Vol. 44 No. 146
p1 The Kentucky Boundary
By Bayless E. Hardin

Within the bounds of Virginia's royal charter, directly to the west, and yet separated from the extremest frontier by many miles of impassable mountains, lay the territory now known as Kentucky. It pushed forward into the wilderness like a huge wedge, resting upon Virginia's western line as its base. Its apex reached the Mississippi; its axis was the mid line of the coming nation. Even in savage times it divided the permanent possessions of northern and southern Indians. It was the key to all the country between the Alleghanies and the Mississippi. Covered with boundless forests and protected by Alpine barriers terrific to the eye, and almost inaccessible to the most adventurous foot, this lovely country remained unsettled until a time coeval with the first battle of America's war for Independence.

Since some of the most intriguing and romantic aspects of the study of the United States are the stories of how the boundaries of the states were established — how they were formed into their present shapes — the irregular outline of Kentucky makes this a most interesting subject. To arrive at this boundary, however, it is necessary to begin with the original bounds of Virginia, the Mother State, and, to begin with Virginia, is to begin with the history of North America.

Spain, by virtue of first discovery, claimed all of North America, but both England and France disputed her claim and set up rival ones of their own. Asserting prior discovery by Cabot, England claimed the whole continent north of the Spanish settlements in Florida. France denied the validity of the British claim, and maintained priority on her own discoveries and early settlements on the St. Lawrence river and in the Mississippi valley. Because all these powers were anxious to preempt as much as possible of this new world territory, each  p2 granted vast areas to its subjects and sent colonists to claim actual possession in order to anticipate its rivals. The conflict between them, however, became one of might, rather than priority of right, and the sea power of England and the preponderance of her American colonists were destined to win.1

Virginia, under the dominion of Great Britain, extended as far south as the cape of Florida, the only distinction being that all the coast south of Chesapeake Bay was called South Virginia, and all that to the northward was called North Virginia.​2 The first attempted settlement in this vast territory was projected by Sir Walter Raleigh, who obtained a grant from Queen Elizabeth in 1584. His effort, however, was a failure. In 1606 King James I of England issued a charter to the London and Plymouth Companies in a vaguely defined part of North America claimed by England and called "Virginia." This so called "Virginia Charter" embraced the land along the seacoast between latitudes 34 and 45 degrees, but the territory of each was limited to 100 square miles.3

The London Company established a permanent settlement at Jamestown in 1607, but the Plymouth Company accomplished nothing. In 1609 the King of England issued a new charter to the London Company extending its boundary. The wording of the original grant was vague, because of the lack of knowledge of the North American continent. The limits were specified as "all those lands being in that part of America called Virginia, from the point of land called Cape or Point Comfort, all along the seacoast, to the northward •200 miles, and from the said Point or Cape Comfort, all along the seacoast to the southward 200 miles, and all that space and circuit of land, lying from the seacoast of the precinct aforesaid, up into the land, throughout from sea to sea, west and northwest; and also all the islands, lying within •100 miles, along the coast of both seas of the precinct aforesaid."4

The Company's charter was later dissolved, but it did not destroy the existence of the colony, or the rights of its inhabitants, or alter its territorial limits, but only changed the governing power from the Company to the King.​5 Upon the establishment of the new government the same ignorance of the territory prevailed, and no pretense was made to change the wording of the original charter.

In 1608 the New England Grant was pared off from Virginia, its boundaries being defined as extending from the 38th to the 45th degree of north latitude, with a breadth of 100 miles from the sea.​6 From this time forth Virginia  p3 was repeatedly stripped of large and valuable parts of her charter territory, and her original boundary greatly reduced.

In the year 1670 enquiries were propounded by the lords commissioners of foreign plantations, and received their answers in 1671, while Sir William Berkeley was governor of Virginia. A more correct statistical account of Virginia, at that period, perhaps cannot be found anywhere. In referring to the boundary of Virginia, he stated "as for the boundaries of our land, it was once great, ten degrees in latitude, but now it has pleased his majesty to confine us to halfe a degree," probably alluding to the eastern boundary of the sea shore. He claimed four rivers for Virginia: the James, York, Rappahannock and Potomac,​7 and presumed to claim no more territory than that drained by those rivers, to the east of the Alleghanies.

As for the French, whose settlement at Quebec was coeval with that of the English at Jamestown, they penetrated the great lakes, and passing over the country from Lake Michigan through the Fox and Wisconsin rivers, entered the Mississippi, descended it •1000 miles, and returned again to the lakes by way of the Illinois river. The report of Joliet, a missionary who, with a party of men, had made the expedition, excited the enterprise of La Salle, a French officer, who explored the valley of the Mississippi, founded Cahokia, Kaskaskia and other villages in 1683, and returned to France to lay a scheme before the Cabinet for forming an establishment to draw a cordon around the English, who had penetrated no farther than the Alleghanies. The scheme was accepted by the King, but the English considered it only a dream, and thought little of it. The French, however, pursued their plan over a period of years, and established themselves in the Mississippi valley, claiming only west of the Alleghanies. Conflicting with England's claim to the "south seas," this brought on war in 1754, and with it finally the destruction of the French power.​8 By the Treaty of Paris, February 10, 1763, England acquired title to the country beyond the Alleghanies by treaty of cession, when France ceded to her Canada and the whole of the eastern valley of the Mississippi, east of the center line of that river.9

Besides the French and English claims to this vast territory, there was the right of claim of the Indians. They were, however, regarded as having no rights except such as the dominant white nation claiming their country chose to concede to them. Under the law of Nations, recognized by all the great powers of Europe, uncivilized aborigines became subjects of that Christian nation which first discovered and claimed their country, and their lands became the property of that civilized nation. Into this category the Indians fell, and were bound by the power of the invader. By far the most powerful of the Indian tribes were the Iroquois, who absorbed by conquest other tribes to form the Confederation  p4 known as the Six Nations. In the long conflict between England and France over the owner­ship of the Mississippi valley, the British diplomatists set up some very extraordinary claims. They asserted that the Iroquois were Great Britain's subjects; that France, by the Treaty of Utrecht in 1713, had acknowledged them to be such; that they had conquered the whole of the vast but undefined trans-Allegheny region, and had submitted it to the jurisdiction of the British King.​10 Later, in order to more clearly define the bounds between the Indians and the colonists, a treaty was made at Fort Stanwix on November 5, 1768. By a cleverly designed instrument, pretending to have the Indians cede lands which had never really been conceded to them, the boundaries of the eastern states were greatly enlarged.11

At an early date much attention was directed to the region lying west of the Alleghanies. Fleeting tales which reached the settlements on the eastern seacoast painted an alluring picture of the territory about which few knew little. To many it became their ultimate hope and goal. Even in this early day Kentucky was recognized as the first national park, set aside by the Indians as their "happy hunting ground." The fine grazing blue grass and numerous salt licks made it a veritable habitat for the buffalo, deer, bear, etc. Hunting parties and war parties, intent on slaughter of both animal and foe, roamed the region, and many fierce battles were waged. Hence it became known among the Indians as a "dark and bloody ground." They did not, as a general rule, live in Kentucky, and certainly wanted no one else to. This accordingly resulted in a struggle for possession between the white man and the Indian, with the white man eventually winning. When the first settlers came to Kentucky they found it a dense wilderness, difficult to penetrate. It is said they could walk for days in the deep shade without seeing the sunlight. This deep shade and fertile soil produced a luxuriant growth of grass so dark in color that it exhibited a distinct blue tinge. Hence the name "blue grass" was applied.

When the county of Orange was established in 1734, it comprised the whole of Virginia west of the Blue Ridge mountains. Four years later it was enacted by the Virginia Assembly that "all that territory and tract of land at present deemed to be part of the county of Orange, lying on the northwest side of the top of the Blue Ridge of Mountains, extending from thence northerly, westerly and southerly, beyond the said mountains, to the utmost limits of Virginia, be separated from the rest of said county, and erected into two distinct counties and parishes, to be divided by a line to be run from the head spring of Hedgman river, to the head spring of the river Potowmack; and that all that part of the said territory, lying to the north-east of the said line, beyond the top of the said Blue Ridge, shall be one distinct county and parish, to be called by the name of the county of Frederick; and that the rest of said territory, lying on the other  p5 side of the said line, beyond the top of the said Blue Ridge, shall be one other distinct county and parish, to be called by the name of the county of Augusta."12

Thus when the Kentucky country began to attract the attention of the white man, the region lay in a remote part of Augusta county, Virginia. John Findley was the first white man to really appreciate Kentucky.​13 He was not, however, the first white man in Kentucky. De Soto had probably touched the region in 1541, when he discovered and explored the Mississippi river. Joliet and Marquette probably touched that part lying adjacent to the Mississippi river in 1673. In 1674 Gabriel Arthur, a young Virginian, was captured by the Indians, taken to the north through eastern Kentucky, and later released on the Warriors Path to make his way back home. Many others had touched the territory. In 1729 a party of Frenchmen discovered Big Bone Lick, in what is now Boone county. In 1750 Dr. Thomas Walker and company explored eastern Kentucky, discovered and named Cumberland Gap and river, and Kentucky river, which they called Louisa. Christopher Gist was exploring Kentucky in 1751.​a John Findley was in Kentucky in 1752 at the Shawnee village of Eskippakithiki in what is now Clark county. He was a Pennsylvania trader, and had made trips to the west before, bartering with the Indians along the Ohio river, but had never been in the interior of Kentucky. He had had no intention of visiting the interior on this particular trip, but had journeyed on to the Falls of the Ohio, hoping to meet hunting parties of Indians with whom he could trade. Finding no one there, however, he turned back on the Ohio, eventually met a band of Shawnees returning from a hunt to the north. They invited him to come to their village, and promised him a good trade. Accepting their invitation, he joined them in their trip up the Kentucky river, unloaded his wares on Howard's Upper Creek at Eskippakithiki, where he built a cabin with a stockade around it, and prepared for the fall and winter fur trade. His dreams of profits, however, were rudely shattered on January 28, 1753, when there came along the Warrior's Trace a party of northern Indians and renegades on a scalp hunting expedition against the southern Indians. In the altercation which followed three of Finley's servants were killed, all of his property was taken, and he was compelled to flee with his remaining servant through the winter woods to Pennsylvania. In reporting this affair on April 10, 1753, Major William Trent, Virginia's agent among the Alleghany Indians, referred to it as occurring "at a place called Kentucky". This is probably the earliest known document referring to the name Kentucky, as it is spelled today, and only pertained to Eskippakithiki and the immediate neighborhood. Since the Kentucky river was the water way by which "the place called Kentucky" was reached, it was called the Kentucky river. The  p6 name was derived from kenta, meaning meadow land or level land, a root-word of the Iroquois, who were the avowed masters of this region.

Returning home, Findley enlisted in the French and Indian war, and while in the service met Daniel Boone, a wagoner, to whom he recounted vivid stories of the Kentucky wilderness. They made plans to visit the wonderful land as soon as an opportunity was presented. Accordingly, in 1769, Findley led Boone and his four companions into the Kentucky country. Before arriving at the "place called Kentucky", however, Findley became ill and had to drop from the march, but he gave Boone explicit directions to follow, and on June 7 from an eminence now identified as Pilot Knob, near the dividing line between Powell, Montgomery and Clark counties, he first beheld the "beautiful level of Kentucky". The stockades and most of the houses at Eskippakithiki had been burnt to the ground, for these Indians were allies of the French, and had joined the rest of the Shawnees in the French and Indian war, and had abandoned the village and Kentucky as a residence of the red man forever.

Boone remained in the wilderness for two years, and firmly resolved to return with his family and settle permanently. While he was in Kentucky in 1769 the Virginia Assembly cut off the region into Bottetourt county with the following description: "From and after the thirty-first day of January next ensuing, the county and parish of Augusta be divided into two counties and parishes, by a line beginning at the Blue Ridge, running north fifty-five degrees west, to the confluence of Mary's creek, or the South river, with the north branch of James river; thence up the same to the mouth of Carr's creek; thence up the said creek to the mountain; thence north fifty-five degrees west, as far as the courts of the two counties shall extend it; and that all that part of the said county and parish which lies on the south side of the said line, shall be one distinct county and parish, and called and known by the name of Bottetourt; and that all the other part thereof, which is on the north side of said line, shall be one other distinct county and parish, and retain the name of Augusta."14

In 1772 the Kentucky region was cut off into Fincastle county with a division of Bottetourt by a line "to run up the east side of New river to the mouth of Culbertson's creek, thence a direct line to the Catawba road, where it crosses the dividing ridge, between the north fork of Roanoke and the waters of New river, thence with the top of the ridge to the bend where it turns eastwardly, thence a south course crossing Little river, to the top of the Blue Ridge mountains."15

Daniel Boone's effort to make a settlement in the Kentucky country in 1773 resulted in failure, when his party was attacked by Indians near Cumberland Gap, and turned back. In 1773 and 1774 parties of surveyors and hunters explored large portions of the country with a view to future settlement, and in the latter year Captain James Harrod and party made the first permanent settlement  p7 at Harrodsburg. Restrictions to the right of free settlement in the new country arose in 1775, when Colonel Richard Henderson and Company purchased from the Cherokee Indians at the Treaty of Watauga all that part of Kentucky lying between the Kentucky river, Cumberland mountains and Cumberland river. Due to his knowledge of the remote frontier, Boone was employed as guide and surveyor, blazed a trail into the wilderness, and erected Fort Boonesboro as headquarters for the Henderson Company. Subsequently the purchase was declared null and void by the Legislature of Virginia, on the grounds that the land involved was within the bounds of the original charter. The Cherokee Indians were allies of the Iroquois, and, being situated nearer to Kentucky, were held accountable for what happened there, and were guards of the region for the Iroquois. Any claim, however, that the Iroquois had to the territory, was relinquished to Virginia by the Treaty of Fort Stanwix in 1768. The Henderson purchase was one of the most extensive schemes of land speculation ever recorded, and here for the first time appeared the phrase "dark and bloody ground", when Dragging Canoe called it such at Watauga, saying that Henderson had bought a wonderful country, but that it was a "dark and bloody ground".

George Rogers Clark came to Kentucky in 1775, and immediately took up the cause of the settlers. He objected from the beginning to the right of the Henderson purchase, contributed largely to the nullification of the deal, and in the following year was instrumental in the establishment of Kentucky county, created from that part of Fincastle "which lies to the south and westward of a line beginning on the Ohio, at the mouth of Great Sandy creek, and running up the same and the main or north easterly branch thereof to the Great Laurel Ridge or Cumberland Mountain, thence southwesterly along the said mountain to the line of North Carolina."​16 By the act the rest of Fincastle was divided to form Washington and Montgomery counties, and the name Fincastle became extinct. Four years later Kentucky county was divided into the three counties of Jefferson, Fayette and Lincoln, and the name Kentucky, as applied to a county, became extinct.​17 The creation of Kentucky county was the political birth of Kentucky, and, for his services, Clark is called the founder of the Commonwealth. Here he planned the conquest of the great Northwest Territory, thereby, if by no other claim, giving Virginia title to that vast area by right of conquest.

In 1783 the Kentucky region was made a judicial district by the Virginia Assembly, but due to the remoteness of the counties beyond the mountains, the mother state failed to organize an adequate system of local government. Moreover, the settlers suffered from continued depredations by the Indians, and lacked the necessary means and authority to provide a properly organized  p8 militia for their defense. These considerations indicated the necessity of a government independent of Virginia, a settlement which found definite expression in a convention of representative delegates elected by the military companies of the district, who were summoned by Colonel Benjamin Logan, as head of the Kentucky Militia, to meet at Danville in 1784 and take measures for the common defense. The assembly thus convened had no legal authority, but inaugurated the efforts to organize a government and obtain admission into the Union, which was finally accomplished after ten successive conventions. Kentucky was admitted to the Union June 1, 1792, with the boundary designated to remain the same as separated the district from the residue of Virginia.18

There are but few subjects more interesting than the southern boundary of Kentucky, designated as the 36 degree 30 minute parallel of north latitude. With but one exception it represents the longest continuous interstate boundary, and had its origin in its establishment as the boundary line between Virginia and North Carolina in 1665. The Carolina grant was made in 1663, the territory having been possessed and abandoned by both French and Spanish, and having lain in a deserted condition for 90 years.​19 The boundary of this grant was designated as "extending from the north end of the island called Lucke, which lieth in the southern Virginia seas, and within six and thirty degrees of the northern latitude, and to the west as far as the south seas, and so southerly as far as the river St. Matthies, which bordereth upon the coast of Florida, and within one and thirty degrees of northern latitude, and so west in a direct line as far as the south seas aforesaid".​20Afterwards, however, Sir William Berkeley, then Governor of Virginia, finding a territory of •some 30 miles in breadth between the inhabited part of Virginia and the aforementioned boundary of Carolina, advised the Lord Clarendon of it, and he had enough influence with the King of England to obtain a second patent to include the region in 1665.​21This second patent describes the bounds between Virginia and Carolina as "extending north and eastward, as far as the north end of Currituck river or inlet, upon a strait westerly line to Wyonoak creek, which lieth within or about the degrees of thirty‑six and thirty minutes, northern latitude; and so west, in a direct line, as far as the south seas".22

In the course of time which elapsed between the date of the patent and the first controversy over the true location of the boundary, Wyonoak creek lost its name, and consequently a dispute arose as to where it lay. Some Virginians claimed it was the same as Wicocon, while others in Carolina maintained that it was the Nottoway river, there being a territory of •some 15 miles between the two streams.23

 p9  Conflicting jurisdiction over the line arose frequently between 1680 and 1728.​24In 1710 a joint commission representing Virginia and North Carolina undertook the task of surveying and establishing the boundary, but the results were unsatisfactory, "due to the obstructionary tactics of the North Carolina Commissioners", and the failure to definitely locate Wyonoak creek.​25Governor Alexander Spotswood of Virginia by proclamation dated December 8, 1710, prohibited persons from taking up land between the Nottoway river and the Maherine river, within the bounds in controversy between Virginia and Carolina.​26Again in 1714 the controversy arose, and, because North Carolina continued to grant land in the disputed territory, and because of the "loose and disorderly" people there, Governor Spotswood proposed that Virginia survey a line through Nottoway river, and North Carolina one through Wicocon creek, and that all settlers between these lines be removed.​b He even went so far as to lay off a line through Nottoway river, and, when North Carolina did not establish one through Wicocon, he threatened to do so and remove the intervening settlers,​27and proclaimed on June 16, 1714, that the line lately run from the mouth of the Nottoway till it intersects Roanoak river now determines the limits of the controverted lands next to Virginia, and that the land was open for settlement.​28 This movement failed to settle the dispute, but in 1715, when a new Governor arrived in North Carolina, an agreement was reached by which the boundary was to be established.29

Governor Spottswood, of Virginia, and Governor Charles Eden, of North Carolina, proposed that the dispute should be settled in the following manner: "That from the mouth of Corratuck River or Inlett, and setting the compass on the North Shore thereof a due West Line be run and fairly marked; and if it happens to cutt Chowan River between the mouths of Nottoway River and Wiccons Creek, then shall the same direct course be continued towards the mountains, and be ever deemed the Sole Dividing Line between Virginia and Carolina. That if the said West Line cuts Chowan River to the Southward of Wiccon Creek, then from that point of Intersection the bounds shall be allowed to continue up the Middle of the said Chowan River to the middle of the entrance into the said Wiccon Creek, and from thence a Due West Line shall divide the said two Governments. That if the said West Line cuts Blackwater River to the Northward of Nottoway River; then from that point of intersection, the Bounds shall be allowed to continue down the middle of the said Blackwater River to the  p10 middle of the entrance into the Nottoway River, and from thence a Due West Line shall divide the said two Governments."30

Another delay ensued, however, and it was not until the year 1728 that the line was surveyed. In that year North Carolina appointed Christopher Gale, Edward Moseley, William Little and John Lovick as her commissioners, and Virginia appointed William Byrd, William Dandridge and Richard Fitz-William.​31The journal of William Byrd is very spicy in the narrative of the incidents of this trip. His History of the Dividing Line Betwixt Virginia and North Carolina has long been considered as a classic of the colonial period of American literature, and an invaluable source for the social history of that time. It consists mainly of a sketch of English colonization in America, description of the regions traversed by the surveying expedition, customs of the Indians and life of the pioneers. Byrd also wrote another account of the survey, which he called The Secret History of the Line, of half the length of the other, in which the principal characters appear under the guise of fictitious names, and which contains considerable information regarding the expedition not contained in the History of the Dividing Line.32

The Commissioners met at "Corratuck Inlet" March 5, 1728, and, after some delay in dispute as to the exact starting place, began at a point 200 yards beyond the north shore of the Inlet.​33Proceeding westward, the surveyors on April 2 reached the Blackwater river, •half a mile above the mouth of the Nottoway river, and, following the compromise agreement between the Governors of Virginia and North Carolina, the line was then run from the mouth of the Nottoway westward as far as Peter's Creek, where the Virginia Commissioners terminated their survey on October 26, 1728, the North Carolina Commissioners having abandoned their work at Buzzard creek twenty‑one days earlier.​34Thus the boundary dispute was settled, its location determined, and the 36 degree 30 minute parallel established, although in later years there was dissatisfaction over the result, when it developed that the eastern beginning of the line had not been correctly identified, and a relocation was necessary.35

In 1749 this line was extended farther westward by Joshua Fry and Peter Jefferson, commissioners on the part of Virginia, and Daniel Weldon and William Churton on the part of North Carolina. They began their survey at Peters creek, where the commissioners in 1728 had terminated their line, and proceeded •88 miles westward to a point on Steep Rock creek, •about 25 miles southeast of Abingdon, Virginia.36

 p11  Prior to 1775 Colonel John Donelson, acting on the authority of Virginia, extended somewhat the line between Virginia and North Carolina.37

By 1779 it was found that the inhabitants of Virginia and North Carolina had settled themselves farther westward than the boundary between the two states had hitherto been marked, and it became expedient that the line be again extended.​38 Accordingly, the commissioners appointed by Virginia, Dr. Thomas Walker and Daniel Smith, and those appointed by North Carolina, Richard Henderson, John Williams and William Bailey Smith, met at Steep Rock creek early in September, 1779, to make the survey.​39 Of this interesting expedition General Daniel Smith, the junior Virginia commissioner, kept a journal,​40 valuable in its information regarding the topography of the Tennessee-Cumberland region in 1779‑1780, and revealing a vivid picture of the hardships that confronted the pioneer surveyors in the wilderness.

After some delay in fixing the beginning point to the satisfaction of all, the line was run as far as Carter's valley, •45 miles west of Steep Rock creek, where the Carolina commissioners conceived the line was farther south than it ought to be. Their report to the Governor of North Carolina, dated Cumberland Gap, November 17, 1779, stated that "the Gentlemen from Virginia alleged that the line was, by their observation, too far North."​41 After some delay, during which no agreement was reached, it was proposed that each commission run its own line and let future observers, hereafter to be appointed, determine which was right.​42 In this manner the survey was continued to Cumberland mountain, where the North Carolina commissioners declined to proceed farther, and returned to their homes. The Virginia commission, however, proceeded alone, and, on November 22, 1779, reached the Clear Fork of Cumberland river. Here they had serious thought of going no farther, but finally decided it more conducive to the good of the State in general to keep on. For various reasons, however,​43 it was deemed advisable to leave off running the line at this point, and go farther to the westward into a better country. Making their way to Cumberland river, they built canoes, and, after many difficulties, proceeded by water and on February 25, 1780, arrived at a point in the proper latitude, as they thought, on the west bank of the Cumberland river, •109 miles west of the Clear Fork. From this point the line was continued on to the Tennessee river, where the surveyors arrived on March 23, 1780, having run the line as far west as they had been authorized to do. They, however, journeyed on and marked the termination of the line on the Mississippi river, but did not survey  p12 the intervening distance.​44 In consequence of the failure of the surveyors to make due allowance for the variation of the needle, Walker's Line, as it is more familiarly known, deflected continuously to the north. The line first touched Tennessee near latitude 36 degrees and 34 minutes, and reached the Tennessee river near latitude 36 degrees and 40 minutes, •more than 12 miles too far north in a direct line, or •about 17 miles by way of the river.45

For a number of years North Carolina recognized only that part of the line east of Cumberland Gap, as run by her commissioners, and known as Henderson's Line, which ran •some two miles farther north than Walker's Line. In 1789 a committee of the North Carolina Legislature recommended the adoption of Walker's Line, and in the following year that body assented by proper act. The Line was confirmed by the Virginia Assembly December 7, 1791.46

In 1789 North Carolina ceded to the United States the Tennessee Territory. Until 1792 William Blount, Territorial Governor of Tennessee, insisted that the first resolution of the Carolina Legislature in 1789 was not a confirmation of Walker's Line; and that the second resolution of 1790, passed many months after the acceptance of the cession by Congress, was invalid to the United States, of which Tennessee was then a territory. He further urged that North Carolina had for ten years before the cession exercised jurisdiction to Henderson's line, and announced his intention of maintaining the same. Matters remained in this confused shape until 1801, when the two states appointed a joint commission to determine the true boundary.​47 Kentucky also made plans to appoint commissioners to mark the line in 1801,​48 but the act was repealed in 1802 because of the lack of knowledge of the chartered limits of Virginia and North Carolina.49

Pursuing the plans for marking the boundary, James Martin, Creed Taylor and Peter Johnson were appointed commissioners on the part of Virginia, and John Sevier, George Rutledge and Moses Fisk, on the part of Tennessee. An interesting account of the survey was recorded by John Sevier in his Journal,​50 which also reveals exciting reflections of pioneer thoughts and conditions. They "met at Capt. Craigs and agreed to meet Tuesday morning (October 5, 1802) on the line near Cap. Duncans on Holston."​51 Failing to agree on the exact location of the beginning, they finally, on October 23, entered into a compromise and agreed to run the boundary parallel to the two lines in dispute, and midway between them, finding that the true distance between Walker's and Henderson's lines to be •two and one‑half miles and 25 poles.​52 On December 8, 1802, they  p13 arrived at Cumberland Gap, and finished the line, "which struck the Caintucky line about one quarter So of the Gap."​53 In 1803 the acts of the commissioners were confirmed by appropriate legislation in both states. Thus the boundary between Virginia and Tennessee was finally established, and, although subsequent negotiations have occurred, no change has been made.54

West of Cumberland Gap, however, there was no Henderson line, and no such convenient way of settling the disputed boundary between Kentucky and Tennessee. Repeated efforts were made by Kentucky to secure action in the matter,​55 but no definite steps were taken and no commission appointed until 1819.

Virginia claimed that her original charter gave her bounds to the Pacific Ocean. This was, however, restricted by treaty with France, to the middle line of the Mississippi river, in 1763.​56 When the commissioners ran the boundary line westward in 1779‑1780, Virginia's title to the territory in Kentucky extended to the Cherokee, or Tennessee, river, as designated by the treaty with the Six Nations at Fort Stanwix in 1768. That portion west of the Tennessee river was conceded to the Chickasaw Indians. In 1818, by ratification of a treaty entered into between Isaac Shelby and Andrew Jackson, on the part of the United States, and the Chickasaw Indians, Kentucky acquired the land between the Tennessee and Mississippi rivers, north of the parallel 36 degrees and 30 minutes.

Since this line had never been marked, the General Assembly of Kentucky accordingly approved an act on February 8, 1819, for appointing two commissioners to run and mark the southern boundary line, between the Tennessee and Mississippi rivers, upon a parallel of 36 degrees and 30 minutes of north latitude.​57 Luke Munsell and Robert Alexander were selected to extend and mark the boundary to the westernmost middle line of the Mississippi river. Tennessee, becoming apprehensive that Kentucky might claim the latitude of 36 degrees and 30 minutes as her entire boundary instead of the line as marked by Walker, took prompt action upon the meeting of her Legislature, and looked to an adjustment of the boundary line. In 1819 the state appointed Felix Grundy and William L. Brown as commissioners to go to Frankfort upon the meeting of the General Assembly of Kentucky, and negotiate respecting the boundary. Their argument was chiefly a plea that the citizens of both states, who lived in the neighborhood of Walker's Line, seemed to be perfectly satisfied with that boundary, and would be opposed to any alteration.​58 Kentucky was finally induced to appoint a commission composed of John J. Crittenden and Robert Trimble. An agreement was reached in 1820 whereby the boundary was to be  p14 Walker's Line to the Tennessee river; thence up the said river to Alexander and Munsell's Line; thence with the said line to the Mississippi river. This agreement, dated February 2, 1820, was approved by the Legislature of Kentucky on February 11.​59 In the same compact it was agreed that all vacant and unappropriated lands lying north of the parallel 36 degrees and 30 minutes and south of Walker's Line should be subject to the disposition of Kentucky.​60 This allowed Kentucky proprietary rights to the soil so far as it was vacant and unappropriated, and Tennessee the political sovereignty over this strip of land.61

On February 14, 1820, an act was approved by the Kentucky Legislature providing for the laying off of the lands west of the Tennessee river into townships and sections.​62 W. T. Henderson, appointed superintendent of the survey under the act, commenced on the west bank of the Tennessee river at the state line, and proceeded west, measuring the same, and marking townships, quarter sections and section corners, until he arrived at the Mississippi river.63

In 1821 William Steele, commissioner on the part of Kentucky, and Absalom Looney, commissioner on the part of Tennessee, surveyed and marked the portion of the line omitted by Dr. Walker in his survey of 1779‑1780.​64 Their line, "commencing at seven pines and two black oaks on the top of Cumberland meant, on the Tennessee line, •one mile and a half and twelve poles southwardly of Cumberland Gap", and extending "to three hackberry trees, of the bank of Cumberland river, opposite to the point where Walker's old marked line strikes the Cumberland river on the west side", was approved by the Legislature of Kentucky November 22, 1821.65

While the early surveys in a measure established the political boundary between the states, they left the southern boundary of the lands in which Kentucky had a proprietary right entirely vague. The line was 36 degree and 30 minutes, but where that might be on the ground itself, no one knew. Walker had tried to run it, but had missed, and later surveys had sought to follow his line, and not the original chartered line.66

The unappropriated lands lying north of the line 36 degrees and 30 minutes, and south of Walker's Line, were opened to persons at the rate of $20.00 per 100 acres after March, 1825, and the Governor of Kentucky was authorized to appoint a surveyor to mark the 36 degrees and 30 minute parallel from the Tennessee river to the top of Cumberland mountain.​67 Later it was proclaimed that these vacant lands were opened to persons at the rate of $10.00 per 100 acres, and the Governor of Kentucky was authorized to appoint a capable mathematician to run the line 36 degrees and 30 minutes from a point on Walker's Line near  p15 Cumberland Gap, to the point where Alexander and Munsell's line began on the Tennessee river.​68 A delay ensued, in which Governor John Desha of Kentucky sought to engage the services of a competent mathematician and surveyor. On March 11, 1826, Thomas J. Matthews, Professor of Mathematics at Transylvania University, was appointed to run the line.​69 On July 20, 1826, he proceeded to Cumberland Gap, accompanied by an assistant, William Agum, surveyor, Charles Bracken, and a suitable company of hands.​70 The line was run westward, with Matthews making careful observations at six various stations along the way. The whole length of the line was found, by the field notes, to be •238 miles and 73 poles, which, towards the east end, fell considerably south of Steele's line run in 1821, and gradually approached it in the course westward, and eventually striking it near Clarksville,​71 The report of the survey was submitted to the Governor December 1, 1826, and on February 9, 1828, the line of 36 degrees and 30 minutes, as run by Matthews, was ratified and confirmed the true chartered line, and owners of land warrants purchased from Kentucky were authorized to locate same on any waste and unappropriated land up to said line.72

On August 24, 1827, citizens of Trigg County, Kentucky, petitioned the Governor to establish the true boundary between their county and Tennessee, east of the Tennessee river.​73 By 1830 the dispute had spread to include the boundary between Kentucky and Tennessee on Walker's Line along the southern borders of Allen, Simpson and Trigg counties. To settle the dispute, Kentucky appointed Dr. Luke Munsell as her commissioner, and Tennessee appointed James Bright. They began their survey at the southeast corner of Allen county, and continued along the line into Simpson county "until they came to a certain beachº tree, near Drakes creek, where the reputed line took an offset to the southwest to a certain black jack, standing in the road leading from Nashville to Lexington, and from thence taking another offset northwardly to a certain gum tree, standing in Walker's original line. It was claimed that the territory, included in this triangular space, contained some ten or fifteen families and had always been considered as belonging to Kentucky, and the civil rights of those citizens had always been subject to, and determined by the laws of Kentucky. In the report of the commissioners to the Legislature they recommended that this triangular space remain a part of Kentucky.74

In connection with this peculiarity in the boundary, there is a persistent story, which seems much more than just idle tradition, that the jog in the line  p16 was due to the Kentucky patriotism of Sandford Duncan, who was later appointed a commissioner to settle the disputed boundary in the neighborhood.​75 Mr. Duncan, the owner of much land and many slaves, lived in this triangle, and, hearing that the commissioners were surveying the line, feared that a straight course, if pursued, would leave his land in Tennessee. This was far from his wishes, and, having a large, beautiful home and a bounteous supply of that which would appeal to any crowd where the object was to have a good time socially, he went out to meet the surveyors, and insisted that the poor tired fellows spend the week‑end as his guests. He further told them that he had provided a barrel of the finest Kentucky Bourbon whiskey, which he had placed at a certain point, and which they could have, providing it was in Kentucky, and not Tennessee, in which they drank it. Needless to say that when these fellows returned to their work on Monday morning the state line was, by oversight, slightly distorted to point Tennesseeward and back, obligingly leaving all of Mr. Duncan's land in Kentucky.76

Proceeding with their survey, the commissioners found and plainly marked Walker's original line from the southeast corner of Trigg county to within but •one mile of Cumberland river, where it terminated. They extended the line, however, according to its course at its termination, across to the Tennessee river. It appears that they ran due north, from the point where they struck the Tennessee river, until they intersected another line, said to have been run by Walker, eastward, by way of correction of his original line, on the east of Cumberland river.​77 The citizens west of Cumberland river, included between those two lines, appeared to have always be considered as belonging to the state of Tennessee, and they had ever been subject to the jurisdiction of her laws.

The commissioners reported to the Legislature concerning this break in the line, and recommended that Walker's original line, as marked by them to Cumberland river, thence down the middle of the same river, to the line run by Walker, eastward from the Tennessee river, by way of correction, to his line east of the Cumberland river, and with the said line to the Tennessee river, ought to be recognized and established by the two states, as permanent division line of their territory and jurisdiction. The report of the commissioners was approved by the Kentucky Legislature January 15, 1831, and by the Legislature of Tennessee September 19, 1831.78

Again, in 1844, the question came up regarding this portion of the boundary, and on January 20 the Legislature of Tennessee passed an act for the appointment of a joint commission to run and mark certain portions of the line between the two states. On January 29, 1845, the Kentucky Legislature passed an act  p17 concurring with the action of the former state. On April 19 of the latter year Tennessee appointed Clement W. Nance and William P. McLain, Esqrs., commissioners on the part of the state, and, on May 8 of the same year, Kentucky appointed Joseph R. Underwood and Sandford Duncan, Esqrs., commissioners on the part of their state. Joseph R. Underwood resigned his appointment September 22, 1845, having never acted, and the Governor of Kentucky appointed Constant A. Wilson, Esqr., in his place. On October 18, 1845, the commissioners proceeded to discharge the duties assigned to them, and ran •"three miles across the southern border of Christian county, and all that part of Trigg county which lies east of Cumberland river, and all that portion of Fulton county lying west of Reelfoot hills. From these hills they followed the Alexander and Munsell line of 1819. They also ran a new line connecting the eastern terminus of a line from Lineport out, near three miles, with the western terminus, as they say, of Walker's Line, which, if produced, would have crossed Cumberland river near to and below the mouth of Saline creek."79

The joint report of the commissioners to each of their respective states, bearing date of November 8, 1845, signified that they had performed the duties assigned to them, and submitted copies of maps of the lines as run and marked. The Legislature of Tennessee immediately concurred in the report, and recognized the line as run and marked by the joint commission as the true boundary. In January, 1846, the General Assembly of Kentucky passed an act to compensate the commissioners, but failed to concur, adopt and ratify the line. Later the Governor of Tennessee brought this to the attention of the Governor of Kentucky, referring to the uncertainty which prevailed in relation to that portion of the boundary line.​80 Accordingly, by resolution approved February 28, 1849, the boundary line, as run by the commissioners, was recognized as the true boundary between the states of Kentucky and Tennessee, "so far as the same extends".81

As disputes continued to arise, both states saw the necessity of a final and permanent adjustment and marking of their common boundary throughout its whole extent. On February 17, 1858, the Kentucky Legislature approved an act for running the state line between Kentucky and Tennessee.​82 The Governor was authorized to appoint two persons to meet such commissioners as might be appointed by the state of Tennessee, to run and remark the line, beginning on the east bank of the Mississippi river, running thence to the eastern boundary of the state of Kentucky, putting up a large stone every •five miles. They were authorized "to follow the line run by the Virginia commissioners in 1779‑1780, commonly called Walker's Line, as the same is reputed, understood, and acted upon by the said states, their respective authorities and citizens, from the southeastern  p18 corner of Kentucky to the Tennessee river; thence up the same river to the point where the line of Alexander and Munsell, run by them the last year, would leave said river; and then with the line of Alexander and Munsell to the termination thereof, on the Mississippi river, near to and below New Madrid."​83 Under the act, the commissioners were required to begin their line on the Mississippi river and run eastward. Accordingly, the Tennessee commissioners, Benjamin Peoples and O. R. Watkins, and the Kentucky commissioners, Austin P. Cox and C. M. Briggs, met at a place which they named Compromise on the Mississippi river in 1859. For the first time the line was begun at its western extremity, and run eastward, and for the first time the entire line was surveyed and marked. At the very beginning of the survey the commissioners were confronted with a problem, which constitutes one of the most unusual features included within the boundary of Kentucky. This is caused by an unusual meander of the Mississippi river. The parallel 36 degrees and 30 minutes, which had been agreed upon as the true line west of the Tennessee river, happened to strike the Mississippi at a bend known as New Madrid Bend. The Tennessee commissioners claimed that New Madrid Bend, being cut off from Kentucky by the intervening reverse curve of the river which interposed a portion of Missouri, should naturally be included as part of Tennessee. The Kentucky commissioners, however, claimed that this tract of land was north of the parallel 36 degrees and 30 minutes, and east of the Mississippi, and was, therefore, clearly a part of Kentucky. Tennessee had gained so many advantages in running the dividing line, and so much territory north of the parallel 36 degrees and 30 minutes, that the Kentucky commissioners now demanded a strict construction. Accordingly, the small neighborhood, including only a few square miles, and a few hundred people, was attached to Kentucky, and became a part of Fulton county, but the people of the little community are entirely dissevered from their state, and cannot go to their own county seat without first going through Missouri or Tennessee territory.​84 Several attempts on the part of Tennessee have been made to acquire this tract of land, but it still remains a portion of Kentucky.

The commissioners, in their report, discussed the questions connected with the various lines previously run, and doubted that former surveyors had found landmarks of Walker's Line west of the eastern crossing of Cumberland river. Their full report, dated November 11, 1859, was accompanied by section maps tracing the lines as surveyed. On February 28, 1860, the Legislature of Kentucky approved an act relative to the boundary line run by the commissioners, and the same was adopted and recognized as the true boundary between the two states.​85 The acts of the commissioners were confirmed by Tennessee on March 21, 1860.

 p19  Thus, after a controversy of many years, the boundary between Kentucky and Tennessee was established in its entirety to the satisfaction of all, although Kentucky still lost to Tennessee the strip of land north of the 36 degree and 30 minute parallel, about 245 miles long and containing nearly 2,500 square miles. There is no doubt but that had former negotiations and surveys been conducted with an exacting spirit by the Kentucky commissioners, they might have established the true line of 36 degrees and 30 minutes as the boundary. For this acquisition Tennessee is indebted to the failure of the Virginia commissioners to make due allowance for the variation of the needle, which caused their line to swerve continuously to the north, and to the good neighbour policy of her sister state, Kentucky. The Tennessee constitution still adheres to the old imaginary lines, and describes her northern boundary as the 36 degree and 30 minute parallel, copying the language of the cession act. This loose description, however, is guarded by the following average clause: "Provided that the limits and jurisdiction of this state shall extend to any other land and territory now acquired by compact or agreement with other states, or otherwise, although such land and territory are not included within the boundaries hereinbefore designated".86

As for the Ohio river boundary, it originated from the cession of the Northwest Territory to the United States. After the Revolutionary war, the question arose as to whether the states could claim their territory through state sovereignty, or whether the whole should be claimed as a confederation. In 1780 Congress passed a resolution recommending to the states claiming waste and unappropriated lands in the western country a liberal cession to the United States for the common benefit. Virginia participated in the sentiment of patriotism, and on January 2, 1781, passed a resolution for a cession of the lands on the northwest side of the Ohio river to the United States upon certain conditions.​87º This was urged on in Congress for some time, because of the avowed conflicting claim of other states to the designated territory, resulting from the Treaty of Fort Stanwix. Virginia, however, won out, by reason of claim of original proprietor­ship, and by conquest, and the Legislature made a cession conformable to the report of Congress, and on October 20, 1783, passed an act "to authorize the delegates of this state in Congress, to convey to the United States in Congress assembled, all rights of this Commonwealth to the territory northwestward of the river Ohio",​88 in conformity to the terms recommended by Congress. The deed of cession was accepted by the United States March 22, 1784,​89 and with it the transfer of all claim and jurisdiction to the territory within the limits of the Virginia charter lying to the northwest of the Ohio river.

 p20  The Ordinance of July 13, 1787​90 for the erection of a government in the Northwest territory, made a compact between the people of the territory and the people of the United States "that the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free as well to the inhabitants of the said territory, as to the citizens of the United States and those of any other states that may be admitted into the confederacy."

With the beginning of the series of conventions at Danville, in the District of Kentucky, for the separation of that territory from Virginia, the latter proposed "An act concerning the erection of the District of Kentucky into an Independent State."​91 This Compact with Virginia​92 set forth "that the boundary between the proposed state of Virginia, shall remain the same as at present separates the District from the residue of the Commonwealth", and "that the use and navigation of the river Ohio, so far as the territory of the proposed state, or the territory which shall remain within the limits of this Commonwealth lies thereon, shall be free and common to the citizens of the United States, and the respective jurisdictions of this Commonwealth, and of the proposed State, on the river as aforesaid, shall be concurrent only with the states which may possess the opposite shores of the said river."

Early citizens of Kentucky foresaw conflicting interpretations, and suggested that the clause be repealed, or so explained as to prevent confusion, stating that "Virginia only ceded to Congress the land on the northwest side of the Ohio, and not the river itself, and the states which may be established on that side cannot claim a concurrent jurisdiction with us, and that liberality on our part only requires that the citizens of the United States be permitted to enjoy the free navigation thereof; whereas to allow them more would only lay the foundation for confusion and discord."93

Congress consented to the Compact with Virginia in 1791, and Kentucky accepted this in her Constitution, establishing, by the Law of Nations, the low water mark on the northwest side of the Ohio, and the claim to exclusive jurisdiction over the river. In 1800 the Northwest Territory was divided into two governments. In 1802 the enabling act for the admission of Ohio to the Union was passed, and, in drafting her constitution, that state merely referred to her southern boundary as the Ohio river.​94 In 1809 the Illinois Territory was separated from the Indiana Territory, and in 1816 the enabling act for Indiana was passed.

Kentucky soon opposed Ohio's concurrent jurisdiction with the result that  p21 the Legislature of Ohio requested their Governor to correspond with the Governor of Kentucky in order to arrange and define the extent and objects of their several concurring jurisdictions on the river. To this request the Governor of Kentucky refused to cooperate, because a new interpretation of Section 11 of the Compact had been given. At a place on the upper side of the Ohio river in Indiana a considerable body of land formed a peninsula. On the upper side of the peninsula a channel cut it off from the mainland. At the low water mark of the river the channel was dry, but when the river was •10 feet above low water, it became an island. The United States, being the proprietor of the land on the Indiana side issued a patent. Kentucky, likewise, granted a land warrant, and issued a patent for the same. Accordingly the Kentucky patentee brought action of ejectment against the claimant of the United States, who was in possession of the land. The case was taken to the Supreme Court, and Chief Justice Marshall pronounced the final decision that the low water mark was the boundary, and Kentucky had no claim to the peninsula.​95 In reciting the decision, the Chief Justice maintained that "when a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one state is the original proprietor, and grants the territory on one side only, it retains the river within its own domain, and the newly created state extends to the river only. The river, however, is the boundary, and it is the main, the permanent river, which constitutes that boundary, and it would be difficult to draw any other line than the low water mark . . . A tract of land cannot sometimes be in one state, and sometimes in another, according to the rise and fall of the river; it must always be in one or the other." By this decision the Ohio river boundary was virtually settled, but it was not accepted by Virginia, which continued to claim the ordinary high water mark on the Ohio side.

In 1835 the Supreme Court of Kentucky, in the case of Church and others versus Chambers, regarding the transportation of slaves on the Ohio, handed down the decision that Kentucky had jurisdiction over the whole of the river from shore to shore.96

Virginia leased as public some land lying between the low and high water mark on the Ohio side, but the Ohio proprietor, whose land bounded on the river at that point, brought suit of ejectment. It was carried to the Supreme Court of Ohio in 1841, and the Court declared that such land was not common to the public as part of the river, but that it belonged to the adjacent proprietor, and the Court pointed to Marshall's decision that the boundary line was the low water mark on the Ohio side.97

One of the most celebrated arguments over the Virginia-Ohio boundary  p22 occurred in the case of Garner, Thomas and Loraine, as defendants, who aided in the escape of six slaves out of Virginia, belonging to John H. Harwood, on July 9, 1845.​98 Crossing the Ohio, the defendants assisted the slaves out of the boat, and, in going up the bank, were arrested by Virginia authorities and lodged in jail at Parkersburg. In the trial that followed, the question dominant was whether Virginia, by her authorized public functionaries, had violated and insulted the sovereignty of Ohio, by going upon her soil and seizing her citizens. On a legal technicality, by averaging the depth of the water in the channel, it was found that at the place where the boat landed, the edge of the water, at extreme low water, was some 50 or 60 feet in a right line, measuring on the beach, below where it was at that place on the date of the arrest. Samuel Finley Vinton argued the case for Ohio, maintaining that the act was not done within the limit or jurisdiction of Virginia, and that Virginia authorities had no right to arrest people on the north bank of the Ohio. He argued that if Virginia claimed her territory extended to the top the bank on the Ohio side, the slaves were not carried out of Virginia into Ohio. If, on the other hand, she did not column to the top of the bank, she had no jurisdiction thereon. Vinton carried his point so far as to argue that Virginia had no authority to claim the territory northwest of the Ohio river, and therefore had no authority to cede it to the United States. He denied the validity of the charter of 1609, and held that the foundation of the Virginia title to the land northwest of the Ohio river had its beginning with the treaty with France in 1763; therefore she had no authority to cede the land to the United States, and so the middle of the Ohio river was the actual boundary. The Supreme Court of Virginia disagreed in its interpretation of the boundary and was unable to reach a decision, with the result that the defendants were dismissed upon their recognizance, and no subsequent trial was ever held.99

Subsequently the states appointed commissioners to settle the boundary dispute. For Ohio, Thomas Ewing, John Brough and James Collier; for Virginia, William C. Rives, William Green and George W. Thompson. They were authorized to negotiate with Kentucky, but no Kentucky commissioners were appointed.​100 They convened at Washington, D. C., in 1848, and negotiations commenced with propositions from the Ohio commissioners, the first of which was to claim the middle of the Ohio river as the boundary.​101 Virginia persisted in her claim to the land northwest of the Ohio by the limits of her charter, and by the fact that Congress had accepted the ceded territory accordingly. Consequently she reserved to herself her former title as well as of soil and jurisdiction as of sovereign dominion over the whole Ohio river, and the northern or northwestern bank was a boundary. She declared that her "sovereignty and  p23 jurisdiction was co‑extensive with the bed of the river between the banks at all times, whether the entire bed be at all times covered by the water of the river or not, and that as well as in regard to the soil of such bed when covered by the water as when it is left bare by the temporary receding of the water."​102 She claimed that Ohio held no title to the soil which may at any time be beneath the water in the river.​103 Various other propositions were offered by the commissioners, but they adjourned without making any adjustment. Afterwards it was resolved by the Legislature of Ohio that their southern boundary was the center of the main channel of the river, but Kentucky, as well as Virginia, refused to recognize her right to concurrent jurisdiction.

In the case of McFarland versus McKnight, in 1846, the Supreme Court of Kentucky recognized the constitutionality of retaining dominion over the Ohio river.

In 1858 the Ohio Court admitted negligence in a case resulting from an occurrence on the Ohio river, but denied judgment on the ground that Ohio Courts lacked jurisdiction, in as much as the negligence had occurred beyond the low water mark.104

Again, in 1859, the Supreme Court of Kentucky handed down the decision that Kentucky had exclusive jurisdiction over the river, in a case resulting from a marriage performed on a boat in the middle of the river by an Ohio Justice of the Peace. Pursuing the disagreement over the boundary, during the building of the Covington-Cincinnati bridge, Ohio attempted to claim to the center of the bridge without result, and, in 1877, the Ohio Fish Commission suggested that the boundary be established in the middle of the river, but the only outcome of their movement was the printing of their report.105

In 1903 the Legislature of Kentucky passed an act declaring that "allº that portion of the bed of the Ohio, lying north of the thread of the stream, except such portions as may be accretions to islands privately owned, is hereby declared to be vacant and unappropriated property, and may be used for county purposes." Accordingly an individual filed for a tract of •200 acres beneath the waters of the Ohio, lying between the thread of the stream and the low water mark on the north shore. The Supreme Court of Kentucky declared Kentucky's jurisdiction extended to the low water mark on the north shore, and owned the bed of the Ohio and had power to issue patents to the land, but, since it had not yet been done, the petition was dismissed.106

As for the state of Indiana, Kentucky recognizes her right of concurrent jurisdiction, possibly because of the strong claim made by the former state. Indiana incorporated in her constitution the following clause: "The State of Indiana shall have concurrent jurisdiction in civil and criminal cases with the  p24 state of Kentucky on the Ohio river", and an Indiana statute states: "Whenever any part of the boundary of any county is the Ohio river, all process issuing to the officers of such county may be served on the said river, so far as the same is the boundary of the state".107

The first controversy over the boundary between Kentucky and Indiana resulted in the case of Handly's Lessees versus Anthony in 1820, hereinbefore referred to. The decision rendered in the case by Chief Justice Marshall became the basis of all further decisions regarding the Ohio river boundary, leaving only the confused interpretation of the low water mark and the question of concurrent jurisdiction to be argued.

In the several cases which have come before the Supreme Court of Indiana, the claim of concurrent jurisdiction has been upheld.​108 This recognition was first made in 1837 in the case of Arnold and Parish versus Shields, et al. Here the Supreme Court of Kentucky opined that Indiana was entitled to as much power as that possessed by Kentucky over so much of the Ohio as flowed between them, and neither could exercise any authority over the common river, so as to destroy the concurrent rights of the other.​109 In 1873, in the case of Sherlock et al. versus Alling, Administrator, the Indiana Court distinguished between boundary and jurisdiction. In the case, two boats collided in mid channel near the Kentucky shore, nature man was killed. The administrator brought suit for damages on the ground of negligence. The defense maintained that the Indiana Court lacked jurisdiction, inasmuch as it occurred near the Kentucky shore, concluding "that the state of Indiana possessed concurrent jurisdiction with Kentucky on the Ohio, where the two states possessed the opposite shores, although, for the purpose of determining the boundaries, low water mark on the northwest side of the river is the true line."110

Perhaps the most celebrated dispute over the Ohio river boundary came up in 1875 over the owner­ship of Green River Island, opposite the mouth of Green river. This resulted in the case of Indiana versus Kentucky,​111 with the latter proving to have exercised the right of possession for many years, during which time the former had made no attempt to claim the area. This island, separated from the Indiana mainland by a bayou, was •five and a half miles long and a little over a mile wide at its widest, tapering to a point at each end, and containing •near 2,000 acres. Other islands adjoining included Green River Island Towhead, containing •100 acres; Buck Island, containing •14 acres; and a narrow strip between the bayou and the 1875 survey, containing 100 acres. At the time of Kentucky's admission to the Union, the channel of the Ohio river lay north of Green River Island, and she had continually exercised sovereignty over the land. For many years, even in ordinary high water, steamboats passed down  p25 the bayou, or chute, between this island and the Indiana shore, but annual sediments, and the rapid growth of willow and cottonwoods, caused the chute to fill up, and the tract to become actually a part of the mainland.​112 The Court showed, however, that the land had been claimed by Virginia, prior to Kentucky, for she granted a Military Warrant to John Slaughter February 10, 1784; he had •600 acres surveyed in March, 1785, as part of the Warrant; the tract was conveyed by Virginia to him February 10, 1790. This was it area set aside by Virginia for her soldiers, and the location was identified as the "first large island below the mouth of the Green river".​113 When Virginia opened her land office in 1779, she prohibited the location of entries northwest of the Ohio river. In September, 1821, the Slaughter heirs of Virginia brought suit of ejectment against Garrett and others, who were in possession. The case was tried in 1834, with judgment in favor of the heirs. Then Garrett purchased 100 acres of the tract from Levi Jones, claimant as heir of Slaughter; Jones assigned his note to James Rouse, who in turn assigned it to Jackson clean; Garrett then brought suit because the writ of ejectment was served as on Kentucky territory, and which he considered as Indiana territory. The courts declared Green River Island to be in Kentucky, and Garrett's bill was dismissed with costs.114

In 1806, a United States Survey, laying off townships northwest of the Ohio river, ran the line along the north bank of Green River Island Bayou, and placed the Island in Kentucky. In 1811 Zadoc Cramer observed the Green River Islands, stating "You come to these Islands immediately after you get around the right hand point just below the mouth of Green river. The first is a fine large island, pretty close to the right shore, •about six miles long, having several families settled on it. The second island lies to the left, alongside the first, and near its lower end. Channel left side of both."​115 Kentucky issued her first patent to land on Green River Island in 1818 — •400 acres to John Slayden, surveyed March 24.​116 He was listed in 1819 on the Tax Book of Henderson county, Kentucky, with this tract of land on Green River Island.​117 In 1820 Aneas McCallister was listed on the Tax Book of Henderson county with •120 acres on Green River Island, and later, in the 1830s, other McCallisters were issued warrants for land on the Island.

While Kentucky had always claimed the Island, the river had gradually changed its course until the tract was not separated at all from the mainland, and the island became a part of the northern bank. This brought on the dispute over the owner­ship, pursuant to which the Kentucky Legislature, on April 21, 1873, approved an act to fix and determine the boundary line between Kentucky and Indiana, near Evansville. Afterwards the Governor of Kentucky appointed  p26 D. N. Walden, of Henderson county, a commissioner to carry out the specified provisions of the act. The state of Indiana also passed an act for the same purpose, approved February 27, 1875, and afterwards appointed August Pfafflin, of Evansville, Indiana, as commissioner. The commissioners accordingly ran the boundary line and made the survey in the manner and form required by said acts, and in running the line, they were governed by the survey originally made by the government of the United States in 1806. They established proper monuments along the line of survey, and within ten days afterwards they reduced to writing the metes, bounds and land marks, and signed and acknowledged same before S. Sormson, Clerk of the Vanderburg Circuit Court of Indiana, and said survey was filed and recorded in the office of the Clerk of the Henderson County Court. By an act of the Kentucky Legislature, approved March 15, 1878, it was enacted that the report of the commissioners be confirmed, and that the boundary as marked by them be the boundary between Kentucky and Indiana "beginning at a stake on the bank of the Ohio river, on the south line of fractional section fourteen, township seven, south of range ten, west of the second meridian, opposite the mouth of Green river . . . . and to a point opposite the foot of Green River Island." "That the said survey shall be conclusive evidence of the said boundary line so run, dividing said island, so called, from the state of Indiana, in any of the courts of this state."​118 Upon coming before the Legislature of Indiana, however, it was rejected, and was later taken to the Supreme Court in the case of Indiana versus Kentucky. It was argued April 9 and 10, 1890, and decided May 19 of that year, with judgment in favor of Kentucky. The old rule, that the shifting of a river did not carry a boundary with it, was applied, and Kentucky was awarded the Island.​119 This, however, did not entirely settle the dispute, for, pursuant to negotiations carried on between representatives of Kentucky and Indiana, the 1942 General Assembly of Kentucky enacted legislation fixing the boundary between Kentucky and Indiana, beginning at a point fixed by the Supreme Court of the United States,​120º and to intersect specified markings at the low water mark on the right side of the river, subject to a reciprocal law by Indiana, and approval of the United States Congress to the compact.121

Pursuing the Kentucky-Indiana jurisdictional disputes over the Ohio river, the Supreme Court of the United States, in 1898, in the case of Henderson Bridge Company versus Henderson City, upheld the right of Henderson City to tax the Company's bridge from the Kentucky side to the low water mark on the Indiana side, on the ground that Kentucky owned the river to the north shore at low water mark.122

 p27  In a decision of 1904, in a case where the jurisdiction of Indiana was denied in an Indiana Court in the matter of the service of a suit on a steamboat on the Ohio river near the Indiana side, the opinion of the Supreme Court, as read by Justice Holmes, upheld Indiana's concurrent jurisdiction, stating that "what the Virginia Compact most certainly conferred on the states north of the Ohio, was the right to administer the law below the low water mark . . . . To avoid misunderstanding, it may be well to add that the concurrent jurisdiction given is jurisdiction on the river, and does not extend to permanent structures attached to the river bed and within the boundary of one or the other state."123

Illinois, while claiming concurrent jurisdiction with Kentucky, tends to reject the low water mark boundary and looks toward the middle of the stream, maintaining that "at common law, if the lands are bounded by a stream not navigable, the rights of the riparian owner extend to the middle thread of the current". The doctrine was promulgated in cases pertaining to the Mississippi, and no such cases pertaining to the Ohio have been reviewed by the Supreme Court of Illinois. Yet the Court has gone on record to the effect that the Mississippi is not a navigable stream at common law, such a stream being defined as one in which the tide ebbs and flows. Certainly the Court would not reverse itself in a case pertaining to the Ohio river. Illinois has provided statutes for concurrent jurisdiction, one of which reads "Each county bounded by either the Mississippi, Ohio or Wabash, shall have jurisdiction over such river to the extent it is so bounded, which jurisdiction may be exercised concurrently with the contiguous states bounded by such rivers."124

As for West Virginia and the Ohio river boundary, the reason she has refused to arbitrate the boundary and jurisdictional question is that she has adopted the top of the bank interpretation. This was first advanced by the Supreme Court of the State in 1883, declaring that riparian owners hold titles to the ordinary high water mark on the Ohio side of the river. In the following year the Court declared the jurisdiction of West Virginia to be co‑extensive with the waters of the Ohio while confined within its banks. The Court defined a river, according to the most approved writers on the Laws of Nations, "to consist of the water, the bed and the banks. It is a compound idea; it cannot exist in the absence of any of its constituent parts. Deprive it of a bank, and it loses its character of a river". The West Virginia Constitution of 1872 maintains that the State's jurisdiction includes the bed, bank and shores of the Ohio river, and the West Virginia Code of 1937 declares the jurisdiction of the State is co‑extensive with the water of the Ohio river while confined within its banks.125

Such is the Ohio river boundary; with only Indiana apparently accepting a rational and legal point of view concerning it — that the boundary of the  p28 states formed of the old Northwest Territory extends only to low water mark on the northern shore, but that these states have concurrent jurisdiction on the entire river, where it touches their shores, with West Virginia and Kentucky. The remaining states which are touched by the Ohio river, each has a different point of view. West Virginia maintains that her boundary extends to the top of the bank on the Ohio side and that she has exclusive jurisdiction over the same area. Ohio accepts the low water mark as the boundary line, and limits her jurisdiction to the same. Kentucky accepts the low water boundary line, and admits that Indiana has concurrent jurisdiction with her over the river, but at the same time she refuses to allow Ohio the same privilege. Illinois, while asserting the right of concurrent jurisdiction with Kentucky, tends to claim the middle of the stream as the boundary, rather than observe the low water mark.126

The entire eastern boundary of Kentucky, first between Virginia and Kentucky and later between West Virginia and Kentucky has not changed since 1799.​127 Virginia and Kentucky began negotiations as early as 1796 for the purpose of determining the exact location of the boundary between the two states.​128 On October 14, 1799 the commissioners of Virginia and Kentucky, appointed to establish the boundary, entered into a written agreement, and proceeded to execute the duties assigned them. The commissioners on the part of Virginia were Archibald Stuart, General Joseph Martin and Creed Taylor, Esquires, and John Coburn, Robert Johnson and Buckner Thruston, Esquires, on the part of Kentucky. They met at the forks of the Great Sandy River, according to appointment, and, taking into consideration the act of separation, agreed that the boundary line between the two states be and remain as follows: "To begin at the point where the Carolina, now Tennessee, line crosses the top of the Cumberland mountain, near Cumberland Gap; thence north-eastwardly along the top, or highest part of the said Cumberland mountain, keeping between the headwaters of Cumberland and Kentucky rivers, on the west side thereof, and the headwaters of Powell's and Guest's rivers, and the pond fork of Sandy, on the east side thereof, continuing along the said top, or highest part of said mountain, crossing the road leading over the same at the Little Paint Gap, where by some it is called the Hollow mountain, and where it terminates at the west fork of Sandy, commonly called Russell's fork; thence with a line to be run north forty-five degrees east till it intersects the other great principal branch of Sandy, commonly called the northeastwardly branch; thence down the said north-eastwardly branch to its junction with the main west branch and down main Sandy to its confluence with the  p29 Ohio. And whereas doubts have heretofore prevailed which of the main branches of Sandy the act for dividing the county of Fincastle (which is the act referred to for the line between the two states) meant and intended that the line should run up,​129 and locators have been led into errors in entering their land warrants; it is therefore unanimously agreed between the said commissioners, that no land claims founded on entries within the forks of Sandy, or east of the Cumberland mountain on the waters of Sandy, previous to October 1, 1799, on either side of the before mentioned line to be run from the end of the said Cumberland mountain to intersect the said main north-eastwardly branch of Sandy, ought to be in any wise affected by said doubts which have existed respecting the said line; but that the said claims ought to remain valid and secure as if no such doubts had existed, or as if the said territory had been within the acknowledged limits of either state, that is to say, that all entries of land made in the offices of either state, which by this adjustment of the line falls into the other, shall be as valid as if made in the offices of that state in which the land lies."​130 The above agreement was approved by the Legislatures of both states, and the line as described therein was made the boundary. When West Virginia separated from Virginia and became a state in 1863, she took over the Kentucky boundary that formerly delimited Virginia on the west, in so far as that old Virginia line was the boundary of the new state. Thus, by the old boundary laws, Virginia, and later West Virginia, retained the whole of the Sandy river, so far as it was designated as the line, in their own territory, and the boundary became the low water mark on the Kentucky side of the stream.

The boundary between Kentucky and Missouri is the middle of the Mississippi river, and dates from the Treaty with France in 1763, which stated: "In order to re‑establish peace and solid and durable foundations, and to remove forever all subjects of dispute with regard to the limits of the British and French territories on the continent of America, that for the future, the confines between the dominions of his Britannic majesty in that part of the world, shall be fixed irrevocably by a line drawn along the middle of the river Mississippi, from its source to the river Iberville".​131 The line is the channel as it was then, and subsequent changes in the channel have been declared of no effect. Through the adjudication of suits arising over the owner­ship of certain islands in the Mississippi river, the United States Supreme Court laid down rules concerning  p30 such cases. Foremost among these islands of questionable owner­ship was Wolf Island, in the river below Columbus, now Hickman county, Kentucky. At an early date, however, Virginia had recognized and claimed the island. On February 25, 1782, Jacob Myers and William Shannon, as tenants in common, entered •5,000 acres of land upon five treasury warrants; •3,000 acres being issued in Myers' name, Nos. 7070, 7100, 7099; the balance, Nos. 8032 and 8033, as assignee of Clough Overton; beginning at the lower end of the arable land, in the big island nearly in the middle of the Mississippi river, opposite the Iron Banks, computed to be •about eighteen miles below the mouth of the Ohio, thence to extend up both sides of the island so as to include all the ground on the same fit for cultivation.​132 The entry, however, was not surveyed, carried into grant, or withdrawn.

On observing the island, in his travel down the Mississippi river in 1811, Zadoc Cramer stated:​133 "Wolf Island No. 5, is a large island lying to the right, though, when opposite its head it seems to divide the current equally. It is •six miles long on its left side, while the right is •ten, and five miles broad. •15,000 acres of first rate land. A Mr. James Hunter, the only man I ever knew who seemed to take a pride in letting it be known that he was professional gambler, is the only occupant of Wolf Island at present. They say he has on it 1000 head of hogs, and a large stock of cattle, with whose beef and pork he supplies boats, barges, keels, etc., passing up and down the river, together with butter, milk, etc."

On January 29, 1836, the General Assembly of Kentucky passed an act to protect the actual and bona fide settlers on islands in the Mississippi river, "within the jurisdiction of this Commonwealth". On February 15, 1837, the Kentucky Legislature passed an act appointing the Treasurers of the Board of Internal Improvement residing in the counties of Hickman and McCracken commissioners "with full powers to grant, sell, and dispose of all the islands in the Mississippi river, which belong to this state, which are generally known as islands Nos. 1, 2, 3, 4, (now Carlisle county) 5, or Wolf Island (now Hickman county) 8, (now Fulton county) and Cash Island (now Ballard county) in the Ohio river." The commissioners were authorized to grant to bona fide settlers to the amount of •320 acres each by the first of k10m and then to see the balance at Columbus in tracts of •300 acres at the rate of twenty-five cents per acre, with the net proceeds being divided equally between the counties of Graves, Calloway, McCracken and Hickman.​134 Accordingly Kentucky Land Warrants were issued for land on the islands, with much of that on Wolf Island being taken up by Henry L. Price, John P. and Benjamin F. Edrington.​135 Subsequently the inhabitants of the islands exercised all rights and privileges of the citizens of Kentucky, and were subject to the same burdens. George W. Silvertooth,  p31 Representative from Hickman county in the session of 1851‑52, resided on Wolf Island.

Wolf Island appears to have been east of the middle of the channel of the river both in 1763, the date of the treaty with France, and in 1820, the date of the act of Congress authorizing the people of Missouri to form a state government, and the middle of the river was recognized as the boundary. Subsequently, however, the channel of the river, which had previously been on the Missouri side, gradually shifted to the Kentucky side, and Missouri claimed the island. Commissioners from both states took testimony in 1847 to determine where the main channel of the river was when the territory was ceded. One old Missourian testified that the channel in 1824 was on the Kentucky side, while an old Kentucky hunter testified that in the same year he shot deer right on the spot where the channel now is.​136 Nothing resulted from the investigation made by the commissioners.

Later the General Land Office laid claim to the land, and in 1856, in the General Assembly of Kentucky, the Committee on Federal Relations, to which was referred a message from the Governor and accompanying documents from the Commissioner of the General Land Office, relating to the claim of the United States to Wolf Island No. 5 in the Mississippi river, reported that from the most reliable sources of information to which they had had access, the state of Kentucky had always claimed the island to be within her jurisdiction. The Commissioner of the General Land Office assumed that the quantity of water on the east side was much greater than that on the west side of the island, and consequently it was within the limits of the state of Missouri. The Kentucky Committee, however, stated that they had no means of testing this assumption; that if any evidence of the kind had been transmitted to the General Land Office, it was taken ex parte; that they had been informed that many years since the navigators passed on the west or Missouri side of the Island. Consequently, if that be so, the Committee supposed that the title of Kentucky would not be lost by a change of the channel of the river. The Committee further recommended that no sale of land embracing Wolf Island, under the authority of the United States, be made until the question of the boundary be settled, and resolved that the Kentucky Senators and Representatives in Congress be requested to procure passage of an act relinquishing all claim of the United States to Wolf Island. If the passage of such an act could not be obtained, they proposed to apply to the proper officer at Washington to suspend the contemplated sale of Wolf Island in May next until the Kentucky-Missouri boundary was established, to see which had the right of jurisdiction.137

In 1869 Garrett Davis, of Kentucky, and Judge C. A. Newcomb, of Missouri, were appointed commissioners to take more testimony on the dispute. It was  p32 generally supposed that the preponderance of evidence was on the side of Missouri, and General F. A. Dick, attorney for Missouri on the case at Washington, informed the commissioner that no more evidence was necessary, unless the other side wanted it.​138 Kentucky, however, besides arguing prior owner­ship, also showed that originally the island was a part of the eastern bank, as was proved by its vegetation and elevation, and the Supreme Court awarded it to Kentucky on the grounds that the shifting of the river did not carry with it a boundary once established.​139 Thus the boundary was designated to run downed the middle of the Mississippi river, from a point where a line extended from the low water mark on the western bank of the Ohio river intersects the middle of the Mississippi for the first time; also, from a point where the Kentucky-Tennessee line intersects the middle of the Mississippi for the second time, between New Madrid, Missouri, and Island No. 10, down the middle of the Mississippi to a point where the line intersects for the third time, near Compromise, Kentucky.140

So rests the Kentucky boundary. Hemmed in as if by natural barriers on all sides — to the east the Big Sandy and Cumberland mountain, to the north the Ohio, to the west the Mississippi, and to the south the Barrens and Cumberland mountain — it has withstood legislative and judicial action these many years. Only one dispute remains imminently interpretation — that pending Indiana's reaction to the Kentucky General Assembly's legislation of 1942 regarding Green River Island.

Thus it has seemed appropriate to reflect, with historical references and pertinent facts, upon those stories and tales which should ever be fresh in the memory of all Kentuckians for the information they afford in explaining the irregular line which marks the boundary of Kentucky.

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The Author's Notes:

1 History of Kentucky, by Temple Bodley. Published by the S. J. Clarke Publishing Company, Chicago-Louisville, 1928. Vol. 1, p13.

2 Register of the Kentucky State Historical Society, Vol. 6, No. 18, Sept. 1908, p25 — Kentucky-Tennessee Boundary Line, by J. Stoddard Johnston.

Also William Byrd's Histories of the Dividing Line betwixº Virginia and North Carolina, with introduction and notes by William K. Boyd. Pub. by The North Carolina Historical Commission, Raleigh, 1929. Page 1.

3 Byrd's Histories of the Dividing Line, p4.

4 The Statutes at Large, being a Collection of all the Laws of Virginia from the First Session of the Legislature in the year 1619, by William Waller Hening. Vol. 1, p88.

5 Bodley's History of Kentucky, Vol. 1, p21.

6 Byrd's Histories of the Dividing Line, p4.

7 Hening Statutes, Vol. 2, pps. 511‑517.

8 Ohio Archaeological and Historical Publications, Vol. 4; Argument Concerning Boundary Line Between Ohio and Virginia, by Samuel F. Vinton, p99.

9 Bodley's History of Kentucky, Vol. 1, p48.

10 Ibid., p34.

11 The Virginia Magazine of History and Biography, Vol. 13, pps. 23‑27, July, 1905. The Treaty of Fort Stanwix.

12 Hening Statutes, Vol. 5, p79.

13 Filson Club Quarterly, Louisville, Ky., Vol. 1, p111, April, 1927. John Findley, The First Pathfinder of Kentucky, by Lucien Beckner. Also ibid., Vol. 6, p355, October, 1932. Eskippakithiki, The Last Indian Town in Kentucky, by the same author.

14 Hening Statutes, Vol. 8, p395.

15 Ibid., p600.

16 Ibid., Vol. 9, p257.

17 Ibid., Vol. 10, p315.

18 Hening Statutes, Vol. 12, p28; Compact with Virginia, Section 5.

19 Byrd's History of the Dividing Line, p10.

20 The Colonial Records of North Carolina, collected and edited by William L. Saunders. Published by P. M. Hale, Printer to the State, Raleigh, 1886. Vol. 1, p21.

21 Byrd's History of the Dividing Line, p10.

22 Colonial Records of North Carolina, Vol. 1, pps. 102, 103.

23 Byrd's History of the Dividing Line, pps. 10, 11.

24 Ibid., pps. xviii, xix.

25 Ibid., pps. 11 and 324. Also Virginia Magazine of History and Biography, Vol. 4, July 1896, pps. 30‑42. Boundary Line Proceedings 1710: A Journal of the Proceedings of Philip Ludwell and Nath'l Harrison Commissioners appointed for seteling ye Limits betwixt Virg'a & Carolina Begun July ye 18th 1710 by P. L.

26 Hening Statutes, Vol. 4, pps. 46, 47.

27 Byrd's History of the Dividing Line, p. xx.

28 Hening Statutes, Vol. 4, pps. 546, 565.

29 Byrd's History of the Dividing Line, p. xx.

30 Colonial Records of North Carolina, Vol. 2, pps. 222, 223.

31 Byrd's History of the Dividing Line, pps. xx, xxi.

32 The Secret History of the Line, published with The History of the Dividing Line. Missing pages of The Secret History published in The William and Mary Quarterly, Third Series, Vol. 2, No. 1, January 1945, pps. 63‑70, by Maude H. Woodfin.

33 Byrd's History of the Dividing Line, p. xxii.

34 Ibid., p. xxiii.

35 Ibid., pps. xxiii, xxiv.

36 Register of the Kentucky Historical Society, Vol. 6, No. 18, September 1908, p30, 31.

37 Tennessee Historical Magazine, Vol. 1, No. 1, March 1915, p42.

38 Hening Statutes, Vol. 9, pps. 561‑565. Also Colonial Records of North Carolina, Vol. 24, pps, 223, 224.

39 Hening Statutes, Vol. 9, p562.

40 The Journal of Daniel Smith, published in the Tennessee Historical Magazine, Vol. 1, No. 1, March 1915, pps. 40‑65.

41 Colonial Records of North Carolina, Vol. 14, pps. 353‑355.

42 Hening Statutes, Vol. 9, p563.

43 Ibid.

44 Ibid., pps. 561‑564.

45 The American Historical Magazine, Vol. 6, No. 1, January 1901, p27.

46 Ibid., p28. Also The Civil and Political History of the State of Tennessee, by John Haywood, p498.

47 American Historical Magazine, Vol. 6, No. 1, p28, "Northern Boundary of Tennessee", by W. R. Garrett.

48 The Statute Law of Kentucky, by William Littell, Vol. 2, p434.

49 Ibid., Vol. 3, p80.

50 Tennessee Historical Magazine, Vol. 6, No. 1, p33.

51 Ibid., p32. The Journal of John Sevier begins in Vol. 5, No. 3, and ends in Vol. 6, No. 1.

52 Ibid., p33.

53 Ibid., p35.

54 American Historical Magazine, Vol. 6, No. 1, pps. 29, 30.

55 Littells Law of Kentucky, Vol. 4, p388; Vol. 5, pps. 56, 401; Acts 1817‑1818, pps. 437‑438.

56 Haywood's History of Tennessee, pps. 19, 20.

57 Acts of Kentucky, 1818‑1819, p719.

58 American Historical Magazine, Vol. 6, No. 1, p32.

59 Acts of Kentucky, 1819‑1820, p922.

60 Ibid., pps. 924, 925.

61 Ibid., pps. 990, 991.

62 Ibid., pp. 947º

63 Copy of field notes in detail in Library of Kentucky State Historical Society, Frankfort.

64 Hening Statutes, Vol. 9, p563.

65 Acts of Kentucky 1821, pps. 266, 267.

66 Tennessee Historical Magazine, Vol. 6, No. 3, p178.

67 Acts of Kentucky, 1824‑1825, pps. 68‑72.

68 Acts of Kentucky, 1825, p135.

69 Letters regarding procurement of mathematical and astronomical instruments, State Archives of Kentucky, Box 28, Jacket 270, Kentucky State Historical Society.

70 Tennessee Historical Magazine, Vol. 6, No. 3, p181. The Extension of the Northern Line of Tennessee to the West of Cumberland Gap — Matthews Line.

71 Ibid., p183.

72 Acts of Kentucky, 1827‑1828, p93.

73 Kentucky State Archives, Box 38, Jacket 270.

74 Acts of Kentucky, 1830‑1831, pps. 222‑224.

75 A. H. Hill, of Bowling Green, Ky., in Portland, Tenn., Herald.

76 Man Afoot, by William J. Burtscher. Published by Wetzel Pub. Co. Inc., Los Angeles, Calif. 1942, p192 — A Barrel of Whiskey Bent the State Line. For the want of a better name, Mr. Burtscher used the name of Captain Groves in the story.

77 Map of this survey in American History Magazine, Vol. 6, No. 1, p34.

78 Acts of Kentucky, 1830‑1831, pps. 222‑224; also American Historical Magazine, Vol. 6, No. 1, p34.

79 Report of the Commissioners, 1860, pps. 9, 10.

80 State Archives of Kentucky, Letter Book of Governor William Owsley, p121, October 26, 1847.

81 Acts of Kentucky, 1848‑1849, pps. 452‑454.

82 Ibid., 1857‑1858, Vol. 1, pps. 82, 83.

83 Report of the Commissioners appointed to mark the Boundary Line between the States of Kentucky and Tennessee to the Governor. Published at Frankfort, Kentucky; printed at the Yeoman Office, J. B. Major, State Printer, 1860, p3.

84 American Historical Magazine, Vol. 6, No. 1, pps. 36, 37.

85 Acts of Kentucky, 1859‑1860, Vol. 1, pps. 71‑73.

86 American Historical Magazine, Vol. 6, No. 1, p38.

87 Hening Statutes, Vol. 10, p564.

88 Ibid., Vol. 11, pps. 326, 566.

89 Ibid., p571.

90 Ohio Archaeological and Historical Publications, Vol. 5, p50. From Charter to Constitution, by Daniel J. Ryan.

91 Hening Statutes, Vol. 12, pps. 37, 40.

92 The Constitutions of Kentucky and Their History, by B. H. Young. Pub. by Courier Journal Co., Louisville, 1890; Second Part, pps. 11‑15. Also Hening Statutes, Vol. 13, pps 17, 21.

93 Register of the Kentucky State Historical Society, Vol. 35, p215. Letter from Caleb Wallace to James Madison September 30, 1786.

94 The Filson Club History Quarterly, Vol. 17, No. 1, January, 1943, pps. 39‑45 — The Kentucky-Ohio Boundary, by Eugene Oliver Porter.

95 Reported by Wheaton, Vol. 5.

96 Filson Club Quarterly, Vol. 17, No. 1. The Kentucky-Ohio Boundary, by Eugene O. Porter. Also The Indiana Magazine of History, Vol. 39, No. 2, June 1943, pps. 121‑132 — The Boundary and Jurisdictional Problems of the Ohio River, by Eugene O. Porter.

97 Porter in the Indiana Magazine of History, Vol. 39, No. 2.

98 Ohio Archaeological and Historical Publications, Vol. 4, pps. 67‑126, Argument Concerning Boundary Line Between Ohio and Virginia, by Samuel F. Vinton.

99 Porter, in the Indiana Magazine of History, Vol. 39, p128. Also Calendar of Virginia State Papers and Other Manuscripts, arranged by H. W. Flournoy, Richmond, 1893, Vol. 11, p20.

100 State Archives of Kentucky, Box 89, Jacket 672. Also Frankfort Commonwealth (newspaper) March 5, 1850.

101 Indiana Magazine of History, Vol. 39, p128.

102 Calendar of Virginia State Papers, Vol. 11, p20.

103 Indiana Magazine of History, Vol. 39, p129.

104 Ibid., p127.

105 Ibid., p129.

106 Porter, in Filson Club Quarterly, Vol. 17, p44.

107 Porter, in Indiana Magazine of History, Vol. 39.

108 Ibid.

109 Ibid.

110 Ibid.

111 United States Reports, Vol. 136.

112 History of Henderson County, Kentucky, by Edmund L. Starling, p247. Pub. Henderson, Ky., 1887.

113 Virginia Grants, Book 11, p380.

114 United States Reports, Vol. 136.

115 The Navigator (1811) p100.

116 Kentucky Land Warrants, Book D, p34.

117 County Tax Books, Kentucky State Historical Society.

118 Acts of Kentucky, 1878, Vol. 1, p56.

119 History of Kentucky, edited by Judge Charles Kerr, Vol. 3, p1000. Pub. by The American Historical Society, Chicago and New York, 1922.

120 United States Reports, Vol. 163.

121 Acts of Kentucky, 1942, p553.

122 Porter, in Indiana Magazine of History, Vol. 39.

123 Ibid.

124 Ibid.

125 West Virginia History, A Quarterly Magazine, Vol. 2, pps. 113‑119. The West Virginia-Ohio Boundary, by Eugene O. Porter.

126 Porter, in Indiana Magazine of History, Vol. 39.

127 Notes and Annotations to the Kentucky Revised Statutes, 1944, Chapter 1. R. K. Cullen, Reviser; L. C. Turner, Assistant.

128 Calendar of Virginia State Papers, Vol. 8, pps. 330, 390, 403, 444.

129 By the wording of the Act it was difficult for the Commissioners to determine which of the two forks of Big Sandy was indicated — the Levisa Fork, which was the main fork, or the Tug Fork, which was the north eastwardly fork. There is an interesting tradition concerning the manner in which the Tug Fork was selected. It is said that the Commissioners arrived at the forks of the river where Louisa now stands late in the day. Autumnal rains were causing both forks of the river to rise, and during the night they agreed that the boundary should follow the largest fork. Through the night the Tug Fork rose steadily and in the morning it appeared to be the much larger stream, and so was designated as the Kentucky-Virginia boundary. The Commissioners departed before the slow rising tide of the Levisa Fork reached the forks, and plainly showed which was the largest branch of the Big Sandy River. Widespread good humor resulted when it was learned that the smaller of the two was chosen as the boundary (W. R. Jilson, The Big Sandy Valley, p116).

130 Littell's Statute Law of Kentucky, Vol. 2, pps. 276, 277.

131 Notes and Annotations, Kentucky Revised Statutes, 1944, Chapter 1.

132 Lincoln County Entries, Book 1, p241.

133 The Navigator, 1811, p140.

134 Acts of Kentucky, 1836‑1837, 195.

135 Kentucky Land Warrants, Book G-2, 1837.

136 Frankfort Commonwealth (newspaper) August 20, 1869 (from the St. Louis Republic).

137 Acts of Kentucky, 1853‑1856, pps. 139‑143, approved March 10, 1856.

138 Frankfort Commonwealth, August 20, 1869.

139 Kerr's History of Kentucky, Vol. 2, p1000; also Journal of American History, 5 pps. 283‑285.

140 Notes and Annotations, Kentucky Revised Statutes, 1944, Chapter 1.

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Thayer's Notes:

a His journal of his explorations (Oct. 31, 1750 to May 19, 1751) is onsite.

b A considerably more circumstantial — and entertaining — account of the running of the North Carolina/Virginia line in 1728 is given by R. D. W. Connor in History of North Carolina, I.134‑138.

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