« السابقةمتابعة »
venes the seliled policy of Virginia and the insti- | making in the order of his argument, inverted here, tutes of the law of nations.
the concluding force of it, to depend on the special The doctrine of alluvion, which has been indi- facts above enumerated. This view is of imporrecily relied upon as an element on which to found tance in any just estimate of a judgment by so the decision in this case, cannot be brought into the logical a mind starting a new proposition and yet discussion until the party claiming it proves title to unable to come to a satisfactory conclusion, and the domain. Alluvion is a legal sequence to the compelled to resort to, and relying upon, the speownership of the soil; it is accessorial to the emi-cial facis of the case as “ of no inconsiderable imnent domain; but lille to the domain can never arise portance.” out of, or be predicated upon, that which is purely This brings us to one of the objects proposed accidental and accessorial to itself. It is an accident the settlement of a boundary. which may accrue to the freehold; but, unless by In 1785, the boundary between Virginia and special grant, it cannot accrue to one who lies be- Pennsylvania was definitely run and fixed upon the yond another, which other is the owner of the soil facts and principles settled by the Commissioners upon which the alluvion is formed.
in 1779. In 1786 the compact of boundary and The case of Handly v. Anthony then must stand jurisdiction between Maryland and Virginia was apon other reasons of the eminent judge who de- ratified. On the first Wednesday in March, 1789, livered the opinion in the cause. Two special rea- the Constitution of the United States commenced sans are assigned and one of general policy. First: its operation. In 1803 the boundary between Vir** when the state of Virginia made the Ohio the ginia and Tennessee, which had been run the preboendary of states, she must have intended the vious year by joint commissioners, was adopted and great siver Ohio and not a narrow bayou into which confirmed. The two former cases preceded the ils waters pass." Second : “ It is a fact of no in- adoption of the Constitution of the Union. The considerable importance in this case that the in- case of Kentucky is the case provided for by the habitants of this land” (the land separated by the third section of the fourth article of that instrunarrow bayou aforesaid) “have uniformly consid- ment, and which provides for the erection of a new ered themselves, and have been uniformly consid- State within the jurisdiction of another State. In ered by Kentucky and Indiana, as belonging to the the Tennessee case the Commissioners were aulast mentioned state. No diversity of opinion ap- thorized to settle one fact from other fixed facts, pears to have existed on this point. The water on which fact had been differently asserted by the the north-western side of the land in controversy surveys of two different surveyors, Walker and seeins not to have been spoken of as a part of the Henderson. This was a Commission merely to Torer, but as a bayou. The people of the vicinage ascertain the boundary, as in the Pennsylvania case, who viewed the river in all its changes seem not to to ascertain the degrees of longitude. As between kare considered this land as being an island of the Virginia and Ohio, the former claims “the water, Ohis and as a part of Kentucky, but as lying on the bed and the banks ;" the latter, since the decisthe north-western side of the Ohio and being a part ion of Handly v. Anthony, claims to low water of Indiana.” This surely makes a special case, mark. Between these limits is to be found the sufficient upon the facts, that “the bayou was never true grounds of compromise ; beyond or without spoken of as a part of the river,” and that “the them would be the ground of actual cession. If people of the vicinage who saw the river in all its compromise was desired, here was the legitimate changes never considered the land as an island of range for its exercise. Beyond this neither could the Ohio," " but as lying on the north-western side be expected to yield, and how far it is competent of the Ohio and being a part of Indiana" to give for a State, by any treaty, alliance, confedera. the verdict to the defendant. Then, so far as the lion," or compact, to cede territory manifestly language of the court affects the question of boun- within its borders, except in the cases provided dary between the States, it rests upon this language for in the third section of the fourth article and the of the judge. “The case is certainly not without seventeenth paragraph of the eighth section of the is difficulties ; but in great questions which con- first article of the Constitution of the United States, cern the boundaries of States, where great national admits of serious enquiry.“ If the power can be boundaries are established in general terms, with a exercised over half of the river, why not over all,view to public convenience and the avoidance of why not the southern bank—why not to the tops of controversy, we think the great object, where it the mountains? Surely this authority is incompetent can be distinctly perceived, ought not to be defeat- unless it is under that joint power which provides for ed by those technical perplexities which may some- the entire absorption of one State by another. But times influence contracts between individuals." between these limits there was room for comproBut it is remarkable that the clear and logical mise, upon legitimate grounds, in a spirit of comity. mind of the Chief Justice could finally only solve the difficulties of the case, not by the perception 59 Con. U. S., A. I, s. 10, p. 1. and statement of any conclusive principle, but by 60 See Vat. b. I, c. xxi, sec. 260, et seq.
The distribution of jurisdiction between the Eng-nite meaning. Its precise import must always be lish Admiralty and Common Law Courts suggest- ascertained from the subject matter, the context ed the line for compromise, and the divisum impe- and the relation of parties. The term jurisdicrium, with certain modifications, was proposed by tiun is as ubiquitous in its meaning as the compler Virginia through her Commissioners. The actual and diversified institutions of political society. Corwater line, the edge where the ground and the water porate bodies, aldermen, justices, judges, courts, meet, within the limits mentioned, affording the special commissions, governors, legislatures, states, most certain, definite and visible line, and the one have their jurisdictions. Then what is the jurisat all times the most easily susceptible of proof. diction desired by Ohio for use and navigation!
The interests of Virginia and a general policy And what more can Virginia give than is taken with which she is identified throughout every fibre for the General Government by the decision of of her social and political being are involved in any the Supreme Court of the United States in the case further cession, or in the settlement of boundary or of Gibbons v. Ogden. This was one of those jurisdiction upon other terms than those proposed cases commanding the first abilities of the country by Virginia in an earnest desire for adjustment. and requiring the maturest decision of the court The Ohio river is the highway for the immediate and may be looked upon as the settled law of comcarrying trade of six great States situated on its merce and navigation between the States. Jodge waters, and under the navigation laws of the Uni- Marshall there says: “Congress shall have power ted States for the whole Union, and, by treaties, 10 regulate commerce with foreign nations and perhaps, for the commerce of the world. In the among the several States and with the Indian wide range claimed for the authority of the Uni-tribes. The subject to be regulated is commerce; ted States over the navigable waters and high- and our constitution being, as was aptly said at the ways of the Union, it is of great importance bar, one of enumeration and not of definition, to that Virginia should preserve to herself, to her ascertain the extent of the power, it becomes nepeople, and to the citizens generally of the Union cessary to settle the meaning of the word. The all the protection and rights which ever and now counsel for the appellee would limit it to traffic, to belong to her by virtue of the possession and own- buying and selling, or the interchange of commodiership of the eminent domain and her reserva- ties and do not admit that it comprehends navigations out of it. The rights which belong to her by tion. This would restrict a general term applicavirtue of sovereignty, positive and reserved, are ble to many objects to one of its significations. certain, definite and unimpeachable, so long as the Commerce, undoubtedly, is traffic, but it is someConstitution of this Union shall remain a monu
thing more; it is intercourse. It describes the ment of the wisdom of the past and a defence for commercial intercourse between nations and parts of the protection of the future. Any further cession nations, in all its branches, and is regulated by premay seriously and injuriously affect the reserved scribing rules for carrying on that intercourse. rights guaranteed to Virginia and the citizens of the The mind can scarcely conceive a system for reguUnion.62 Any further cession would be a cession lating commerce between nations which shall esof sovereignty; and to the extent that the constitu- clude all laws concerning navigation, which shall tional limits of Virginia recede, the constitutional be silent on the admission of the vessels of the one jurisdiction of Ohio encroaches, unless restrained nation into the ports of the other.” From a prinby a compact paramount and anterior to the consti- ciple so broadly laid down, what power may not be tution of that State ; and the area yielded would deduced : and as a logical resolt, the States are es. only become the arena of a fiercer strife, made ma-cluded from the exercise of any control over the lignant by the frequency and the cause of collis- question of navigation, for on page 225 the Court sion. Any cession of territory is therefore inad
says, “ The history of the times will therefore missible, as alike repugnant to a sacred regard for sustain the opinion, that the grant of power over the Constitution of the Union, and forbid by the in-commerce if intended to be commensurate with terests and policy of the Commonwealth, her re-evils existing and the purpose of remedying those served and recognized rights as aforesaid, the har-evils, could be only commensurate with the power mony of the States and a just determination to of the States over the subject ;" again, page 227, maintain the compromises on which the Great Re- " The power to regulate commerce here meant to public was founded.
be granted was that power to regulate commerce This leads to the questions of jurisdiction. These which previously existed in the States. But what are two : First-jurisdiction for use and naviga- was that power? The States were unqueslionation. Second—jurisdiction of a judicial or min-bly supreme and each possessed that power over isterial nature.
commerce which is acknowledged to reside in Jurisdiction, like the term authority, has no defi- every sovereign State.” The very limited power 61 9 Wheat., 1 to 240. 69 Va. Act, 18th Dec., 1789.
64 Vat., b. 2, c. 17, sec. 280. 63 Vat., b. 2, c. 8, sec. 84.
65 9 Wheat., 189.
reserved to the States may be seen at page 237 of | Kentucky, which no other power can limit, restrain the opinion of the Court. The proposition of the or annul-a right secured by compact and guaranVirginia Commissioners embraced these reserved teed under an express provision of the Constitution rights as fully as the same were reserved to her- of the Union, a right solemnly sanctioned, before self and granted to others by the seventh clause of Ohio had a political existence, by all who could be the fifth section of the act of December 18th, 1789; parties to the compact, and by the power which had a compact ratified by Congress and preëxisting the authority to bind. Virginia, Kentucky and Conconstitutions of Kentucky and Ohio, and controll- gress, representing the sovereignty and dominion ing their provisions or operation pro hac vice. The of the North-Western Territory, were the parties jurisdiction for commerce and navigation, then, as to the contract, and made a compact which, withaforesaid, belongs under this decision to the General out the consent of each, can only be repealed hy Government. These powers are so unlimited, that revolution. This act, possessing the highest obliDo farther action of the States can extend them : gation and giving the citizens of the Union “the they are so supreme, that no action of the States free and common use and navigation” of the Ohio, can limit them.
independent of and above the constitutional jurisYet this authority, supreme as it is, cannot in- diction of the State of Ohio, suggested itself as terfere with those rights of private property which the most solemn form of guaranty which could be spring out of the constitution of the State, or are proposed on this branch of the subjects submitted inberent in the eminent domain under our constitu- for adjustment. This formed a proposition on the tional system. These, as has been stated, there is part of Virginia. It was not accepted, but still a social, moral and political necessity for maintain- remains the compact and the law of the case. But ing under the exclusive control of the law of their what were the rights reserved ? Virginia took the domicil. A judge of Virginia has deemed that the measure of her own citizen and his rights as the piviection of property, while navigating the Ohio description of the rights reserved to her people or being carried thereon, depended upon interna. "in free and common use. The right was resertional law, and cited the Oregon treaty as a case ved to use and navigate the Ohio with persons and in point, overlooking the fact that these States are property as defined and recognized by the constinot foreigo Slates in their commercial relations, lution and laws of Virginia. The right of using and if they were, the important principle of inter- and navigating that stream as it belonged 10 Virnational law, and amongst the States of constita- ginia previous to the admission of Kentucky and tional jurisdiction intervenes, that the laws or con-Ohlo, is the definition of the authority reserved over stitution of the foreign State shall in no wise be the river. infringed, opless by some compact of paramount But what is the meaning of the latter part of obligation. Bat this security will be found to rest this exception to the grant? It has been seen that with more certainty in the act for the erection of the word jurisdiction is a generic term to be definKentucky into a State, in which it is provided, ed by the context, the subject matter and the rela“That the use and navigation of the river Ohio, so tion of parties. Taking these indicia of intent, and far as the territory of the proposed State or the the “ use and navigation of the Ohio” afford the territory which shall remain within the limits of only ground of construction, and those resulting this coromonwealth lies thereon, shall be free and privileges and easements necessary to the proper cotomon to the citizens of the United States; and execution of the main purposes of the grant are the respective jurisdictions of this commonwealth alone included. There is no other subject matter and the proposed state on the river aforesaid, shall upon which the residue of the sentence can opebe concurrent only with the States which may pos. rate.
It must be confined to the use and navigasess the opposite shores of the said river.” 7ih tion, which is the subject matter of the clause. clause of the 5th Sec., act of Dec. 18th, 1789. That it did not mean jurisdiction in the broadest Ir Virginia had made a general grant of territory sense in which that term can apply to States, is 10 Kentacky, the sovereignty over the river would evident from the fact that it never has been claimhave passed with that grant; there would have ed ; that it is a constitutional solecism, involving been no limitation upon the authority of Kentucky, the contradiction of opposing principles of the orexcept that contained in the Constitution of the ganic law of two States, operating over the same Cnited States. The constitution of Kentucky, its territory at the same time. It cannot be a legisamnendment or alteration might have made changes lative jurisdiction subjecting the same territory to in the law of property which might have seriously hostile and conflicting changes of legislative poaffected the rights of persons using and navigating licy. It cannot be judicial jurisdiction subjecting the Ohio. Bat this clause is not a grant to Ken- individuals to distinct and widely differing systems toeky; it is a limitation of authority; it is the re- of criminal police. It cannot be a general minisservation of a right for using and navigating the terial jurisdiction, for this, as well as a judicial juOhio, a right reserved free and common to the risdiction, involves, more or less, the fact of, and citizens of the United States. It is a right which' necessity for, legislative jurisdiction, which again,
requires its constitutional foundation to rest upon. * and conventional rights as declared by the VirgiThe first cannot exist, because it is a violation of nia act of 18th of December, 1789, apd sanctioned well settled constitutional principles. The latter by Congress, are consistent and harmonious and cannot exist, because they can have no foundation are of paramount obligation to all subsequent grants to rest upon except the first. In any event, to cre- and constitutions of States. These acts give ease. ate concurrent powers, the authority must be ex- ments, franchises and privileges on these impor. press and definite, and they must be such as can be tant highways and at the same time protect rights granted or subsist by prior limitations, as in the arising out of the severally and sovereignty of the compact of 1789. In the higher notions of juris- States. Conclusively so is the condition of the diction, the authority, when extended beyond the Ohio river, the surface of whose bosom, is dedicacontext, involves constitutional absurdities; when ied, by these solemn acts of public munificence, to wrested to apply to a lower range of jurisdiction, the multiplied and various wants of a colomercial the mind is lost in the ambiguity of the expression, people and the social intercourse of Siales, differwhich has no ascertained objects and no defined ing in policy, but bound together by dependencies limits. In the vagueness of the language there is which can never be dissolved, but at a fatal price. a nullity of power.
And there is nothing in the relations of the States In the conference between the States, boundary of Virginia and Ohio, growing out of the questions could not be settled but by yielding all, which one of boundary and jurisdiction, which must necessa. of the parties asked. Upon the question of juris- rily lead to such deplorable consequences, and diction, the same party pressed her claim to an should they ever come, they must be traced 10 exclusive authority this side, even, the extreme causes deeper, more dangerous and more widely limits of her pretensions to boundary; in each in- extended. The aggressive spirit, which breaks stance claiming every thing that was doubtful and through solemn sanctions of law, to assail one speyielding nothing that was certain. No compro- cies of property, differs but in degree from that mise was offered and Virginia was not justified, to which denies all rights derived from acquisition or make any further cession. But whatever ministe- inheritance, and will be met by that conservative rial jurisdiction it may be deemed expedient to spirit upon which all laws and constitutions are grant and define by such grant, is, perhaps, within founded, and through which the form and structure the capacity of the General Assembly to give. of society have any permanence. And when the experiment of such a common and
Washington City, January, 1848. well-defined jurisdiction is so tried, and shall be found subservient to the ends of public justice and Note by the Author. This article was written to give the harmony of States, it can be made perpetual, perspicuity to my own views and was subsequently altered as it would be by these auspicious causes. If, so far only as to introduce the various bistorical authorihowever, it should prove productive of mischief ties, which I could find in the bookstores and the Library and discord, the remedy will be in the rightful of Congress, and to refer to the proceedings and results of
the conference. It has not been submitted to my colleagues power, and the state which can be the most seri- and they are not responsible for any of its views. ously affected, will have the power and the right
G. W. T. of self-protection under the sanction and sovereignty of law.
These are deemed the just views of the rights, duties and obligations of Virginia. To maintain and support these, under the sanction of law, is a
FIRE-LIGHT MUSINGS. duty of self-preservation and of national import. The great thoroughfare on her western border When night's shadows gather slowly should be preserved, in its utmost latitude of social O'er the bright day's gentle close, and commercial intercourse, lo the citizens of all
Like a soul all pure and holy, the States without distinction. And the declara
Sinking into death's repose, tion of Congress in the Orcinance of 1787, declar
When we sit in silent musing ing the waters within her North-western Territory, By the fire-side's ruddy glow, navigable highways, the construction of the fede- While the fitful rays diffusing, ral constitution by the Supreme Court in the case
Phantom-shadows round us throw, of Gibbons v. Ogden, and the original, reserved
Softly o'er the spirit stealing
Comes the light of other days, * As an example :- How can Ohio protect her offi.
Like that flickering flame, revealing cers within the bounds of Virginia-Can she bring her
Phantom-shadows to the gaze. posse into Virginia to execute? Can she punish a citizen of Virginia for a rescous ? Can she legislate over territory Feelings which have long lain hidden, without her constitutional limits upon indefinite and doubt. Buried in the spirit's gloom, ful claims of authority, relating to other and extraneous Spring to light and life unbidden matters?
From the stillness of their tomb.
Thoughts of joy and thoughts of sorrow,
Hopes and visions passed awayDreamings of the dim to-morrow,
Memories of the vanished day
And we feel that life is fleeting,
That this world is not our home,That our hearts at each swift beating
Bear us onward to the tomb
All in dim procession crowding,
Pass before the spirit's sight ; Changeful thoughts the soul enshrouding
in a veil of misty light.
Wherefore then should life be wasted,
Passed in dreams and visions vain? Though the cup of joy be tasted,
It may bring us future pain.
Let us live, our bright gifts using,
Time and talent rightly spent, That our future fire-side musing
With no sad reproach be blent!
And we look with mournful sadness
On our childhood's pleasures past; Sunny days 100 full of gladness
In a world like this to last. Musing on these pleasures fleeting,
Live we in their joys again, 'Till aroused from fancy's cheating,
Wreathes the soul in deeper pain. And we pine in weary yearning
For the things that are no more, From life's brightest promise turning
To what earth may not restore. Dreams of hope too dimly cherished
Whither hath their brightness fled ? Forms we loved loo fondiy, perished,
Sleeping with the silent dead.
A RIDE IN THE RAIN.
BY IK MARVEL.
Words unheeded in their hour,
Smiles and glances long since o'er, With a strange and thrilling power
Rise within our souls once more.
In the soul lies no forgetting,
Howsoe'er ils memories sleep; And with each some sad regretting
Dolh its tearful vigil keep.
And when this life's mournful measures
Sweep across the wearied brain, Sighing of its pains and pleasures
lo a low and wailing strain, Shadows of the past come sweeping
O'er the present's living bloom; And our eyes grow dim with weeping,
And our spirits sad with gloom,
And we feel with deeper feeling,
Many a stern and mournful truth, Whose sad tones come seldom stealing
O'er the thoughtless heart of youth.
On the third of May, I was at the little mining town of Merthyr Tydvil-a nest of forges, and
white-washed houses, dropped among the broken mountains of Southern Wales. You will find, if you ever go there, the Castle Inn a very good one, (my bill for dinner, lodging, and breakfast, was only 5s. 10d.) and seated in the window of the commercial room, which looks upon the principal, but very narrow, street of the place, you may amuse yourself for a couple of hours, in watching such mis. chievous, smutty-faced boys, and such gaunt old
women in bell crowned hats and short clothes, as I am sure you never saw anywhere else.
And in the evening--you must by no means fail of this you must take the inn porter (Ben. I think is his name, and he wears a low crowned hat, with a broad brim) to show you through the forges.
I cannot undertake to describe to you what you will see: but I know very well that when you come back at midnight-your eyes half put out with the glare of furnaces, and streams of red hot iron, and your memory crowded with the images of the thousand swart and sweaty workers-men, women and children-you will dream all night of Tartarus and the sixth book of Æneas; and in your sleep be feeling for your trowsers pocket to find an obolus for Charon.
-Alleast it was so with me: and at nine o'clock next morning, my mind had not drifted clear of the phantom sights—of the rivers of running iron-of the half-naked begrimmed workers, pulling and thrusting at the molten masses, or wiping their sooty foreheads as the gleaming metal came wallowing through the sand at their feet-of the hun
dreds of pale children, and feeble women and grayhaired men,