agreements between members of the confederation. Thus, Virginia and North Carolina, in 1779, and Pennsylvania and Virginia, in 1784, made agreements with reference to their common boundaries. In 1783, Pennsylvania and New Jersey came to an agreement as to the jurisdiction of the two states over the river Delaware and its islands. New York and Massachusetts, in 1786 made an agreement for the surrender by the latter of its land claims in Western New York. In 1785, Maryland and Virginia entered into a compact respecting navigation and jurisdiction in Chesapeake bay, Pocomoke sound and the Potomac river, and also as to port regulations and fisheries in these waters. It was expressly held by the Supreme Court, in Wharton v. Wise, that the last mentioned agreement was not a "treaty, alliance or confederation" within the meaning of Article VI, paragraph 2, of the Articles of Confederation. It should also be noted that the Articles of Confederation provided that "differences" between two or more states concerning boundaries, jurisdiction, or any other cause whatever," might, on petition to Congress by one of the parties, be referred for settlement to a commission to be established under the direction of Congress, and that the decision thereof should be final." Reference to Congress was, therefore, optional, and the provision manifestly contemplated an attempted settlement by the states involved before appeal was made to Congress.

The practice in this matter under the confederation evidently lead the framers of the Constitution to prohibit agreements or compacts, except with the consent of Congress. Since the adoption of the Constitution, numerous agreements or compacts, relating principally to boundaries, have been made between states, but all, so far as known, with Congressional assent.

Judge Story, writing in 1833, considered that the precise distinction between the words, "treaty," "agreement," and "compact" was not clear. He seemed inclined, however, to assign to the first term engagements of a political character. The other two, he thought, might apply to "what might be deemed mere private rights of sovereignty, such as questions of boundary, in5. Gannett, Boundaries of the United States, 97, 86, 83, 84, 69. Poole v. Fleeger, 11 Pet. 185.

6. Wharton v. Wise, 153 U. S, 163.

7. Articles of Confederation, Art. IX, Sec. 2.

8. Madison in his "Notes on Proceeding of the Federal Convention," re. ferred to the above agreements between Virginia and Maryland and Pennsylvania and New Jersey as " compacts without previous application or subsequent apology." Doc. Hist. of the Const. III, 155.

terests in land, situated in the territory of each other, and other internal regulations for the mutual comfort and convenience of states, bordering on each other."

The meaning of the words "treaty," "agreement" and "compact," as applied in international relations was discussed by Chief Justice Taney in the case of Holmes v. Jennison, in the year 1840. 10 The question here involved was the right of a state (Vermont) to surrender a fugitive from justice, on the request of a foreign government (lower Canada), and it was there held that the surrender might not lawfully be made, because it necessarily involved an agreement between a state and a foreign power to which the assent of Congress had not been given. In considering the meaning of the words "treaty," "agreement" and "compact" as used in Article I, Section 10 of the Constitution, Chief Justice Taney observed that "the words 'agreement' and 'compact' cannot be construed as synonymous with one another, and still less can either of them be held to mean the same thing with the word 'treaty,' in the preceding clause." "Undoubtedly in the sense in which the word is generally used, there is no treaty (here) between Vermont and Canada. For when we speak of a 'treaty we mean an instrument written and executed with the formalities customary among nations; and as no clause in the Constitution ought to be interpreted differently from the usual and fair import of the words used, if the decision of this case depended upon the word above mentioned, we should not be prepared to say that there was any express prohibition of the power exercised by the state of Vermont." He then proceeds to quote the definition of these words as given by Vattal who says: "A treaty, in Latin foedus, is a compact made with a view to the public welfare, by the superior power, either for perpetuity or for a considerable time."

"The compacts which have temporary matters for their object, are called agreements, conventions and pactions. They are accomplished by one single act and not by repeated acts. These compacts are perfected in their execution once for all; treaties receive a successive execution whose duration equals that of the treaty, 11

It is true that Vattel's definition of agreements, quoted by Judge Taney, speaks of them as "accomplished by one single act

9. Story on the Constitution §§ 1402, 1403.

10. Holmes v. Jennison, 14 Pet. 540.

11. Ibid 571, 572, 573, and Vattel, Law of Nations, II §§ 152, 153.

and not by a series of acts perfected in their execution once for all." The reference here is said to be to so-called "transitory conventions," "transitory," because by their nature they are at once executed and leave nothing more to be done. As Vattel says elsewhere, 12 of agreements of this kind, "if they are valid, they have in their own nature a perpetual and irrevocable effect." Such, according to Wheaton, are treaties of cession, boundary or exchange of territory, which are not abrogated like other treaties on the breaking out of war between the contracting parties, 13 Nevertheless, it may be doubted whether the framers of the Constitution used the words agreement and compact, either in the restricted or extended sense. They had in mind the various compacts which the states, under the confederation, had made with each other, and they intended apparently to provide that if the states made agreements in the future, it must be with the assent of Congress. The language of the constitutional provision is that "no state shall, withont the consent of Congress, enter into any agreement or compact with another state or with a foreign power." (I 10, 3). There is no distinction here between agreements, domestic or foreign, and the rule of construction, noscitur a sociis, would raise the presumption of a similar meaning and limitation for both. 14 The case of Holmes v. Jennison is, however, authority for the proposition that extradition by a state at the request of a foreign government, necessarily involves an agreement which is one of those forbidden to the states to enter into except with the consent of Congress. It also declares obiter, that such an agreement is not a treaty. The inference, therefore, is that extradition and similar agreements, made by the states, would be lawful, if authorized by Congress.

It is believed that the only instance of agreements between a state of the Union and a foreign power (and that too, without the consent of Congress), were those growing out of the interests

12. Vattel, Law of Nations II, ch. 12, § 192.

13. Wheaton's International Law, pt. III, ch. 2, §§9, 10.

14. Mr. Justice Field in Virginia v. Tennessee, referring to agreements and compacts between the states said, that the prohibition "is directed to the formation of any combination tending to increase the political power of the States, which may encroach upon, or interfere with, the just supremacy of the United States." In delivering the opinion of the Court in Stearns v. Minne sota, Mr. Justice Brewer pointed out that a distinction exists between agreements between the States which relate merely to property rights, and agreements which have a political object, the former being permissible, the latter not. 148 U. S. at p. 519. 179 U. S. at p. 244.

of Maine and Massachusetts in the northeastern boundary dispute with Great Britain, and relating more particularly to the so-called Aroostook War in 1839. The dispute had then reached an acute stage and armed forces from Maine and New Brunswick had been marched into the disputed territory. A collision was averted through the mediation of General Scott, and an agreement was reached by the governors of Maine and New Brunswick, March 21-23, 1839, by which each side was to retain possession of territory occupied by each, pending final adjustment by the American and British governments, but without prejudice to their respective rights and claims; the Maine forces to consist of a civic posse kept there to prevent timber depredations. This arrangement, in a sense, carried into effect an earlier agreement signed by Mr. Forsyth, Secretary of State, and Mr. Fox, the British Minister, on February 27, of the same year, in which an understanding was reached as to the line of conduct to be recommended to the governors of Maine and New Brunswick in dealing with the difficulty. But as the terms of the two arrangements differed, it cannot be said that the second was a fulfillment of the first. 15

The interests of Maine and Massachusetts were in part provided for in Article V of the Webster-Ashburton treaty, wherein it was stipulated that,

"Whereas, in the course of the controversy respecting the disputed territory on the northeastern boundary, some moneys have been received by the authorities of Her Britanic Majesty's Province of New Brunswick, with the intention of preventing depredations on the forests of the said territory, which moneys were to be carried to a fund called the 'disputed Territory Fund,' the proceeds whereof it was agreed should be hereafter paid over to the parties interested in the proportions to be determined by a final settlement of boundaries: It is hereby agreed that a correct account of all receipts and payments on the said fund shall be delivered to the government of the United States within six months after the ratification of this treaty, and the proportion of the amount due thereon to the states of Maine and Massachusetts, and any bonds or securities appertaining thereto shall be paid and delivered over to the government of the United States, and the government of the United States agrees to receive for the use of, and pay over to the states of Maine and Massachusetts their respective portions of said fund."

We learn from notes exchanged between Mr. Pakenham, British minister in Washington, and Mr. Buchanan, Secretary of State, on March 17 and April 21, 1847, respectively, that agents of Maine and Massachusetts properly accredited to the governor of New Brunswick by letters from Mr. Pakenham and Mr. Buchanan proceeded to New Brunswick and there effected a settlement 15. Memoirs of General Scott, II; 347-351, 338-341.

of the disputed territory fund account with commissioners appointed by the provincial government. The result was a "deed of agreement and settlement concluded between the agents and commissioners on both sides, and the money found to be due to the states of Maine and Massachusetts, and the bonds and securities appertaining thereto were paid over and delivered to the agents of those states."

The agents of the two states had the duty, according to the terms of the article above quoted, to agree upon "the proceeds to be paid the parties interested in the proportions" determined by the final settlement of the boundary line. This must have been principally a mathematical calculation. The resulting agreements would certainly be among those described by Vattel as "compacts perfected in their execution once for all" and accomplished by a single act." But they were evidently not thought by Mr. Buchanan and President Polk to require the constitutional assent of Congress.

It can hardly be said that the assent of the Senate to the Webster-Ashburton treaty, by recognizing the claims of Maine and Massachusetts, gave legal validity to the proceeding. The provisions of Article V of the treaty contemplated that the claims should be adjusted by the government of the United States acting in behalf of the two states. Practical considerations, however, made it preferable that the real parties in interest should settle the account. The object of the above correspondence between Buchanan and Pakenham was, therefore, to establish the fact that the British government was discharged of all obligations in the matter, and Buchanan replied that the United States government so regarded it." 16

The opinion has been expressed that it is beyond the competence of a state of the Union, and a bordering province of Canada to enter into an agreement; for example, to regulate fisheries in their contiguous waters.17 With all deference to the

16. Ex. Doc. 63, 37 Cong. 2 sess. vol. 5.

It may be thought that this agreement is referable to the war power of the states, which is exercisible when they are "actually invaded" (Const. I, 10, 2) Webster in his speech in the Senate in defense of the Treaty of Washington said that "Something like a border war had broken out. There was Fort Fairfield, Fort Kent and I know not what other fortresses, all memorable in history." Works, vol. 5, p. 93.

17. Butler's Treaty Making Power I, § 123.

Although the British North American Act of 1867 vested in the Dominion Parliament exclusive legislative powers in respect to "sea coast and inland fisheries" (Sec. 91), it appears to be modified as to the Province of Ontario by subsequent act of the Imperial Parliament (48 V. ct. 9, S. 2) which gave t the Legislature of Ontario rights of legislation in respect to fisheries in tha province. Revised Statutes of Ontario (1887), I, 337.