The compact of March 28, 1785, between the States of Virginia
and Maryland, having been duly ratified by each state, is binding
upon both as to the subjects embraced within it so far as it is not
inconsistent with the Constitution of the United States.
That compact was not prohibited by Article 6 of the Articles of
Confederation, forbidding any treaty, confederation or alliance
between two or more states without the consent of Congress, and it
continued in force after the adoption of the Constitution except so
far as inconsistent with its provisions, and received the assent of
Congress by the adoption or approval of proceedings taken under
it.
The compact of 1785 contained no reference to fish of any kind
in Pocomoke River or Pocomoke Sound, and no clause in that compact
gave Maryland a right to fish in that river or sound.
Hendricks v. Commonwealth, 75 Va. 934, criticized and
questioned.
Page 153 U. S. 156
The 10th section of the compact of 1755 does not forbid the
State of Virginia from trying and convicting citizens of Maryland
for offenses committed in Virginia against its laws regulating the
oyster fisheries.
This case comes before us on appeal from an order of the Circuit
Court of the United States for the Eastern District of Virginia
dismissing a writ of habeas corpus sued out for the discharge of
the appellant, a citizen of Maryland, from a judgment of
imprisonment until a fine should be paid, imposed upon him by the
County Court of Accomack County in that state upon a conviction of
violating a law of Virginia in taking oysters, contrary to its
prohibitions, from Pocomoke Sound, within her limits. An act of
that commonwealth approved in February, 1892, provides that if any
person, other than a resident of the state, "take or catch oysters
or other shellfish in any of the waters of the state, he shall,
upon conviction thereof, be fined five hundred dollars." Acts of
the Assembly of Virginia, 1891-92, c. 363, amending § 2153 of the
Code of Virginia, paragraph 10, p. 603.
At March term, 1893, of the County Court of Accomack County, the
appellant was indicted by the grand jury of the county for that,
being a nonresident of Virginia, he did unlawfully take and catch
oysters in the waters of the state and within the jurisdiction of
the county, to-wit, on Ledge Rock in Pocomoke Sound, against the
peace and dignity of the commonwealth. At the following April term,
he appeared in court and filed a special plea to its jurisdiction
alleging that at the time the offense charged was committed, he was
a citizen of Maryland, residing in Somerset County, of that state,
and that the act of the Assembly of Virginia under which the
indictment was found had not been adopted or ratified by the
General Assembly of Maryland; that by the compact of 1785 between
those states, which had never been repealed or annulled, but was
still in effect, and operative, the court had no jurisdiction to
try the defendant for the alleged offense, Pocomoke Sound,
mentioned in the indictment, being a part of Pocomoke River
mentioned in the compact. The commonwealth demurred to the plea,
and the court sustained the demurrer, adjudging the plea to be
insufficient. Thereupon
Page 153 U. S. 157
the defendant, under the plea of not guilty, was tried and
convicted, and was sentenced to pay a fine of five hundred dollars,
the sum prescribed by the statute for the offense, and the costs of
the prosecution, and ordered to be committed to the jail of the
county until the fine and costs were paid. Averring that he
intended to apply to the circuit court for a writ of error, he
moved the county court to be admitted to bail pending his appeal,
but the motion was denied on the ground that the law of the state
did not provide for admitting a person to bail after conviction. He
was thereupon taken to the jail by the sheriff of the county, and
detained by him in default of payment of the fine and costs. He
then applied to the Circuit Court of the United States for the
Eastern District of Virginia for a writ of habeas corpus to be
directed to John H. Wise, the Sheriff of the County of Accomack, by
whom, under the judgment, he was imprisoned, requiring the officer
to produce the petitioner before that court, with the authority for
his detention, alleging that his imprisonment was unlawful on
grounds which, as stated by counsel, were similar to those now
urged for a reversal of the judgment before us, namely, that the
compact of 1785 between the States of Virginia and Maryland was
still a subsisting agreement, binding upon and enforceable by each
of those states and the citizens thereof; that by its provisions,
the citizens of Maryland possess and are entitled to enjoy freely a
right of fishery, including the right to take oysters, in common
with the citizens of Virginia, in the Pocomoke River; that that
river, as mentioned in the compact of 1785, embraces what is now
commonly called Pocomoke Sound, which is nothing but the mouth of
Pocomoke River; that the law of Virginia, under which the
petitioner was arrested, indicted, and convicted, was never adopted
by the concurrent legislation of Maryland, and was therefore
inoperative as against the citizens of that state, and that the
conviction thereunder of the petitioner, who was a citizen of
Maryland, was void. And on the further ground that, assuming the
law of Virginia was not inoperative against citizens of Maryland,
still, under the tenth section of the compact of 1785, the
petitioner, as a citizen of that state, could not be lawfully tried
in the
Page 153 U. S. 158
courts of Virginia for the offense charged, but was to be tried
in the courts of Maryland.
The writ was issued, directed to the Sheriff of Accomack County,
and made returnable before the Circuit Court of the United States
for the Eastern District of Virginia at Norfolk, on the 11th of
May, 1893, and was then adjourned for hearing in Richmond on the
1st of June following at which time and place the case was fully
heard. At the succeeding term, the court rendered its decision, to
the effect that the writ of habeas corpus be dismissed, and that
the petitioner be remanded to the custody of the Sheriff of
Accomack County. From this judgment the petitioner appealed to this
Court.
Page 153 U. S. 162
MR. JUSTICE FIELD stated the case and delivered the opinion of
the Court.
The disposition of the appeal will require an examination of
certain provisions of the compact between the States of Maryland
and Virginia of 1785, as upon their interpretation and effect the
controversy which has given rise to the present proceeding, and
similar controversies between citizens of those states, and their
respective rights to fish in the waters of Virginia for oysters,
will be determined. The questions involved are of deep interest to
both states, and they have been presented by distinguished counsel
on their behalf with great ability.
Previous to June, 1784, great inconveniences were experienced by
citizens of both Maryland and Virginia from the want of established
and recognized regulations between those states respecting the
jurisdiction and navigation of the River Potomac, which constituted
a boundary between the two states for over one hundred miles. In
that month and year, the General Assembly of Virginia, reciting
that such inconveniences resulted from want of some concerted
regulations between the states "touching the jurisdiction and
navigation of the River Potomac," passed the following
resolutions:
"
Resolved that George Mason, Edmund Randolph, James
Madison, Jr., and Alexander Henderson, Esquires, be appointed
commissioners, and that they, or any three of them, do meet such
commissioners as may be appointed on the part of Maryland, and in
concert with them frame such liberal and equitable regulations
concerning the said river as may be mutually advantageous to the
two states, and that they make report thereof to the General
Assembly. "
Page 153 U. S. 163
"
Resolved that the executive be requested to notify the
above appointment, with the object of it, to the State of Maryland,
and desire its concurrence in the proposition."
The resolutions were communicated to the executive of Maryland,
and by him laid before the legislature of that state, which
responded to the invitation by a resolution, passed on the 18th of
January, 1785, appointing commissioners on her part to meet those
of Virginia, but with powers somewhat enlarged. The resolution, as
adopted by the Senate of Maryland, declared that Thomas Johnson,
Thomas Stone, Samuel Chase, and Daniel of St. Thomas Jenifer
(selected by the House of Representatives two days before) should
be commissioners for the State of Maryland to meet the
commissioners appointed by the Commonwealth of Virginia,
"for the purpose of settling the
navigation and
jurisdiction over that part of the Bay of Chesapeake which
lies within the limits of Virginia, and over the Rivers Potomac and
Pocomoke,"
and that the commissioners, or any two of them, should have full
power, on behalf of Maryland,
"to adjudge and settle the jurisdiction to be exercised by the
said states, respectively, over the waters and navigation of the
same, the proceedings to be laid before the General Assembly of the
state to be ratified,"
etc.
The commissioners met at Mt. Vernon in the following year, and
on the 28th of March a compact between the two states was mutually
agreed upon by them.
In its first clause, Virginia disclaimed all right to impose any
toll, duty, or charge, prohibition or restraint on any vessel
sailing through the capes of Chesapeake Bay to the State of
Maryland, or from that state through the capes outward bound, and
agreed that the waters of Chesapeake Bay and Pocomoke River within
the limits of Virginia should be forever considered as a common
highway for the use and navigation of any vessels belonging to the
State of Maryland or any of its citizens, or for carrying on any
commerce to or from that state or with any of its citizens, and
that any such vessel inward or outward bound might enter any of the
rivers within the Commonwealth of Virginia as a harbor, or for
safety against an enemy, without the payment of port duties or any
other
Page 153 U. S. 164
charge, and that the waters of Chesapeake Bay and Pocomoke River
should be free for the navigation of vessels from one part of the
State of Maryland to another.
In the second clause, the State of Maryland agreed that any
vessel belonging to Virginia or any of its citizens, or carrying on
commerce to or from that state or with any of its citizens, might
freely enter its rivers as a harbor, or for safety against an
enemy, without the payment of any port duty or other charge.
In the third clause, it was provided that war vessels, the
property of either state, should not be subject to the payment of
any port duty or other charge.
The fourth and fifth clauses related to commerce between
citizens of the two states in their produce, providing that vessels
of a certain size might enter and trade in the ports of either
state with a permit from the naval officer of the district, and
should not be subject to port charges.
The sixth clause declared that the River Potomac should be
considered a common highway for the purpose of navigation and
commerce to the citizens of both states, and all other persons in
amity with the two states, trading to or from Virginia or
Maryland.
The seventh clause provided that
"The citizens of each state, respectively, shall have full
property in the shores of Potowmack River adjoining their lands,
with all emoluments and advantages thereunto belonging, and the
privilege of making and carrying out wharves and other
improvements, so as not to obstruct or injure the navigation of the
river, but the right of fishing in the river shall be common to and
equally enjoyed by the citizens of both states, provided that such
common right be not exercised by the citizens of the one state to
the hindrance or disturbance of the fisheries on the shores of the
other state, and that the citizens of neither state shall have a
right to fish with nets or seines on the shores of the other."
The eighth clause provided that
"All laws and regulations which may be necessary for the
preservation of fish, or for the performance of quarantine in the
River Potowmack, or for preserving and keeping open the channel and
navigation thereof, or of the River Pocomoke, within the limits
of
Page 153 U. S. 165
Virginia, by preventing the throwing out ballast or giving any
other obstruction thereto, shall be made with the mutual consent
and approbation of both states."
The tenth clause provided that
"All piracies, crimes, or offenses committed in that part of
Chesapeake Bay which lies within the limits of Virginia, or that
part of the said bay where the line of division from the sough
point of Potowmack River (now called Smith's Point) to Watkins'
Point, near the mouth of Pocomoke River, may be doubtful and on
that part of Pocomoke River within the limits of Virginia, or where
the line of division between the two states upon the said river is
doubtful, by any persons not citizens of the Commonwealth of
Virginia against the citizens of Maryland, shall be tried in the
court of the State of Maryland which hath legal cognizance of such
offense. And all piracies, crimes, or offenses committed on the
before-mentioned parts of Chesapeake Bay and Pocomoke River by any
persons not citizens of Maryland against any citizen of Virginia
shall be tried in the court of the Commonwealth of Virginia which
hath legal cognizance of such offense. All piracies, crimes, and
offenses committed on the said parts of Chesapeake Bay and Pocomoke
River by persons not citizens of either state shall be tried in the
court of the Commonwealth of Virginia having legal cognizance of
such offenses. And all piracies, crimes, and offenses committed on
the said parts of Chesapeake Bay and Pocomoke River by any citizen
of the Commonwealth of Virginia or of the State of Maryland, either
against the other, shall be tried in the court of that state of
which the offender is a citizen."
There were other provisions in the compact, but those to which
reference is made are all that are important in the disposition of
the present case.
The compact provided that its articles should be laid before the
legislatures of the two states, and, their approbation being
obtained, should be confirmed and ratified by a law of each state,
never to be repealed or altered by either without the consent of
the other. The articles were accordingly laid before the
legislatures of those states, and were approved,
Page 153 U. S. 166
ratified, and confirmed by a law of each substantially identical
in terms. The concluding clause of the act of ratification of the
Legislature of Virginia is as follows:
"And whereas this General Assembly are of opinion that the said
compact is made on just and mutual principles for the true
interests of both governments, and the same having been confirmed
by the General Assembly of the State of Maryland, be it therefore
enacted that the said compact is hereby approved, confirmed, and
ratified by the General Assembly of Virginia, and that every
article, clause, matter, and thing therein contained shall be
obligatory on this state and the citizens thereof, and shall be
forever faithfully and inviolably observed and kept by this
government and all its citizens according to the true intent and
meaning of this compact, and the faith and honor of this state are
hereby solemnly pledged and engaged to the State of Maryland and
the government and citizens thereof that this law shall never be
repealed or altered by the legislature of this commonwealth without
the consent of the State of Maryland."
A similar clause concludes the act of ratification by the State
of Maryland, with a change only in the terms required to indicate
it as the act of Maryland instead of that of Virginia.
The provisions of the compact were well designed to promote the
peace, good neighborhood, and welfare of both states and facilitate
intercourse between their citizens, and it was clearly within their
competency at the time to adopt them, if not restrained by the
articles of the confederation then in existence, and in which they
had joined. They were then sovereign states, possessing, unless
thus restrained, all the rights and powers of independent nations
over the territory within their respective limits, and could
exercise any control and dominion over their navigable waters, and
make any regulations necessary for the protection of their
navigation or to promote the commerce upon them of their respective
states. Those articles expressly provided that each state composing
the confederation retained its sovereignty, freedom, and
independence, and every power, jurisdiction, and right which
was
Page 153 U. S. 167
not by them expressly delegated to the United States in Congress
assembled. The confederation was a league of friendship of the
states with each other, so declared in the articles, and entered
into
"for their common defense, the security of their liberties, and
their mutual and general welfare, binding themselves to assist each
other against all force offered to, or attacks made upon them, or
any of them, on account of religion, sovereignty, trade, or any
other pretence whatever."
But its articles did not form a Constitution or ordinance of
government, with power to enforce its provisions upon each other,
or even a compact having any coherence or binding force other than
that of a league of friendship, which its members only claimed them
to constitute.
The validity of the compact of 1785 has been questioned as in
conflict with the second clause of the sixth article of the
confederation, which provided that no two or more states should
enter into any treaty, confederation, or alliance whatever between
them without the consent of the United States in Congress
assembled, specifying accurately the purposes for which the same
was to be entered into, and how long it should continue, and also
as having been superseded by the Constitution of the United States
subsequently adopted. A few words upon each of these positions. The
articles inhibiting any treaty, confederation, or alliance between
the states without the consent of Congress were intended to prevent
any union of two or more states having a tendency to break up or
weaken the league between the whole. They were not designed to
prevent arrangements between adjoining states to facilitate the
free intercourse of their citizens or remove barriers to their
peace and prosperity, and whatever their effect, such arrangements
could not be the subject of complaint by the states making them
until at least the Congress of the confederation interposed
objections to their adoption or enforcement, which was never
done.
The provisions of the compact, so far as they were inconsistent
with the Constitution of the United States, subsequently adopted,
and to which Maryland and Virginia were parties, were, of course,
suspended and superseded by it.
Page 153 U. S. 168
But as an operative agreement, binding the action of the two
states upon the subjects embraced, where not inconsistent with the
Constitution, its validity has often been recognized by their
authorities. Neither of the governments has ever denied or
repudiated its obligation, but, as in the present case and in all
controversies between the states, it has been treated as of
obligatory force.
In determining the effect of the prohibition of the clause in
the sixth article of the confederation upon the validity of the
compact, the observations of this Court in the recent decision of
the controversy between Virginia and Tennessee upon the meaning of
the clause of the Constitution of the United States which is
similar, in one particular, to that in the Articles of
Confederation and broader in another, may be properly considered.
The article of the confederation inhibits "any treaty,
confederation, or alliance" between two or more states without the
consent, of Congress. The Constitution of the United States
prohibits, without such consent, any agreement or compact of one
state with another. In the case mentioned, there was an agreement
between the States of Virginia and Tennessee to appoint
commissioners to run and mark the boundary between them, made
without the consent of Congress, and the question considered was
whether the agreement was within the prohibition of the clause
cited from the Constitution of the United States, and we said:
"The terms 'agreement' or 'compact,' taken by themselves, are
sufficiently comprehensive to embrace all forms of stipulation,
written or verbal, and relating to all kinds of subjects; to those
to which the United States can have no possible objection or have
any interest in interfering with, as well as to those which may
tend to increase and build up the political influence of the
contracting states, so as to encroach upon or impair the supremacy
of the United States or interfere with their rightful management of
particular subjects placed under their entire control."
"There are many matters upon which different states may agree
that can in no respect concern the United States. If, for instance,
Virginia should come into possession and ownership of a small
parcel of land in New York which the latter
Page 153 U. S. 169
state might desire to acquire as a site for a public building,
it would hardly be deemed essential for the latter state to obtain
the consent of Congress before it could make a valid agreement with
Virginia for the purchase of the land. If Massachusetts, in
forwarding its exhibits to the World's Fair at Chicago, should
desire to transport them a part of the distance over the Erie
Canal, it would hardly be deemed essential for that state to obtain
the consent of Congress before it could contract with New York for
the transportation of the exhibits through that state in that way.
If the bordering line of two states should cross some malarious and
disease-producing district, there could be no possible reason on
any conceivable public grounds to obtain the consent of Congress
for the bordering states to agree to unite in draining the
district, and thus removing the cause of disease. So, in case of
the threatened invasion of cholera, plague, or other causes of
sickness and death, it would be the height of absurdity to hold
that the threatened states could not unite in providing means to
prevent and repel the invasion of the pestilence without obtaining
the consent of Congress, which might not be at the time in session.
If, then, the terms 'compact' or 'agreement' in the Constitution do
not apply to every possible compact or agreement between one state
and another for the validity of which the consent of Congress must
be obtained, to what compacts or agreements does the Constitution
apply?"
"We can only reply by looking at the object of the
constitutional provision, and construing the terms 'agreement' and
'compact' by reference to it. It is a familiar rule in the
construction of terms to apply to them the meaning naturally
attaching to them from their context.
Noscitur a sociis is
a rule of construction applicable to all written instruments. Where
any particular word is obscure or of doubtful meaning taken by
itself, its obscurity or doubt may be removed by reference to
associated words, and the meaning of a term may be enlarged or
restrained by reference to the object of the whole clause in which
it is used."
"Looking at the clause in which the terms 'compact' or
'agreement' appear, it is evident that the prohibition is
Page 153 U. S. 170
directed to the formation of any combination tending to the
increase of political power in the states, which may encroach upon
or interfere with the just supremacy of the United States. Story,
in his Commentaries (§ 1403), referring to a previous part of the
same section of the Constitution in which the clause in question
appears, observes that its language"
"may be more plausibly interpreted from the terms used, 'treaty,
alliance, or confederation,' and upon the ground that the sense of
each is best known by its association (
noscitur a sociis)
to apply to treaties of a political character, such as treaties of
alliance for purpose of peace and war and treaties of
confederation, in which the parties are leagued for mutual
government, political cooperation, and the exercise of political
sovereignty, and treaties of cession of sovereignty, or conferring
internal political jurisdiction or external political dependence,
or general commercial privileged,"
"and that the"
"latter clause, 'compacts and agreements,' might then very
properly apply to such as regarded what might be deemed mere
private rights of sovereignty, such as questions of boundary,
interests in land situate in the territory of each other, and other
internal regulations for the mutual comfort and convenience of
states bordering on each other."
"And he adds:"
"In such cases, the consent of Congress may be properly required
in order to check any infringement of the rights of the national
government, and at the same time, a total prohibition to enter into
any compact or agreement might be attended with permanent
inconvenience or public mischief."
Virginia v. Tennessee, 148 U.
S. 503,
148 U. S.
517-519.
So, in the present case, looking at the object evidently
intended by the prohibition of the Articles of Confederation, we
are clear they were not directed against agreements of the
character expressed by the compact under consideration. Its
execution could in no respect encroach upon or weaken the general
authority of Congress under those articles. Various compacts were
entered into between Pennsylvania and New Jersey and between
Pennsylvania and Virginia during the confederation in reference to
boundaries between them, and to rights of fishery in their waters,
and to titles to land in
Page 153 U. S. 171
their respective states, without the consent of Congress, which
indicated that such consent was not deemed essential to their
validity. Virginia and Maryland were sovereign states, with no
common superior and no tribunal to determine for them the true
construction and meaning of its provisions in case of a conflict of
opinion upon the subject. Each state was left to decide for itself
as to their true construction and meaning, and to its own sense of
the obligations of the compact for their enforcement. If,
therefore, the Congress of the United States, which, as said above,
never complained of the compact of 1785, had interposed objections
to its adoption or enforcement as being within the meaning of the
terms "treaty" or "confederation," or as establishing an alliance
within the prohibition of the articles mentioned, yet it would not
lie in either of the states that were parties to the contract to
allege its invalidity on the subject. As said by Mr. Steele in his
very able and elaborate opinion upon the construction of provisions
of the compact given to the Governor of Maryland, and which is
referred to in the record, they cannot complain that there was in
its adoption any breach of good faith towards themselves, and we
may add, or any rupture by them of the league of friendship
declared to be the object of the articles to establish.
In our judgment, the compact of 1785 was not prohibited by the
Articles of Confederation. It was not a treaty, confederation, or
alliance within the meaning of those terms as there used, and it
remained as a subsisting operative contract between them, in full
force, when the confederation went out of existence upon the
adoption of the present Constitution of the United States, and it
was not affected or set aside by the prohibitory clause of that
instrument. Its prohibition extends only to future agreements or
compacts, not against those already in existence, except so far as
their stipulations might affect subjects placed under the control
of Congress, such as commerce and the navigation of public waters,
which is included under the power to regulate commerce.
As stated by counsel, stipulations as to riparian rights of
fishery, and as to jurisdiction in and over waters lying
between
Page 153 U. S. 172
the two states, remained as they previously existed, neither
suspended or impaired.
We are therefore of opinion that the compact continued in full
force after the adoption of the Constitution, except so far as
inconsistent with its provisions, and such we understand has been
the clear declaration of the two states whenever they have been
called upon to express their opinion upon the subject, and such is
the concession of counsel. In the acts of both states, passed in
1874, designating arbitrators to ascertain and fix the boundary
between them, the validity of the compact was affirmed in the
declaration that
"neither of the said states, nor the citizens thereof, shall, by
the decision of the said arbitrators be deprived of any of the
rights and privileges enumerated and set forth in the compact
between them, entered into in the year 1785, but that the same
shall remain to and be enjoyed by the said states and the citizens
thereof forever."
Act of March 28, 1874, c. 135, Laws of Virginia, 1874, 151; Act
of April 11, 1874, c. 273, Laws of Maryland, 1874, 365.
As justly observed, there could not be a more solemn and
conclusive recognition and assertion -- so far as the two states
were concerned -- of the continued existence and obligatory force
of the compact than is contained in this language of both in
appointing the arbitrators and designating the conditions upon
which their award should be accepted. The States of Maryland and
Virginia not only consented to the appointment of the arbitrators
upon the conditions mentioned, but their award was approved by both
states and by an act of Congress. That approval covered all the
conditions and stipulations upon which the award was made, and
renders the compact of 1785, the rights and privileges of which
were to remain and be enjoyed by the states and the citizens
thereof forever, thus consented to by Congress, free from
constitutional objections, if any that were valid had previously
existed. The Act of Congress of March 3, 1879, c. 196, 20 Stat.
481, 483, recited that arbitrators, duly appointed on the part of
the States of Virginia and Maryland for the purpose of ascertaining
and fixing the boundary between them, did proceed to examine into
and ascertain the true line of said boundary, and
Page 153 U. S. 173
had made their award, which was set forth, and that that award
had been ratified and confirmed by the legislatures of those
states, respectively, and then enacted that the consent of Congress
was given to the agreement or award, and to each and every part and
article thereof. That consent, taken in connection with the
conditions upon which the award was authorized, operated as an
approval of the original compact, and of its continuance in force
under the sanction of Congress. The consent of Congress to any
agreement or compact between two or more states is sufficiently
indicated, when not necessary to be made in advance, by the
adoption or approval of proceedings taken under it.
Green v.
Biddle, 8 Wheat. 85,
21 U. S. 87.
We proceed, therefore, to consider the clauses of the compact
upon the construction of which the present controversy must be
determined.
The appellant, a citizen of Maryland, is under a judgment of
imprisonment for not paying a fine and costs of prosecution imposed
for unlawfully catching and taking oysters in the waters of
Virginia in violation of its laws. That state is the owner of the
navigable waters within its limits and the lands under them,
holding them in trust for the public, and authorized to pass all
necessary laws for the protection of the fish therein, whether
floating or shell, and the punishment of any citizens of its own or
other states for taking them against its prohibitions.
The oyster grounds of the state are of large extent, very
productive, and of great value. Pocomoke Sound is represented to
have an area of 92 square miles, of which about 52 square miles
consist of natural oyster rocks and beds particularly adapted for
the growth of the oyster. Many millions of oysters are the product
from these rocks and beds each year. The business of taking them
from the water and carrying them to the different markets of the
country constitutes an extensive and profitable industry, giving
occupation and support to several thousand people of the state and
to their families, and furnishing an article of food extremely
palatable and delicious to many thousands in other states. Great
care
Page 153 U. S. 174
is taken in their culture and protection, and a vigorous police
of the state is maintained to prevent their unlawful removal, or
any encroachment with respect to them upon the rights of the state.
The preservation of the oysters and of these rocks and beds, so
well and peculiarly fitted for their increase, has been for many
years a matter of special interest on the part of the state, and
the act under which the appellant was indicted and convicted
constitutes a part of its legislation for that purpose.
The contention of Maryland, as made by her counsel on behalf of
the appellant, is that, by the true construction of the seventh and
eighth sections of the compact of 1785, her citizens are lawfully
entitled to possess and enjoy and exercise a common right of
fishery, including the right to catch and take oysters in the
Potomac River and in the Pocomoke River, including what is also
called "Pocomoke Sound," which is alleged to be part of that river
and to constitute its mouth, and further that if her citizens do
not possess such right of fishery in the Pocomoke River and
Pocomoke Sound, they cannot be subjected to trial in the courts of
Virginia for the offenses charged to have been committed in those
waters against the citizens of that state. We will briefly consider
each of these positions.
The seventh section of the compact refers, so far as fishing is
concerned, only to the Potomac River, and provides "that the right
of fishery therein shall be common to and equally enjoyed by the
citizens of both states," with the proviso that such common right
shall not be exercised by the citizens of one state to the
hindrance of the fisheries on the shores of the other state, and
that the citizens of neither state shall have a right to fish with
nets or seines on the shores of the other. It is conceded that the
right of fishing, when not qualified, extends to the taking of both
floating fish and shellfish. This concession, however, is of no
importance as to fishing in the Potomac, as the offense charged in
the case before us is limited to taking oysters in Pocomoke Sound,
to which no reference is made in the section in question.
The eighth section is equally free from any reference to the
Page 153 U. S. 175
offense complained of. Its language is that
"All laws and regulations which may be necessary for the
preservation of fish, or for the performance of quarantine in the
River Potowmack, or for preserving and keeping open the channel and
navigation thereof, or of the River Pocomoke, within the limits of
Virginia, by preventing the throwing out of ballast, or giving any
other obstruction thereto, shall be made with the mutual consent
and approbation of both states."
There is no ambiguity or obscurity in this language. It simply
provides that necessary laws and regulations for the preservation
of fish in the River Potomac, and for the performance of quarantine
with respect to the river, and for preserving and keeping open the
channel and navigation of that river and of the River Pocomoke
within the limits of Virginia by preventing the throwing out of
ballast, or giving any other obstruction thereto shall be enacted
by the mutual consent and approbation of the two states. There is
nothing in these provisions having any reference to fish of any
kind in the Pocomoke River or in the Pocomoke Sound, whether that
sound be deemed a part of that river of otherwise. As observed by
counsel, no clause of the compact having given any right to
Maryland to fish in Pocomoke River, there was no reason why
Maryland should be allowed to interfere in any way by legislation
or regulation for the preservation of its fish.
The case of
Hendricks v. Commonwealth, 75 Va. 939,
decided by the Court of Appeals of that state, is cited as
authorizing the contention that a right to fish in the Pocomoke
River is given by the compact equally with the right to fish in the
Potomac. The language of the court in that case gives color to that
view, but it is plain that the Court of Appeals fell into a mistake
in its judgment from a misquotation of section 8 of the compact,
upon which it relied. The language of the court is:
"By article eight, all laws and regulations which may be
necessary for the preservation of fish in the River Potomac or the
River Pocomoke within the limits of Virginia shall be made with the
mutual consent and approbation of both states."
It then adds as its conclusion:
"The effect of this article is to give the State of Virginia
concurrent
Page 153 U. S. 176
jurisdiction with the State of Maryland over the Potomac from
shore to shore, and over that part of Pocomoke River which is
within the limits of Virginia, to enact such laws, with the consent
and approval of Maryland, as may be deemed necessary and proper for
the preservation of fish in said waters."
Turning to the eighth article of the compact, we find that it
does not contain any language having reference to the preservation
of fish in the Pocomoke River, and by this misquotation, the error
in the conclusion of the court followed. There being an error of
citation, a decision founded upon the supposed correctness of the
citation cannot be accepted as authoritative any more than a
decision founded upon a mistranslation of a passage in an author
will be followed when the mistake or error is discovered. There was
no question before the Court of Appeals in the case cited relating
to fishing in the Pocomoke River. We shall hereafter refer to that
decision on another point, in which it is not open to any
criticism.
The question whether Pocomoke Sound is to be considered as part
of Pocomoke River is immaterial in view of the conclusion we have
stated, that the compact gives no right to the citizens of Maryland
to fish in the waters of that river, and only refers to the river
in providing that legislation or regulations preserving and keeping
open its channel free from obstructions shall be enacted by the
mutual consent and approval of the two states. But owing to the
earnestness with which the identity of the river and sound has been
pressed, it is proper to state that after careful examination of
the documentary evidence offered on the subject, we are clear that
the river and sound were, at the time the compact was made and for
many years preceding it, considered and designated as separate and
distinct bodies of water, and after that date down to what is
termed the "Black-Jenkins Award of 1877," they never lost their
separate and distinct character and designation. And we agree with
the statement of the court below in considering this subject, that
there is no map of these waters, and no joint official document,
existing in relation to them, which has confounded the river with
the sound or claimed that the sound is the river or any part of the
River
Page 153 U. S. 177
Pocomoke. The objection to the jurisdiction of the courts of
Virginia to try the appellant for the offense charged does not find
any support in the tenth section of the compact of 1785. That
section only provides for the trial of citizens of Maryland in that
state, where offenses are committed by them in Virginia upon
citizens of that state. It was so held by the Court of Appeals of
Virginia in
Hendricks v. Commonwealth, above cited. The
offense charged against the appellant, and for which he was tried
and convicted, was one against the State of Virginia, and not one
against and of her individual citizens. It was for catching and
taking oysters in her waters, which were the property of the state,
against her prohibitions, he being a citizen of Maryland.
The objections of the appellant to the jurisdiction of the
County Court of Accomack in rendering judgment against him being
untenable, the judgment of the Circuit Court of the United States
for the Eastern District of Virginia, in refusing to discharge him
from imprisonment for failure to pay the fine imposed upon him for
a violation of the laws of Virginia and the costs of his
prosecution, must be
Affirmed.