12.18

SUBSTANCE OF AN ARGUMENT

OF

SAMUEL F. VINTON,

FOR THE DEFENDANTS, IN THE CASE OF THE

COMMONWEALTH OF VIRGINIA vs. PETER M. GARNER AND OTHERS,

FOR AN ALLEGED ABDUCTION OF CERTAIN SLAVES.

Delivered before the General Court of Virginia, at its December Term, A. D. 1845.

Mr. VINTON said:

May it please your Honors:

ion of the case. Much has been said, and eloquently, by the learned counsel in praise of the institution of Slavery, and in derogation of the abolitionists. I did not come here, may it please your Honors, to engage in those questions that are at issue between the slaveholders and the abolitionists-I am not now called upon to assail the one or defend the

I cannot but regret that my learned friend (the Hon. JOHN M. PATTON,) who opened this case for the Commonwealth of Virginia, has somewhat impaired the value of so good an argument, by the introduction into it, both at its commencement and conclusion, of a topic so very foreign to the sub-other-the case before us has nothing to do ject now under consideration. To all else in his argument, I listened with that pleasure and delight, which high intellectual effort never fails to inspire. It will be understood, that I refer to what was said by him on the subject of slavery, and of the correspondence now going on, and not yet brought to a close, between the Executives of the two States, making mutual demands of certain persons as fugitives from justice. These are matters not before the Court, and their connection with the case now before us, is not very apparent.

with either-and I cannot permit myself to be drawn aside, or seduced into a discussion of this sort by any thing that has been, or can be said, on that subject. I have the same remark to make about the correspondence between the Executive of Virginia and of Ohio. The Governor of Ohio has seen fit to send me here to argue the case now before the Court, and to protect, as well as I may, those rights of sovereignty and of soil that are brought in question in it. But he has not solicited my aid in his correspondence with Virginia. If he be right, he needs no defence If the argument of my learned friend had from me. If he be wrong, he best knows been an address to a popular assembly, or how to defend himself. And whether he be even before a Jury of the country, I should right or wrong, I have no authority to speak have been at no loss to understand the object for him here before this tribunal, about a in bringing these topics into it. But when matter which it is not called upon to decide, they are addressed to this grave and dignified § and over which it has no jurisdiction or contribunal of Judges, sitting here to decide a trol. I shall also pass over in the same way naked question of law, I am unable to per- all that was so eloquently said about the comceive their relevancy, or in what way they parative power and prowess of the people of can aid the Court in coming to a right decis-Virginia and Ohio. I would fain trust in

God, the day may never come, when we, or verdict, in the next place, finds that the Deour posterity, shall decide on the battle-field { fendants were at the time when this act was whether Virginia be able to dictate law to committed, citizens of Ohio, residing in that Ohio, or Ohio to Virginia. All such specu- State, about four miles back from the Ohio lation is worse than profitless, and can es- river. That on the night when the act was tablish nothing. If the signs of the times do committed, the Defendants, with some other not greatly deceive us, the day is not far dis- persons, came from their residence to the tant when the people of both may be called river on the Ohio side, and going down under upon to stand side by side in the presence of the bank, remained there for some time, when the common enemy of the country-when six negro slaves, the property of said Harample scope will be given to each for the wood, came across the river from the Virginia exhibition of their valor and prowess on fitter side, in a canoe, and landed it obliquely fields than those of civil strife. If this call against the Ohio shore, running the bow upbe made, the established valor of Virginia, on the beach. That the Defendants, and the deeds she has done, all her history as those in company with them, went down to sures us what she will do for her country. It the canoe as it struck the shore, and without will then be seen whether Ohio will do her entering it, stepped into the water at the bow, duty also. Firm as is my faith that she will and assisted in taking from it some bags and not be found wanting in the hour of trial, I articles of clothing which lay in that part of shall nevertheless promise nothing for her, the canoe. That the Defendants, and their much less will I, here in this place, offend companions, taking up these articles, were against good taste by vaunting any thing in proceeding up the bank of the river, in comher behalf. pany with the slaves, when certain persons,

I will now proceed to the argument of the who lay in ambush, on the top of the bank on case before the Court..

the Ohio side, rushed down upon them, and seizing the Defendants, carried them forcibly across the Ohio into Virginia, where they were held in custody, indicted and tried for the offence above specified.

The indictment contains three charges, or counts, founded upon different sections of the Criminal Code of Virginia-each section creating a distinct offence. But the facts found by the jury in their special verdict rendered The verdict further finds, that the slaves on on the trial of the case, show that the proof that night left their master in Virginia, withis applicable to one of the charges only. I out his knowledge or consent. The jury also shall therefore confine my remarks to it alone { found that when the Ohio river is at that That count alleges that the defendants, Gar-stage which the boatmen on it call low water, ner, Thomas, and Loraine, did feloniously the depth of water on the bars, in the chancarry and cause to be carried out of the Com-nel, is from 17 to 20 inches. That at exmonwealth of Virginia into the State of Ohio, treme low water, or where the water has six negro slaves, without the consent of John once been known to be, the depth on the H. Harwood, their owner, with intent to de- bars in the channel was eleven inches only. fraud him of the use, enjoyment, property and That on the night of the 9th of July, 1845, possession of said slaves, contrary to the when this transaction took place, the water Statute of Virginia in such case made and on the bars in the channel was 39 inches provided. The verdict, in the first place, finds deep. That the average depth of water in the existence of certain laws relating to the the channel, on said bars, for the whole year, title to, and jurisdiction over the place where is six feet, or thereabouts.—That taking the the act in question was done-which will be whole year round, one year with another, the noticed in the course of my argument. The water for nine months, or thereabouts, would.

be higher than it was on said night of the might be made in advance of it, which I pro- 9th of July, and for three months, or there- pose to state, but not to argue. It is, whether abouts, lower than it then was.-That below where the crime consists (as is alleged in this the banks, the shores and bottom of the river Count of the indictment,) in carrying slaves are for the most part a gradually inclined out of one State into another, the Courts of plane, converging towards the channel, and either State have jurisdiction of the offence? that at the place where said canoe. was land-Or whether the trial and punishment of it, ed, the edge of the water at extreme low-wa- does not exclusively belong to the jurisdiction ter is some 50 or 60 feet in a right line measuring on the beach, below, where it was at that place on said night of the 9th of July.From these facts, the question presents itself, Did these Defendants, in aid of the escape of these slaves, pass over the territorial limits of Ohio, and enter within the limits and jurisdiction of the State of Virginia?

If they did not, then it is admitted by the learned Counsel who opened the case, that they are not amenable to the laws of Virginia.—Whether they did so pass out of the limits and jurisdiction of Ohio, is the sole question that I intend to discuss.

of the Federal Courts? The principles laid down and settled by the Supreme Court of the United States in the case of Prigg vs. the Commonwealth of Pennsylvania (16 Pet. 539) raise, to say the least of it, a serious doubt whether the sole power to prescribe the punishment for such a case, is not vested in the Congress of the United States, and whether, as the law now stands, an indictment can be found, or punishment inflicted, except it be provided for by the act of Congress of the 12th of February, 1793, entitled "An Act respecting Fugitives from Justice, and persons escaping from the service of their Masters.". (See 2 Vol. L. U. S. 331.)

Passing over this enquiry, the question returns, was this act done within the limits or jurisdiction of Virginia? I shall maintain it was not, and shall place the negative of this proposition on several grounds.

The first ground upon which I shall maintain the negative of this proposition is, that the Supreme Court of the U. States has so decided

This presents a simple question of boundary between the two States, and must be settled in the same way, and by the same law and principles that would govern it, if the present were an indictment against the Defendants for stealing a bale of merchandise at the place where these acts were done by them. And I cannot but regret exceedingly that this question, so important to the State of Ohio, should have arisen out of a transac-it. I shall give that decision a distinct considtion having any connexion with slaves or eration by itself, and shall then present the slavery, since this adventitious circumstance case on its own principles, independently of creates a prejudice against the case, and gives that decision. The claim now set up for Virit an outward appearance of being something ginia is, that her territory and jurisdiction exdifferent from what it in reality is, and which tend to the top of the bank on the Ohio side of the mind has a natural tendency to associate the river. If that ground be maintainable, with the question that does in fact arise. I then I admit the decision must be in favor of am sure I should do great injustice to this the jurisdiction of the Court over these DefenHonorable Court, if I were to imagine it pos- dants; but it is equally obvious that, if such be sible its judgment could be, in the least de- the fact, then the case laid in the indictment gree, influenced by the outward and acciden- and specified in the Statute of Virginia, has tal form in which this question is presented. not been made out—that is to say, the slaves, Before, however, proceeding to the argument if it be so, were not carried out of Virginia of the question of boundary, I beg leave to into Ohio; which is the substantial fact alsuggest, that another important question ledged in this count and in the Statute on

which it is founded. But if the top of the cording to that decision, this Court has not bank be not the boundary, then the argument jurisdiction of the case, for it is not claimed

or pretended that these Defendants went to or beyond the low water line. The case to which I refer is Handley's Lessee vs. Anthony, reported by Wheaton 5 vol. 374. It appears from the statement of the facts on

in behalf of Virginia concedes that she has no jurisdiction over the case, since it is strenuously insisted by her learned Counsel, that the boundary line must be either at the top of the bank on one of the shores of the river, or in the middle of the channel, and that the{which that case was decided, that at a place law of nations knows no other boundary be- on the upper side of the Ohio River, in the tween States divided by a river, than one of State of Indiana, a considerable body of land these. And proceeding on this assumption, is enclosed by the river, in the form of a penhe has labored with great zeal and ability in insula;-that on the upper side, or neck of his endeavors to overthrow the authority of the peninsula, a channel or bayou puts out of the case to which I have already alluded, and the Ohio, and running across the neck, disshall shortly direct the attention of the Court, charges itself into the river on the other side in which it was decided by the Supreme Court { of the peninsula :-That at low water of the of the United States, that the line of the low Ohio, or when the river is less than ten feet water mark on the Northwest, or Ohio side above low water, the channel is dry, and the of the river, is the boundary. As I do not in- peninsula forms a part of the main land; but tend, nor deem it material, to discuss the when the river is more than ten feet above proposition laid down by the learned counsel, { low water (which is the case for a consideraas the starting point of his argument, that ble portion of the year,) the peninsula bethe boundary must be fixed at the top of the bank or in the middle of the stream of the Ohio; I will content myself with a single comment on that topic; which is, that his position overlooks the well established distinction, which he will find laid down in numerous adjudicated cases, between those rivers where the tide ebbs and flows, and are subject to maritime jurisdiction, and { those rivers that are above tide water, and beyond the maritime jurisdiction, as is the case with the river Ohio. His error consists in applying the law of tide water rivers to all rivers indiscriminately. For this distinction, see 3 Sumner's Rep. 178. 2 Deveraux Rep. 30. 11 Ohio Rep. 142. 17 Wendell 571. 3 Kent's Com. 427. 14 Serg. & Rawle 74. 6 Mass. 435. 8 Greenleaf 90.

comes an island, wholly surrounded by the water of the river;-that at that point the river rises above low water from forty to fifty feet. The United States being the proprietor of the land on the upper, or Indiana side of the river, as far as the limits of that State extend, surveyed this peninsula, sold it out, and issued a patent for it to the purchaser. The State of Kentucky, which owned the country on the lower and opposite side of the river, as far as her limits extend, granted a land warrant to one of her citizens, who laid it down on this peninsula, and obtained a patent from that State for the same land covered by the patent from the United States. The Ken. {tucky patentee then brought an action of ejectment in the Circuit Court of the United States, held in the State of Kentucky, against

I shall now return to the position that I the claimant under the patent from the United propose first to establish, viz: that the Su-States, who was in possession of the land. preme Court of the United States has already Both Governments had granted patents for decided that the territory of Virginia does not the same land. The title, it is plain, could extend to the localities where the acts com- not exist in both at the same time, nor could plained of were done-that the low water the land be within the limits of both States mark, on the Ohio side, is the boundary. Ac--consequently one of these patents was of

necessity invalid. The patent was void which or Counsel. Is not the inference irresistible,. had emanated from that Government beyond that it was regarded by all, as too absurd to whose limits the land was situated. In this be seriously advanced? On the trial of that state of facts, the Plaintiff's case necessarily case in the Circuit Court, it was insisted by rested on the sole question, whether the land the Plaintiff's Counsel, that the medium stage in controversy was within or without the lim-of the river, between high and low water on its of Kentucky. If the boundary of Ken- the upper side of the Ohio, was the boundary; tucky (which at the time of the cession by and the Court was called upon so to instruct Virginia of the country beyond the Ohio to the Jury. The Court refused to give it, and the United States, was a part of Virginia, instead thereof, instructed them that the low and has therefore now the same river boun_water line, on that side of the river, was the dary as Virginia,) extends, as is now claimed, boundary between Kentucky and Indiana. to high water mark, or the top of the bank on This charge was excepted to by the Plainthe upper side of the Ohio, then it is plain the tiff's Counsel, and it came under the direct land in controversy in that case, was within { revision of the Supreme Court of the United the limits of Kentucky, and the Kentucky States, on writ of error. The instruction patentee would be entitled to recover the given to the Jury was affirmed by that Court, land. The Court, therefore, in deciding a-in all its points. Now this high and direct gainst the validity of the Kentucky patent, of { authority must be broken down before a denecessity repudiated the top of the bank, or cision can be rendered in this case against high water mark, as the boundary. It is, these Defendants. This is admitted by the perhaps, worthy of remark, that the case was learned Counsel, and hence his effort to overtried in the Circuit Court, by Kentucky law-throw it. I admit that this decision, how yers, and before a Court composed of Judges who were citizens of Kentucky, one of whom was a Judge of the Supreme Court of the United States. It was tried by men who had an interest, and no doubt felt a disposition, to maintain the limits of Kentucky to their legal, fair and full extent. When the case was brought up to the Supreme Court of the United States, it was argued there for the Plaintiff, by counsel from Kentucky of the highest eminence in that State, and for the Defendant by a member of the Virginia bar, then being the examination of the Court incidentally in the Attorney General of the United States. a controversy between others, and cannot And the final decision of the Court was pro- therefore be conclusive in a direct issue made nounced by Chief Justice Marshall, who was up between them, if they shall hereafter see himself a citizen of Virginia. The boundary fit to settle their boundaries by an appeal to now contended for, as I have already said, the Supreme Court of the United States, in would, if maintainable, have rendered the the mode prescribed by the Constitution.Plaintiff's recovery in that case, certain and irresistible. This could not have escaped the Court or bar, especially a Court and bar so composed; yet no such claim, as a boundary at the top of the bank, or at high water mark, was set up, or even alluded to by the Court

high so ever the respect to which it is entitled, is not legally and strictly binding and conclusive upon the States on either side of the Ohio. They were not parties to it, and had no opportunity afforded them to exhibit their titles, and maintain their rights and claims before the Court, And this is more emphatically true of the States on the North West side of the river, which had no part or lot in the management or preparation of the case. The rights of the States came under,

And I shall hereafter show, that certain facts were assumed as true, without any apparent investigation, both by the Court and bar, upon which the Court predicated the opinion that the low water mark, on the upper side of the river, is the boundary. Whereas if,