Peninsula enterprise. [volume] (Accomac, Va.) 1881-1965, 1894-04-28

llstIlit AOuIl bOAslN III ~ NAHtANN
Field announcing the opinion, which
sustained the contention of Virginia
on every material point Of issue.
HISTORY OF THE CASE.
The case at bar came up OH appeal
from the judgment of the Circuit
Court for the Eastern district of Nir-
ginia refusing to discharge, Robert
l.. Wharton on & writ of habeas cor
pus from the custody of John II.
Wise, sheriff of Accomac county, Va.
Wharton was Il resident of Maryland
and was arrested and convicted of
violatinga law of Virginia, which, pro-
hibitS the taking of oysters or other
shell fish from the waters of the
State by any person other than a
resident of the State, III taking oys-
ters from Pocomole sound. Whar-
ton, ON trial of the indictmentagai
him, pleaded want of jurisdiction by
the Virginia courts to try him, be-
cause the act of the Legislature of
Virginia. under which the inlict-
ment was fonnd, had not been adopt
ed or ratified by the Legislature of
Maryland, and because by the COM
pact Of 1875 between those States,
which was still in force, the waters
of Pocomoile sound were Il part of
the Pocomo1e river, which was men
toned in that compact. The court
held the plea to be insufficient and
fined Wharton $500. The Judgment
of the United States Circuit Court
refused to interfere and dismissed
the petition for the writ of habeaS
rpus. From that judgment the p;
titioner appealed 10 the United
States Supreme Court.
SUBSTANCE OF THE OPINION.
In disposing of the appeal Justice
Field reviewed at length the compact
made between the States of Mary
land and Virginia in 11S5, upon the
Interpretation OF which the determi
nation of the controversy depended.
That compact. the Justice said, grew
out of the Inconvenience experienced
bv the citizens of both States from
tie want of established and recog
nized regulations between them re-
sDecting the jurisdiction and navi-
cation of the Potomac, which form
ed a boundary between them for 4
hundred miles CT more. 1t was
drafted by commissioners appointed
by both States, who met at Mount
Vernon, and was ratified and APP
proved by the Legislature of each.
It's validity has often been question
ed. said the Justice. so far as its pro-
visions were inconsistent with those
of the Constitution of the United
States, and afterwards adopted, they
we're superseded by it. But as an
operative agreement binding the ac-
ton of.the two States upon the sub
.iects embraced, when not inconsis-
tent with the Constitution, its valid
ity has often been recognized by
their authorities. AS stared by
counsel, stipulatiops as to riparian
rights of fishery. and as to jurisdic-
ton in and over waters lying between
the two States remained as they
previously existed.
The contention made by counsel
for Maryland, on behalf of Wharton,
was that by q true construction of
sections Z and OF the compact of
1875: her citizens were lawfully en-
titled to exercise common right of
fishery. including the right to catch
and take oysters in the Potomac
river. including Pocomoke sound,
which was alleged to be part Of that
river: but that if they did not possess
that right they could not be subjec
ted to trial in the courts of Virginia
for the offences charged to have been
committed in those waters against
rho citi1pnS of that State
MARYLAND HAS no RIGHT.
After quoting the provisions of the
section designated, Justice Field
concluded that no clause III the com
pact gave any right to Maryland to
fish in the PocomOle river, and that
Pocomoke river and Pocomoke sound
until the 'Black Jenkins award, of
1871 never lost their square and
distinct character and designation.
The objection TO the jurisdiction of
the courts of Virginia to try Whar-
ton for the offence charged, Justice
Field said, did not find any support
in the tenth section OF the compact.
That section provided only for the
trial of citizens of Maryland in that
State where offences were commit
red by them: in Virginia upon citi-
zens of that State The offence
charged against Wharton and for
which he was tried and convicted,
was one against the State of Virginia,
and not one against any of her in
dividual citizens. Upon these
grounds the judgment of the Cir
cult Court in refusing to discharge
Wharton must be affirmed.
RIVER AND SOUND DISTRICT.
In its opinion, the Court says:
The question whether Pocomoke
sound is to be considered as part of
Pocomoke river is immaterial, in
view of the conclusion we have stat
ed, 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 Instructions, 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 Il careful examination OF the
documentary evidence offered on the
subject, we are clear that the river
and sound were at the time the COM
pact was made, and for many years
preceding it, considered and desig
mated as separate and distinct bodies
of water. and after that date, down
to what is termed the BLACK Jenll
ms award of 1871" they never lost
their separate and distinct character
and desi gnation. And weagree 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 con
founded tee river with the sound, or
claimed that the sound is the river
II h a ob Pfi On to the urisdicton Of
+Lo COURTS of VIRGINIA In fry thp