Opinion of the Court.

known in 1819, when the treaty was made, and as 'laid down in Melish's map of the United States, published at Philadelphia, improved to the first of January, 1818.'"

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

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

Opinion of the Court.

is reached one of the forks coming from the north and northwest, and the other from the west-it would seem to be our duty to hold that the river coming from a westward direction was the one whose course the treaty directed to be followed. Those who insist that the course should be north and northwestwardly for any material distance from the main river to the 100th meridian, are under an obligation to sustain that position by such evidence as would justify the court in departing from the plain direction of the treaty to follow the Red River" westward" to the named meridian. But that has not been done.

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

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

Opinion of the Court.

I have this morning, for the first time, seen a copy of that portion of Melish's map of the United States, embracing the part of the Red River country which the commission has under consideration at this time, which is authenticated by the signature of the Secretary of State of the United States. Upon this map only one large fork of Red River is delineated, with one more northerly small affluent, which is not named, but may have been intended for Washita River or Cache Creek." House Ex. Doc. No. 21, p. 59.

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

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

But

Opinion of the Court.

with their families if it could be avoided, for the reason that the nauseous water frequently proved fatal to their children. Hence, it is not surprising that but little, if anything, should have been known of this repulsive region before my exploration in 1852. And this probably accounts for the entire absence of most of its southern branches upon Melish's map. It is very certain that the Prairie Dog Town River' was never delineated by any Spanish, French or English name, as were most of the other streams in that country, and it was only known to the Indians, and possibly to some Mexican traders, as 'Kecheahquehono,' a Comanche appellation, the signification of which the Delawares informed me was 'Prairie Dog Town River.' As before stated, owing to the absence of good water, the sandy character of the soil along the river, and the formidable obstruction presented by the elevated and staked plain, and the extensive belt of gypsum crossing this route, the Mexicans would never have attempted to traverse it with their carts in their trading expeditions from Santa Fé to Natchitoches, especially when there was so good a route a little further north, possessing all the requirements for prairie travelling. The Rio Roxo upon Melish's map is almost entirely south and west of the Wichita Mountains, but in close proximity to them which is in accord with my determination of the position of the North Fork, while there are no mountains upon the Prairie Dog Town branch. The head of the Rio Roxo upon Melish's map is put down as in about latitude 37°, while upon my map the true latitude is 35°, while the Prairie Dog Town River rises in about thirty-four and one-half degrees; so that, if his Rio Roxo was intended to represent the Prairie Dog Town River,' it would be two and one-half degrees of latitude too far north." House Ex. Doc. No. 21, pp. 59, 60.

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

Opinion of the Court.

frankly admitted, passed from his memory, he expressed the opinion that the river that he had called the North Fork of Red River was what was designated on Melish's map of 1818 as Rio Roxo. However persuasive his reasons, for that conclusion might be regarded, if the facts then stated by him were alone taken into consideration, they do not satisfy us that he was in error when, the facts being fresh in his mind, he expressed the opinion, from personal examination on the ground, that Prairie Dog Town Fork was the main Red River. One of the reasons assigned, in support of his last view of this question, is that Prairie Dog Town River was never delineated upon any map of this country or of Europe prior to his exploration, and that it was only known to the Indians, and possibly to some Mexican traders, as the Kecheahquehono, which means Prairie Dog Town River. Now it is quite true that no map, prior to 1852, marked any river as Prairie Dog Town River, or as the Kecheahquehono. But it is shown, beyond all question, that on all the maps above referred to which appeared after 1819 and down to the time when General Marcy testified before the Boundary Commission, a river was marked whose course (going from east to west) is substantially westward from the point where the line from the Sabine River meets the 32d degree of latitude to the 100th meridian, and that the line, thus delineated, extending to and westwardly beyond the true 100th meridian, is the southern boundary of the Indian Territory, as that boundary is claimed by the United States. Between the mouth of the North Fork and the initial monument established by the government in 1856, there is a river whose course is substantially east and west. That river is marked on Long's map of 1822 and the Melish map of 1823, west of the 100th meridian, as "Rio Roxo or Red River;" on Finley's map of 1826 as "R. Roxo or Red R.; " on the YoungMitchell map of 1835, and Maillard's map of 1841 as "Rio Roxo or Red River of Louisiana ;" and on Mitchell's map of 1851 as "Red River." On all the other maps the same river is plainly delineated. That the name of Prairie Dog Town Fork does not appear on maps published prior to 1852, or that that name was not known to civilized people until after the explora