satisfactory mode, before or shortly after Texas was admitted as one of the States of the Union. It has remained unsettled for so long a time that it is not now so easy of solution as it would have been when the facts were fresh in the minds of living witnesses who had more intimate knowledge of the circumstances than any one can now possibly have upon the most thorough investigation.

Before looking at the Melish map of 1818, it will be proper to inquire as to the general course of Eed Eiver, so far as any information had been given to the public prior to the making of that map. Probably the most trustworthy publication on the subject is Pike’s “ Account of expeditions to the sources 'of the Mississippi and through the western parts of Louisiana to the source of the Arkansaw, Kans, La Platte and Pierre Juan Eivers, performed by order of the government of the United States, during the years 1805, 1806 and 1807; and a tour through the interior parts of New Spain, when conducted through these provinces by order of the Captain General in the year 1807.” This work was copyrighted in 1808 and published at Philadelphia in 1810. It was illustrated by numerous charts, copies of which are found on pages 44, 45, 46, 47, post — one of them being “A Chart of the Internal Part of Louisiana,” the other, “ A Map of the Internal Provinces of New Spain.” Those charts show a large river called Eed Eiver, extending from a point near Santa Fé between latitude 37° and 38° across what is now the State of Texas, passing-Natchitoches, Louisiana. Both show a chain of mountains

These are undoubtedly the Snow Mountains referred to in the letter of Mr. Adams to the Spanish minister, of October 31, 1818, in which, as we have seen, the former proposed that the line from east to west should follow the course of Red River “ to its source, touching the chain of the Snow Mountains, in latitude 37° 25' north, longitude 106° 15' west, or thereabouts.” East of the Snow Mountains, as delineated on these charts, are two prongs or small streams, “Rio Rojo” and “ Rio Moro,” the source of the former being northeast, and the latter nearly east, of Santa Fé. The Rio Rojo rises, between the 37th and 38th, and the Rio Moro between the 36th and 37th degrees of latitude, both near the 106th degree-of longitude. Between those prongs, on one of the charts, are the words “ Source of Red River of the Mississippi.” The prongs or streams Rio Rojo and Rio Moro unite at about the 37th degree of latitude, and form one stream, marked on-one chart as Red River, and on the other as “ Rio Colorado [Red River] of Natchitoches.” The stream, thus formed, runs for a, short distance eastwardly, then southeastwardly until it reaches a point a little west of the 100th meridian, then east-wardly,'then a little northeastwardly, then southeastwardly, passing Natchitoches, to a junction with the Wichita River-near the Mississippi River. It should also be stated that on these charts is marked a road or line extending from Tous,. (which is north of Santa Fé,) through a gap of the Snow Mountains, and thence along the north side of Red River. That line is described as “ The route pursued by the Spanish cavalry when going, out from .Santa Fé in search of the American exploring parties commanded by Major Sparks and Captain Pike in the year 1806.” These charts or maps, in connection with the chart of the lower part of Red River, not here reproduced,.’ also show throughout the entire distance from Natchitoches to the source of Red River near the Snow Mountains, small.streams emptying into the main river from the north and north west, none of which, however, are marked with names; and -that north of Red River, as delineated by

That prior to Melish’s map of 1818 it was believed that the Red River that passed Natchitoches had its source in the mountains near Santa Fé is manifest from Melish’s own publications. In 1816 he published at Philadelphia a small book, with the title “A geographical description of the United States with the contiguous British and Spanish possessions.” It accompanied his map of those countries. In that work it appears that he used Humboldt’s map of 1804, and Pike’s Travels. He said : “ The Red River rises in the mouhtains to the eastward of Santa Fé, between north latitude 37° and 38°, and, pursuing a general southeast course, makes several remarkable bends, as exhibited bn the map; but it receives no very considerable streams until it forms a junction with the "Wachitta, and its great mass of waters, a few miles before it reaches the Mississippi.” pp. 13 and 39. See also the third edition of his work published in 1818, pp. 14 and 42.

On Darby’s map of the United States, including Louisiana, published in 1818, and prefixed to his “Emigrant’s Guide,” appears the “Red River of Natchitoches,” formed by two prongs, and extending southeastwardly from a point near the intersection, of the 107th degree of longitude and the 40th degree of latitude to its junction with, waters near the Mississippi. East of the 100th meridian are two unnamed streams coming from the northwest, each much shorter than the main Red River, as delineated on that map. It is stated in this work that the Red River “ rises near Santa Fé in N. lat. 37° 30' and 29° west of Washington, runs nearly parallel to the Arkansas, joins the Mississippi at 31° N. lat. after a comparative course of 1100 miles.” p. 50.

In view of the facts stated, particularly in view of Melish’s knowledge of Pike’s publication and the statements in his own work, it cannot be doubted that when the Melish map of 1818' was published it was believed that there was a Red River that continued without break from its source near Sante Fé or the

Following the course of Red River, as laid down on the Melish map of 1818, it is impossible to doubt that in the mind of Melish the Red River was the stream represented by Pike as having two prongs, Rio Rojo and Rio Moro, near Santa Fé, and as running without break, first easterly, then southeastwardly, then eastwardly for a comparatively short distance, and then •southeastwardly to its mouth near the Mississippi River. On the north and east of Red River, as thus marked, there was no stream connected with it that was marked by any name. There was an unnamed stream, on the north side of the main river, which emptied into the latter between the 101st and 102d degrees of west longitude as defined on that map. If regard be had alone to the map of 1818, it is more than probable that th'e river marked on it as.having near its source two prongs, Rio Rojo and Rio Moro, and which formed one stream that continued without break southeastwardly, and into which, between the 101st and 102d degrees of longitude, as marked on that map, came from the northwest an unnamed stream, was the river designated on Pike’s chart as Red River, and was the Red River of the treaty of 1819. The suggestion that the river marked on the Melish map as having the two prongs, Rio Rojo and Rio Moro, and running southeastwardly, was the river now known- as the North Fork of the Red River, is without any substantial foundation upon which to rest. If the latter river is delineated at all on the Melish map, it is the unnamed stream that entered the main river from the northwest, between the 101st and 102d meridians as located on that map.

There is a large amount of evidence of a documentary character showing that this interpretation of the Melish map is correct. We have before us “A map of the United States, with the contiguous British and Spanish possessions, compiled from the latest and best authorities by John Melish.” It was copyrighted June 16, 1820, and published at Philadelphia by Finlay son, the successor of Melish. A part of .that map is reproduced on pages 52, 53. It is spoken of as Melish’s map of 1823, because that is the year to which it was improved.

■ If the case depended upon that map it could not he doubted that the territory in dispute is outside of the limits of Texas. The direction of the treaty is to run westward, not northwest-wardly, on Red River to the 100th meridian.- According to the view pressed by the State, the true line extends, from the junction of the North Fork of Red River with Red River, northwardly, then easterly, then northwestwardly wp that fork, although at such junction there is another wide stream, coming almost directly from the west, and which fully meets the requirement of the treaty to follow the course of the Red River wesiwardly to the 100th meridian. We do not feel authorized to assent to this view. In our judgment the direction in the treaty to follow the course of the Réd River westward to the 100th meridian takes the line, not up the North Fork, but westwardly with the river now known' as the Prairie Dog Town Fork, or South Fork of Red River, until it reaches that meridian, thence due north to the point where Texas agreed that its line “ on the north ” should commence.

This conclusion is strongly fortified by an inspection of the numerous maps placed before us, and which were made prior to February 8, 1860, on which day the legislature of' Texas, with knowledge that the territory in dispute was claimed by the United States, passed an act creating the county of Greer, and thereby assumed that it was part of the territory properly and rightfully belonging to that State, at the time its independence was achieved, as well as when it was admitted into the Union. 2 Sayles’ Early Laws of Texas, Art. 2886. Every map before us, published after the treaty of 1819 and prior to 1860, beginning with the Melish map of 1823., shows that the line, going from east to west, followed the course of Red River westward until it crossed the true 100th meridian at or Hear the southwest corner of the territory designated as “Unassigned Land.” Upon each and all of these maps appear

Among the maps to which we refer are the ‘following: 1. “ A map of Mexico, Louisiana and the Missouri Territory, including the States of Mississippi, Alabama Territory, East and "West Elorida, Georgia, South Carolina and part of the Island of Cuba,” by John.H. Kobinson, M.D., copyrighted in 1819, and published at Philadelphia. The author is no doubt the gentleman of the same name who accompanied Major Pike in his expeditions, and is spoken of by that officer as a man of enterprise and science. The river marked on that map as Eed Eiver east of the 100th meridian has its source in the region of Santa Fé, and corresponds with the Eed Eiver or the Eio Colorado of Natchitoches, as delineated on Pike’s, map. 2. Morse’s map of the United States, published in 1822, and which accompanied an official report, made by him in that year to the' Secretary of War, of the conditions of the various Indian tribes of the country. On this map appears Eed Eiver with- its source not far from Santa Fé, and running southeastwardly to a short distance west of the 100th meridian,, from which point it extends eastwardly all along the southern line of Indian Territory, thence southeastwardly to the Mississippi. 3. Carey & Lea’s Atlas of 1822. On- this map appears. Eed Eiver having a westward course the entire distance-from about the 94th to the 102d degree of longitude,, bet ween the 33d and 34th degrees of latitude, and constituting the-southern line of the Indian Territory. Eed Eiver on this map has its source near the Snow Mountains. 4. The map of Major Long, of the Topographical Engineers, inscribed to Mr. Calhoun, Secretary of War, and published in 1822. On this map appears a river with its source near the mountains of' Santa Fé, and running southeastwardly, then eastwardly to the 100th meridian, and continuing then eastwardly along the entire line between Indian Territory and Texas. As delineated on Long’s map, between the-. 103d and 101st meridians, that river is marked “ Eio Eoxo or Eed Eiver,” and near the

All of these maps place the territory in dispute east of the 100th meridian and north of the southern line of the Indian Territory as that line is claimed l>y the United States. They are all inaccurate, if any part of that territory is within the limits of Texas. Ho one of them so locates Red-River that its course, going westward (from the point where the line between Texas and Louisiana-intersects the Red River) to the 100th meridian would take the line of the treaty of 1819 up the Horth Pork of Red River until it intersected that meridian near the 35th degree of latitude.

The conclusion to be drawn from the maps to which we

But it is said that the United States has in many ways, and during a very long period, recognized the claim of Texas to the territory in dispute, and upon principles of justice and equity should not be heard at this late day to question the title of the State.

Is there any basis for the suggestion that the United States has ever acquiesced in the claim of the State that the treaty line westward along Red River to the 100th meridian follows the course of the North Fork from its mouth northwardly and northwestwardly until that meridian is reached at a point

In support of the suggestion that the United States has recognized the claim of Texas, reference is made to the fact that in 1843 some Texan troops under the command of Colonel Snively went into the territory here in dispute and were arrested and disarmed by Captain Cooke of the United States Army, who had been specially assigned to the duty of protecting caravans of Santa Fé traders through the territories of the United States to the Texan frontier. Of his conduct the Republic of Texas complained. Connected with that matter was an alleged forcible entry into the custom house at Bryarly’s Landing on Red River by certain citizens of the United States, and the taking therefrom of goods that had been seized as forfeited under the laws of Texas. The settlement of that dispute between the two governments is now relied on as showing a recognition by the United States of the claim of Texas to the territory here in- controversy. We have been unable to find anything in the history of those proceedings to justify this contention of the State. From the letter of Mr. Calhoun, Secretary of State, to Mr. Yan Zandt, Chargé d’affaires of the Republic of Texas, of date August 14, 1844, it appears that Captain Cooke’s conduct in this matter was made the subject of a court of inquiry. Mr. Calhoun said: “The court was ordered, at the request of my immediate predecessor, in conformity to the intimation contained in his communication to Mr. Yan Zandt, of the 19th of January last, in order to ascertain more fully and in the most authentic form the circumstances and facts connected with the proceedings of Captain Cooke and his command, in the disarming of the Texan force under the command of Colonel Snively. Mr. Yan Zandt will find, on recurring to the extract, that the opinion of the court is, that the place where the Texan force was disarmed was within the territory of the United States; that there was nothing in the conduct of Captain Cooke which was harsh or unbecoming, and that he did not exceed the

Proceeding with the inquiry whether the United States has recognized the claim of Texas to own the territory in dispute, we find that by the treaty of June 22,1855, between the United States and the Choctaw and. Chickasaw Indians, the boundary of the Choctaw and Chickasaw country was thus defined : “ Beginning at a point on the Arkansas River, one hundred paces east of old Fort Smith, where the western boundary line of the State of Arkansas crosses the said river, and running thence due south to Red River; thence up Red River to the point where the meridiem of one hundred degrees west longitude crosses the same ; thence north along said meridian to the main Canadian River ; thence down said river to its junction with the Arkansas River; thence down said river to the place of beginning.” 11 Stat. 611 , 612. It may be here stated that the Kiowas, Comanches and Apaches were settled in the Choctaw and Chickasaw country, as originally defined, in virtue of the treaty of 1867. 15 Stat. 581 , 582. In execution of the treaty of 1855 the Commissioner of Indian Affairs made a contract with A. H. Jones and H. M. C. Brown for a survey of some of the boundaries of the original Choctaw and Chickasaw country. From the field-notes of. those surveyors, which were duly reported to the proper office, and certified to be correct by the astronomer and examiner of the Indian Boundary Survey, we make these extracts: “ The initial monument for the 100th meridian west longitude boundary line between the State of Texas and the Choctaw and Chickasaw countries is established 30 chs. dist. from the north bank of Red River on an elevation near 50 ft. above the bed of the same. The situ

We come now to the act of June 5, 1858, c. 92, by which (in harmony with the act of 'the legislature of Texas of February 11, 1854, 2 Say les’ Early Laws of Texas, Art. 2412) it was provided : “ § 1. That the President of the United States be, and he hereby is, authorized and empowered to appoint a suitable person or persons, who, in conjunction with such person or persons as may be appointed by and on. behalf of the State of Texas for the same purpose, shall run and mark the boundary linés, between the Territories of the United States and the State of Texas: Beginning at the point where the one hundredth degree of longitude west from Greenwich crosses Red River, and running thence north to the point where said one hundredth degree of longitude intersects the parallel of thirty-six degrees thirty minutes north latitude; and thence west with the said parallel of thirty-six degrees and thirty minutes north latitude to the point where it intersects the one hundred and third degree of longitude west- from Greenwich; and thence south with the said one hundred arid third degree of longitude to the thirty-second parallel of north latitude; and thence west with the said thirty-second degree of north latitude to the Rio Grande. § 2. That such landmarks shall be established at the said point of begirining on Red River, and at the other corners, and on the said ■ several lines of said boundary, as may be agreed on by the President of the United States, or

This act was passed before Jones and Brown had completed and reported the survey made by them. Pursuant to this act of 1858 a commissioner was appointed on behalf of the United States. The Secretary of the Interior in his letter of instructions to that commissioner said, among other things : “ After surveying and marking that portion of the boundary defined by the parallel of 36° 30' north latitude, and which is known to you to present no obstacle to a rapid survey and demarcation, to prevent delay and expense, you will take the 100th meridian of west longitude as laid down on the map of the southern boundary of Kansas, or as determined and marked upon- the. surface of the earth by Messrs. Jones and Brown, surveyors of the Chickasaw and Choctaw boundaries, from observations made by Daniel G. Major, astronomer' on the part of the United States, at its intersection with the Northern Creek boundary, about midway between the North Fork of the Canadian and the Canadian River, or by independent observations, whichever, in your judgment from comparison, may be found to be the most correct method. Having connected with, or observed for, the 100th meridian at its intersection with the Creek boundary, as determined by the parties above mentioned, you will proceed as rapidly as possible over the remaining, portion of this meridian to Red River, the termination of your field work, making such observations and measurements as you may deem sufficient to verify it.” The governor of Texas having insisted upon the work of the survey being commenced on Red River rather than on the north line, the Secretary of the Interior, after saying that that course would involve a serious delay in fixing the initial point of the 100th meridian, which could only be done after several months of careful astronomical observations and an exchange of observations with some fixed observatory, said: “ And, besides, by the time the commissioners of the respective governments are prepared to commence their labors at that point, that line will probably have been determined and marked by the United States surveyors, Messrs. Jones and Brawn, who

For reasons that need not be here detailed, the commissioners of the two governments separated before their joint work was concluded. The commissioner of the United States -in a preliminary report, November 14, 1860, to the Secretary of the Interior, stated that he commenced his survey by tracing the 100th meridian from its intersection with the Canadian River northward to its intersection with the parallel 36° 30', forming the northeast corner of the boundary. Having-traced and marked that parallel to the northwest corner, he returned along the bed of the Canadian River, and came again to the 100th meridian, when he turned southward, and followed that meridian “ to its intersection with the south [Prairie Dog Town] or main branch of Red River.” In a subsequent report to the Commissioner of the Land Office, under date of September 30,1861, he said: “ That part of the 100th meridian lying between the main branch of Red River ” — by which was meant Prairie Dog Town Fork or South Fork— “ and the southern boundary of the Cherolcee country had been determined, run'and marked by Messrs. Jones and Brown in 1859, under the direction of the Indian Bureau, as constituting the boundary between Texas and a part of the Indian Territory. So much of the boundary line as was.thus established, Hon. Jacob Thompson, then Secretary of the Interior, directed me to adopt, and in pursuance of this instruction I simply retraced the meridian ■ up to where the work of Messrs. Jones and Brown ended. Thence I prolonged it up to its intersection with the parallel 36° 30'.”

It should be here stated that the governor of Texas, under

During the Civil War, and for many years thereafter, this vexed question did not receive any. attention from either government. The reason for this will be understood by every one.

But the fact upon which the State seems to lay most stress is; that on the 24th. day of February, 1879, Congress passed an act entitled “An act to create thé Northern Judicial District of the State of Texas, and to change the Eastern and Western Judicial Districts of said State, and to fix the time and place of-holding courts in said Districts.” - 20 Stat. 318 , c. 97. By the first section of that act it was provided “ that a judicial district is hereby created in' the State of Texas, to be called the Northern Judicial District of said State, and the territory embraced in the following named counties, as now constituted, shall compose said district, namely.” • Here follows a list of one hundred and ten counties, including all the recognized counties of Texas (except Red River and Bowie) that are-immediately south of the line between the Indian Territory and Texas, as that line is defined on the above map of 1892 ; and midway in this long list appears the word “ Greer.”

The learned counsel'representing the State insist with confi

We are the more inclined to take this view because it is manifest that, prior to the present litigation, the State of Texas never regarded the act of 1879 as recognizing • its.

In the same year the State of Texas, by an act approved

In the year 1884 the attention of the Secretary of the Interior was called'to the attempted occupation of a part of the territory in dispute by white settlers, who assumed that it was a part of the State of Texas. That officer called the attention of the Secretary of War to the subject, and suggested that as this territory had been included within the limits of the Indian Territory, and treated as part thereof for many years, the military should protect the interests of the United States. President Arthur issued his proclamation, warning all persons from obtruding upon the lands embraced within the limits of the Indian Territory. At the request of the authorities 'of Texas action was suspended to await the determination of the disputed question of boundary between that State and the United States.

At the next session of Congress the joint resolutions reported at the previous session'were embodied in the act of January' 31, 1885, c. 47. That act provided:

“ Whereas the treaty between the United States and Spain, executed February twenty-second, eighteen hundred and nine

teen, fixed the boundary line between the two countries west of the Mississippi Eiver as follows: Beginning on the Gulf of Mexico at the mouth of the Sabine Biver, in the sea, and continuing north along the western bank of that river to the thirty-second degree of latitude; thence by a line due north to the degree of latitude where it strikes the Bio Boxo of Natchitoches or Bed Biver; thence following the course of the Bio Boxo westward to the one hundredth degree of longitude west from London, and the twenty-third from Washington; thence crossing the said Bed Biver and running thence by a line due north to the fiver Arkansas; thence following the course of the southern bank of the Arkansas to its source, in latitude forty-two degrees 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, eighteen hundred and eighteen; and whereas a controversy exists between the United States and Texas as to the point where the one hundredth degree of longitude crosses the Bed Biver, as described in the treaty; and whereas the point of crossing has never been ascertained and fixed by any authority competent to bind the United States and Texas; and whereas it is desirable that a settlement of this controversy should be had, to the end that, the question of boundary, now in dispute because of a difference of opinion as to said crossing, may also be settled; therefore,

“Be it enacted, etc., That the President 'of the United States be, and he is hereby, authorized to detail one or more officers of the army who, in conjunction with such person or persons as may be appointed by the State of Texas, shall ascertain and mark the point where the one hundredth meridian of longitude -crosses Bed Biver, in accordance with the terms of the treaty .aforesaid, and the person or persons appointed by virtue of this act shall make report of his or their action in the premises to the Secretary of the Interior, who shall transmit the same to Congress at the next session thereof after such report may be made, for action by Congress.” ' 23 Stat. 296 , 297.

On the 30th day of December, 1887, President Cleveland issued a proclamation asserting that title in, and jurisdiction over, all the territory lying between the North and South, Forks of the Red River and the 100th meridian, as part of the Indian Territory, was vested in the United States. That proclamation recites the fact that the commissioners appointed on the part of the United States, under the act of January 31, 1885, authorizing the appointment of a commission to run and mark the boundary lines between a portion of the Indian Territory and the State of Texas, in connection with a similar commission to be appointed by the State of Texas, had, by their report, determined that the South or Prairie Dog Town Fork was the true Red River designated in the treaty, the commissioners appointed on the part of said State refusing to concur in that report. The President admonished and warned all persons, whether claiming to act as officers of the county of Greer, in the State of Texas, or otherwise, against selling or disposing of or attempting to sell or dispose of any of said lands, or from exercising or attempting to exercise any authority over said lands, or purchasing any part of said territory from any person or persons whatsoever.

We have referred, with perhaps more fullness than was necessary, to the action, legislative and otherwise, of the two governments after the passage of the act of 1879, for the purpose of showing that, notwithstanding the passage of that act, the United States continuously asserted its rightful jurisdiction over the territory in dispute as a part of what is commonly called the Indian Territory ; and that, finally, as the only peaceful method of ending the dispute, Congress passed the act of 1890, under the authority of which the present suit was instituted.

In our judgment the act of Congress of 1879, establishing the Northern Judicial District in Texas, must be interpreted as meaning that the territory in dispute was placed in that district only for such judicial purposes as were competent to the courts of the United States, holden in that district, and that Texas can take nothing in the present controversy by reason of its provisions. •

In support of the contention that the United States is es-topped by its action to claim the territory in dispute, the answer alleges that “ the Executive Department of the government of the United. States has established and maintained post offices and post roads in said county, has advertised publicly for bids for carrying the United States mails over the routes in said county, designating, as defendant is advised, said post office and post roads as' lying in Greer County, Texas, and not lying in the territory allotted to the Indians.” In the amended bill filed by the United States it is alleged that, in 1886, after the passage of the act of 1885 providing for a commissioner to ascertain the line between Texas and the United States, as established by the treaty of 1819, and while the commissioners appointed under that act were actually engaged in their duties, certain residents of the disputed territory, describing themselves'as residents of Gi’eer County,

It is quite sufficient to say in respect to this point that the evidence fully sustains the allegations of the amended bill, and, therefore, the designation, for a short time, of the post office referred to as being in Greer County in the State of Texas cannot, under the circumstances, be deemed of .any weight in our determination of the main issue.

There is another view of the case upon which the State relies, to which much of the argument of counsel was directed. It is indicated in the following clauses of the answer filed by the State: “ That in accordance with their usual custom the Spanish conquerors upon taking possession of- Natchitoches and the territory lying on or adjacent to ‘ Rio Roxo,’ established and laid out a road or route bétween Santa Fé, in New Mexico, and Natchitoches, now in the State of Louisiana, for

In a former part of this opinion we endeavored to show from early maps and printed publications that, at the date of the treaty of 1819, it was believed that the Rio Roxo of Natchitoches or Red River extended without any break from its source not far distant from Santa Fé, first southeasterly, then eastwardly, and then southeastwardly to a point near the Mississippi River. We have here in the answer filed by the State an admission that such was the fact, its position, as we have seen, being that the river that connected the country near Santa Fé with the country bordering on the Mississippi was what is now called the North Fork of Red River. This contention, the State insists, is supported by evidence of the existence of a road .or route established in early times between

It is to be observed that this road or trail is not marked upon what is called the treaty map of 1818, nor upon any map that preceded it. Looking at the diplomatic correspondence that resulted in the treaty of 1819, and at the map-which was before the negotiators, we find nothing to show that the existence or non-existence of a road or trail between Natchitoches and Santa Fé was an important factor in determining the boundary between-the United States and Spain. So far as the record discloses, the negotiators had no knowledge of such a road or trail; and there is no substantial ground upon which to rest even a conjecture that the line was fixed with any reference to routes or trails traversed by traders and trappers. The negotiators had in mind rivers and degrees of latitude and longitude, and that fact appears on the face of' the treaty. It cannot be known that they were controlled in any degree by information as to routes across the country used by traders or explorers.

Looking at maps published after the treaty was made, we-find that a “great Spanish road to Red River” is marked on the Carey & Lea atlas of 1822. Leaving Santa Fé it extends in a southeasterly and easterly direction on the north side of the Canadian River to about 101° 30' of west longitude, then across that river in a southeasterly direction, crossing-the False "Wachita east of the one hundredth meridian, then passing southeastwardly and north of a stream which is probably the North Fork of Red River, as now known, and then eastwardly and north of Red River until it reaches and crosses‘Red River just east of the ninety-seventh degree of longitude. The same road is delineated on the- Melish' map of 1823 and the Young-Mitchell map of 1835. According to those maps each of those roads crossed Red River near the mouth of the Wachita, far east of the junction of the North Fork with Red River. If this be the trail that extended from Santa Fé to Natchitoches, or if there was a trail which, in early times, passed along the North Fork of Red River to or in the direction of Santa Fé, (upon which point the evidence.

There are other matters to which, in view of the large amount of evidence relating to them, we must advert. Many witnesses were examined upon the question whether the Prairie Dog Town Fork or the North Fork was the longer river, which the broader and deeper stream, and which drained the most territory. The State insists, in this case, that if regard be had to width and depth of 'stream and extent of country drained, the North Fork must have been deemed, in early times, or when the treaty of' 1819 was made, the more important of the two forks of Red River, and, therefore, that that fork should be held to be the river whose course, going from the east, was required by the treaty to be followed westward until the 100th meridian was reached.

These questions were considered by the Boundary Commission appointed after the passage of the act of Congress of January 31, 1885, c. 47. The commissioners on behalf of the

We have found that the 100th meridian mentioned in the treaty must, especially since the Compromise Act of 1850, be taken to be the 100th meridian astronomically located. And we are now further considering whether the two governments intended the line, running from the east to the west, should leave Eed Eiver at the mouth of what is now known as the North Fork, and go northwardly and northwestwardly up that fork, or should go westwardly up what is now known as the Prairie Dog Town or South Fork. So far as this question depends upon evidence as to the relative width and length of these two rivers, and the extent of country drained by each, we are of opinion that, although a large number of witnesses sustain the position taken by the State, the Prairie Dog Town or South Fork, according to the decidéd weight of evidence, is wider and longer, and drains a much greater extent of territory than the North Fork. This is the conclusion reached by. the court after a careful and patient scrutiny of all the proof. So that the evidence of living witnesses corroborates that furnished by maps, and sustains the position taken by the United States as to the scope and effect of the words in the treaty of 1819, “ following the course of the Eio Eoxo westward to the degree of longitude 100 west from London and 23 from "Washington.”

But suppose the evidence left it in doubt as to which was the wider and longer stream, and which of the two drains the largest extent of territory; and let it be assumed, as suggested by Governor Eoberts, that upon the facts, derived from observation, the claims of each river to be the main branch of the Eed Eiver mentioned in the treaty are nearly equal; what, in such a contingency, is our duty? It is to ascertain which river more nearly meets the requirement that the line from the east to the west must follow “ the course of the Eio Eoxq westward to the degree of longitude TOO west from London.” If, in following the course of Eed Eiver westward it be found that that river forks before the 100th meridian of longitude

Much stress has been laid by the State upon the testimony of the late General Marcy given before the Boundary Commission of 1886. In the year 1852 that officer, being then a captain in the United States Army, was directed by General Scott to make an examination of the Red River and the country bordering upon it from the mouth of Cache Creek to its source. During his explorations he camped, on the 30th of May, 1852, at a certain point on Red River, and in his daily journal of his movements said: “Red River at this place is a broad, shallow stream, six hundred and fifty yards wide, running over a bed of sand. Its course is nearly due west to the forks, and thence the course 'of the south branch is W. 3ST. W. for eight miles, when it turns to nearly N. W. The two branches are apparently of about equal magnitude, and between them, at the confluence, is a very high bluff, which can be seen for a long distance around.” Senate Ex. Doc. No. 54, 32d Cong. 2d Sess. p. 20. We take it that, in his reference to the forks of Red River, he had in mind the Prairie Dog Town Fork and the North Fork.

Thirty-two years later, that is, in 1886, Captain, then General, Marcy appeared as a witness before the Boundary Commission. He referred to his report of 1852,. and said: “As the time that has elapsed since I made that exploration (thirty-three years) is so great, many of the facts and events connected therewith have passed.from my memory; but some matters relative to the objects for which this commission, was convened, as I understand, may not be found in the report.

That the full force of- General Marcy’s statements may appear we here give so much of his deposition as is embodied in the brief filed by counsel for the State:

“ T regarded the Prairie Dog Town branch as the main Red River, for the reason that its bed was much wider than that of the North Fork, although the water only covered a' small portion of its bed, and as the sandy earth absorbed a good deal of water after it debouched from the cañón through which it flows, it may not-contribute any more water to the lower river than the North Fork. The Prairie Dog Town branch and the North Fork of Red River, from their confluence to their sources, are of about equal length — the former being 180 miles and the latter 170 miles in length. For reasons which I will presently state, I have been unable to resist the force of my own convictions, that the branch of Red River that I called the North Fork of that stream was what is designated upon Melish’s map as Rio Roxo. I doubt if the Prairie Dog Town River was ever known to civilized men prior to my exploration in 1852;' and, if it was ever mapped before then, I am not aware of it. The character of the country through which this stream flows is such that travellers would not have been likely to pass over it when there was a much more favorable route north of the North Fork. The water in the Prairie Dog Town branch, from its confluence with the North Fork to within two miles of. its head spring (about 100 miles), I found so bitter and unpalatable that many of the men became sick from drinking it. But one pool of fresh water was found throughout the entire distance, and the Indians told me they never went up this stream

with, their families if it could be avoided, for the reason that the nauseous water frequently proved fatal to their children. Hence, it is not surprising that but little, if anything, should have been known of this repulsive region before my exploration in 1852. And this probably accounts for the entire absence of most of its southern branches upon Melish’s map. It is very certain that the ‘ Prairie Dog Town Kiver ’ was never delineated by any Spanish, French or English name, as were most of the other streams in that country, and it was only known to the Indians, and possibly to some Mexican traders, as ‘ KecheahquehonOj’ a Comanche appellation, the signification of which the Delawares informed me was ‘ Prairie Dog Town River.’ ... As before stated, owing to the absence of good water, the sandy character of the soil along the river, and the formidable obstruction presented by the elevated and staked plain, and the extensive belt of gypsum crossing this route, the Mexicans would never have attempted to traverse it with their carts in their trading expeditions from Santa Fé to Hatch it oches, especially when there was so good a route a little further north, possessing all the requirements for prairie travelling. The Rio Roxo upon Melish’s map is almost entirely south and west of the Wichita Mountains, but in close' proximity to them — which is in accord with my determination of the position of the North Fork, while there are no mountains upon the Prairie Dog Town branch. The head of the Rio Roxo upon Melish’s map is put down as in about latitude 3T, while upon my map the true latitude is 35-J0, while the Prairie Dog Town River rises in about thirty-four and one-half degrees; so that, if his Rio Roxo was intended to represent the ‘ Prairie Dog Town River,’ it would be two and one-half degrees of latitude too far north.” House Ex. Doc. Ho. 21, pp.. 59, 60.

It thus appears that at the time (1852) General Marcy made ' his exploration of the Red 'River country he regarded the Prairie Dog Town River as the main.Red River, and his conclusion then formed by actual observation was in harmony with the maps that had been previously given to the public. After many of the facts connected’with the subject had, as he

The character of the country through which the Prairie Dog Town River flowed and the bad quality of its water for drinking purposes; are also referred to by General Marcy as reasons why the North-Fork should be-regarded as the stream whose course was intended to be followed in establishing the boundary. We do not think that the evidence upon this point is entitled to very great weight. There is no reason to suppose that the negotiators of the treaty had any knowledge or information as to the relative qualities for drinking purposes of the waters of the two streams in question; and if they had, it is difficult to perceive why such facts would control the determination of a disputed question of boundary between two nations. The-negotiators knew or -believed that there was a Red River, whose source was not far from Sante Fé, and which, in its course, passed Natchitoches. Their purpose was to establish a- line which would extend from the point where the line due north from Sabine River met Red River, thence along and up Red River “ westward ”-to the 100th meridian of longitude, then due north'to the Arkansas River. The reference in the treaty was to rivers and degrees of longitude and latitude. It was a question of territory without regard to.a special trail; the location of which might have been affected by the quality of the waters of any particular stream.

Much significance is attached by the State to the fact that as early as 1860, by legislative enactment, it created the county of Greer with boundaries that include the whole of the territory in dispute, and that it-has ever since asserted its jurisdiction over both that territory and the people who inhabit it. However important such facts might under some circumstances be deemed, it must be remembered that during the whole, of the period referred to the constituted authorities of Texas have been aware that the'United States regarded the territory in dispute as under its exclusive jurisdiction and as a part of what

It is also said that many titles to land in the disputed territory are held under the State and that much confusion may follow, and injustice be done to individuals, if the claim of the United States be sustained. On the other hand, it is to be inferred that there are many settlers in the disputed territory who assert title to land under the United States. It appears in evidence that in 1873 and 1874 a part of that territory was sectionized under the authority of the General Government. Ve suppose that Goverñor Roberts referred to that fact when, in his message of 18S3, he said that “ the authorities of the United States had 'established an initial corner on the South Fork of Red River, on the line claimed to be the 100th degree of longitude, had sectionized the country east of that line, and protected it from settlement of white people as a part of the Indian Territory.” He further said: “ Application was made to me to know if I would sign the patents, if certificates were located and surveyed in Greer • County. Under the then existing circumstances I felt it to be my duty to discourage such locations, as they might be to our prejudice in the settlement of our claim with the United States, when the merits of it could be more fully ascertained.” But whatever may be the facts bearing upon this point, our duty is to determine the present issues according to thó settled principles of law, without reference to considerations of inconvenience to individuals residing in the disputed territory. "We cannot doubt that .the Congress of the United States will do all that justice requires to be done in order to avoid any injury to individuals that ought not to be- inflicted upon them.

It is further said that the State, since it assumed to create Greer County, has expended a large amount of money in pro

In the argument it was suggested that this court ought not to forget how much was added to the power and wealth of this nation when Texas, with its imperial domain, came into the ÍJnion, and her people became a part of the political community for whom the Constitution of the United States was ordained and established. This fact cannot, of course, be forgotten by any American who takes pride in the prestige and greatness of the Republic. But the considerations which it suggests cannot affect the decision of legal questions, and must be addressed to another branch of the Government. The supposition is not to be indulged that that department of the Government will fail to recognize any duty imposed upon it by the circumstances arising out of this vexed controversy.

For the reasons stated the United States is entitled to the relief asked. And this court now renders the following decree:

This cause having teen submitted upon the pleadings, proof h and exhibits, and the court being fully advised> it is ordered, adjudged and decreed that the territory east of the 100th meridian of longitude, west and south of the river now known as the North Fork of Red River, and north of a line following westward, as prescribed by the treaty of 1819 between the United States and Spain, the course, and along the south bank, both of Red River a/nd of the river now known as the Prairie Dog Town Fork or South Fork of Red River wntil such line meets the 100¿A meridian of longitude— which territory is sometimes

AIR. Justice Peckham, not having' been a member of the court when this case was argued, took no part in the decision.