venes the settled policy of Virginia and the insti- making in the order of his argument, inverted here, tutes of the law of nations.

The doctrine of alluvion, which has been indirectly relied upon as an element on which to found the decision in this case, cannot be brought into the discussion until the party claiming it proves title to the domain. Alluvion is a legal sequence to the ownership of the soil; it is accessorial to the eminent domain; but title to the domain can never arise out of, or be predicated upon, that which is purely accidental and accessorial to itself. It is an accident which may accrue to the freehold; but, unless by special grant, it cannot accrue to one who lies beyond another, which other is the owner of the soil upon which the alluvion is formed.

the concluding force of it, to depend on the special facts above enumerated. This view is of importance in any just estimate of a judgment by so logical a mind starting a new proposition and yet unable to come to a satisfactory conclusion, and compelled to resort to, and relying upon, the special facts of the case as "of no inconsiderable importance."

This brings us to one of the objects proposedthe settlement of a boundary.

In 1785, the boundary between Virginia and Pennsylvania was definitely run and fixed upon the facts and principles settled by the Commissioners 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 sons 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 preboundary of states, she must have intended the vious year by joint commissioners, was adopted and great river Ohio and not a narrow bayou into which confirmed. The two former cases preceded the its 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 seems not to have been spoken of as a part of the Henderson. This was a Commission merely to river, 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 have considered this land as being an island of the Virginia and Ohio, the former claims "the water, Ohio 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, confederathe verdict to the defendant. Then, so far as the tion," 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 and statement of any conclusive principle, but by

1759

59 Con. U. S., A. I, s. 10, p. 1.

60 See Vat. b. 1, 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 tion is as ubiquitous in its meaning as the complex 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.65 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. Judge 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, to 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 exof 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 result, the States are exonly 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 inadsays, "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 Republic was founded.

63

The power to regulate commerce here meant to 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 unquestionation. Second-jurisdiction of a judicial or min-bly supreme and each possessed that power over commerce which is acknowledged to reside in every sovereign State." The very limited power

isterial nature.

Jurisdiction, like the term authority, has no defi

61 9 Wheat., 1 to 240.

62 Va. Act, 18th Dec., 1789.

63 Vat., b. 2, c. 8, sec. 84.

64 Vat., b. 2, c. 17, sec. 280.

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 preexisting 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 by Government. These powers are so unlimited, that revolution. This act, possessing the highest oblino 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, ean 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 inherent 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 protection 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 foreign States in their commercial relations, tution and laws of Virginia. The right of using and if they were, the important principle of inter- and navigating that stream as it belonged to Virnational law, and amongst the States of constitu- 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, unless by some compact of paramount But what is the meaning of the latter part of obligation. But 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 commonwealth lies thereon, shall be free and privileges and easements necessary to the proper common 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." 7th 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 If Virginia had made a general grant of territory sense in which that term can apply to States, is to Kentucky, 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 United States. The constitution of Kentucky, its territory at the same time. It cannot be a legisamendment 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. But this clause is not a grant to Ken- individuals to distinct and widely differing systems tucky; 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 Virgi The first cannot exist, because it is a violation of nia act of 18th of December, 1789, and 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 easeate concurrent powers, the authority must be ex-ments, franchises and privileges on these imporpress 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 compact of 1789. In the higher notions of jurisdiction, the authority, when extended beyond the context, involves constitutional absurdities; when wrested to apply to a lower range of jurisdiction, the mind is lost in the ambiguity of the expression, which has no ascertained objects and no defined limits. In the vagueness of the language there is a nullity of power.

arising out of the severalty and sovereignty of the States. Conclusively so is the condition of the Ohio river, the surface of whose bosom, is dedica ted, by these solemn acts of public munificence, to the multiplied and various wants of a commercial people and the social intercourse of States, differing in policy, but bound together by dependencies which can never be dissolved, but at a fatal price. 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 to 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 make any further cession. But whatever ministerial jurisdiction it may be deemed expedient to grant and define by such grant, is, perhaps, within the capacity of the General Assembly to give. And when the experiment of such a common and well-defined jurisdiction is so tried, and shall be found subservient to the ends of public justice and the harmony of States, it can be made perpetual, as it would be by these auspicious causes. If, however, it should prove productive of mischief and discord, the remedy will be in the rightful power, and the state which can be the most seriously affected, will have the power and the right 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 duty of self-preservation and of national import. The great thoroughfare on her western border should be preserved, in its utmost latitude of social and commercial intercourse, to the citizens of all the States without distinction. And the declaration of Congress in the Ordinance of 1787, declaring the waters within her North-western Territory, navigable highways, the construction of the federal constitution by the Supreme Court in the case of Gibbons v. Ogden, and the original, reserved

* As an example :- How can Ohio protect her offi cers within the bounds of Virginia-Can she bring her posse into Virginia to execute? Can she punish a citizen of Virginia for a rescous? Can she legislate over territory without her constitutional limits upon indefinite and doubtful claims of authority, relating to other and extraneous matters?

which denies all rights derived from acquisition or inheritance, and will be met by that conservative spirit upon which all laws and constitutions are founded, and through which the form and structure of society have any permanence.

Washington City, January, 1848.

Note by the Author.-This article was written to give perspicuity to my own views and was subsequently altered so far only as to introduce the various bistorical authorities, which I could find in the bookstores and the Library the conference. It has not been submitted to my colleagues of Congress, and to refer to the proceedings and results of and they are not responsible for any of its views.

FIRE-LIGHT MUSINGS.

When night's shadows gather slowly

O'er the bright day's gentle close,
Like a soul all pure and holy,

Sinking into death's repose,

When we sit in silent musing

By the fire-side's ruddy glow,
While the fitful rays diffusing,
Phantom-shadows round us throw,

Softly o'er the spirit stealing

Comes the light of other days,
Like that flickering flame, revealing
Phantom-shadows to the gaze.

Feelings which have long lain hidden,

Buried in the spirit's gloom,
Spring to light and life unbidden

From the stillness of their tomb.

G. W. T.