12.1667

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

and shores of the river, and the water-craft they fondly hope to attain, will render indislying there, shall be governed by such police pensable to their comfort and prosperity, that laws as Kentucky might choose to make? you should have the power, at your will, to That the contracts made at the Ohio shore, stop them all? Like all unfit, and misplaced and on the boats attached to it, shall be gov-power, it would be a curse both to you and erned by the laws of Kentucky or Virginia, of to us, if you had it. It is true, that if you which they know nothing, and were not even could make a final decision of this question thought of when they entered into them? in your favor, and should do it, you would, That the citizens of Ohio, while thus enga- for the moment, quicken into life, a wild spirit ged, should be there arrested and carried into of speculation. For who can doubt but that imprisonment by the officers of the opposite so soon, and as fast as steam would carry States, their contracts subjected to, and them to its shores, multitudes of adventurers their persons punished by laws made by men would rush there to lay down your land warin whose election they have had no voice, and rants upon the river shore between high and over whom they can exercise no control or low water mark on the whole line of the borinfluence? Or would not these things, in any der States! I solemnly declare as a citizen' community whatever, be justly regarded as of Ohio, that if you were to offer us this powan intolerable grievance? Go into the City er over the Virginia shore, I would not take of Cincinnati, or into any town on the Ohio, it as a gift.—I would not accept a power tha t and ask its business inhabitants, what part of would bring with it perpetual annoyance, colall their public streets, or places of resort, lision, and never-ending controversies bethey could least afford to give up to the con- tween those who are neighbors and whose trol of the State on the opposite bank, and interest it is, and ever must be, to be friends. they would tell, with one united voice, that Before passing from this topic to the next the wharf on the river, and the shore of the head that I propose to discuss, permit me, to river, were the last that they could surren- enquire, whether, in case you hold that Virder. And of what use, let me enquire, would ginia has a right to make arrests on the Ohio this power be to you, if you had it; but to shore-that her laws both civil and criminal keep up and nourish an everlasting enmity extend there, you will not thereby involve between you and us, and administer food to a your own people, on your own side of the never-dying feud? Does it comport with that river in a like responsibility to the laws and regard for "the convenience of the future jurisdiction of the State of Ohio? In a word, population" which the venerable Chief Justice whether a regard to your own policy and consays Virginia must have had in view in pro-venience would not admonish you to abstain viding for the erection of New States on the from such a decision? I shall endeavor to Ohio? Is it consistent with this statesman- show that place the actual boundary where like and benevolent intention of Virginia, you may, at the top of the bank-at the that if the people of the new States have oc- medium stage of the water-at low water casion to erect a wharf at the water edge-mark--or in the middle of the channel,-and to carry a rail way to the river-to lay down Ohio has a right to do on the Virginia shore, a suction pump to draw up supplies of water whatever Virginia has a right to do on the for their steam machinery, or for the daily Ohio side. When Virginia passed her act of wants of the inhabitants of their towns-in Assembly in December 1789, to enable the a word, to approach the water and use it for people of Kentucky to form a Constitution a thousand new and nameless purposes, which and become a State, she proposed to Kenthe fast multiplying pursuits and wants of tucky certain conditions for her assent, which society, in the progress of that civilization { were to be binding on both parties. One of

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those conditions related to the Ohio river, and from a grant of concurrent jurisdiction that if proposed that its use and navigation along its the river with the Virginia jurisdiction excourse in passing Virginia and Kentucky, tends on the Ohio side to the top of the bank, should be free and common to the citizens of it extends with the Ohio jurisdiction to the the United States, and that the respective ju- corresponding place on the Virginia shorerisdictions of those States should be concur- that if Virginia can make laws for the river rent with the States possessing the opposite shores beach on the Ohio side between high and of the river? This condition was assented to low water mark-can serve process thereby the convention that formed the constitution can seize persons standing there and try of Kentucky, and the admission of Kentucky them in her Courts for acts done there, so into the Union was an act of assent thereto can Ohio do the same things on the Virginia by Congress. And thus validity and effect according to the form prescribed by the Constitution of the United States was given to this compact between the two States, and is binding and obligatory on both. That condition or compact is in these words viz: "The use and navigation of the river Ohio, so far as the territory of the proposed State (Kentucky) or the territory which shall remain "within the limits of this commonwealth "(Virginia) lies thereon, shall be free and common to the citizens of the United States, "and the respective jurisdictions of this com-land between high and low water mark on "monwealth and of the proposed State on their own side of the river? Nor need I say, "the river as aforesaid shall be concurrent that it could not have been understood by "only with the States that may possess the op- those who made this compact that the limits posite shores of the said river." (See Hen- of the river were as broad as is now contenning's Virginia Statutes 13 Vol. page 19 Sec. §ded, or that compact would never have been 11.) By every known rule for the interpreta-proposed without qualification or restriction tion of Statutes, the word "river Ohio" found upon the jurisdiction of the opposite states. in this compact means the same identical riv- It has not been claimed in the argument er neither more nor less than is meant by for Virginia, nor can it be successfully, that "Ohio River" in the act of cession passed by Virginia by virtue of this grant of concurrent Virginia six years before. And here permit jurisdiction, acquired any rights beyond her me, to enquire, what is jurisdiction? It is territorial boundary wherever that the right of dominion-of sovereign command be. It must be remembered that Virginia over any place the right to make laws for it and carry them into execution; and all these rights where there is no convention respecting them are exclusive of the rights of all others. See Vattel Book 2, Chap. 7, Sec. 83-84.

shore. Need, I ask, whether the citizens of the City of Wheeling-of the Town of Par-kersburg, or the people of Virginia who dwell on the banks of that river, would be satisfied or ought to be, with a construction of this compact between Virginia and Kentucky, that will bring the laws of Ohio to operate on their persons, conduct and con-tracts, while engaged about their daily and ordinary business at their Steam Boats, wharf boats, and other craft lying at their shore; and not only that, but when they are on dry

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The lexicographers define the word concurrent to mean, "joint and equal, existing together and operating on the same objects." It follows then as an irresistable conclusion

may

and Kentucky were the grantors of this jurisdiction-the States on the opposite side are the Grantees--the latter have granted nothing-they must themselves become grantors before Virginia and Kentucky can come over the line of their boundary, wherever that may be, which was created by the deed of cession.. And thus we are brought back again to the question already discussed, and already settled in the case of Handley's lessee vs. An

thony, viz: where is the boundary by virtue of Sec. 226; Wheaton's law of Nations 1 Vol. "that cession? 219. 220.

I have already shown that upon the facts assumed, the case of Handley's lessee vs. Anthony was decided right. I shall show in the course of my historical examination,

I have closed the discussion of that question, and shall now proceed to a second and much broader enquiry. That Virginia during the war of the Revolution, set up a claim to the country beyond the Ohio river is unques-that if the true facts in respect to the original tionable. But I shall insist and endeavor to title to the country beyond the Ohio had been prove that she never had a valid title to it before the Court, and made a part of the rethat her title not only to it, but to both sides cord in that case, the decision then must and of the Ohio was disputed by the confederacy would have been, that the middle of the Ohio and by other States-that they claimed all is the boundary. The Supreme Court of the that she asserted a right to that in the end State of Ohio has two or three times acshe adjusted her claim by compromise as oth-knowledged the authority of that case and er sovereignties are in the habit of settling held in conformity to it that the low water their disputes-that it was thus settled and mark on the Ohio side is the boundary. (See she relinquished her claim beyond the Ohio, 2 Ohio Rep. 310; 11 Ohio Rep. 142; Nov. with the express understanding, that the ac-No. 1843, of Western Law Journal, page 54.) ceptance of her act of cession was not to be But that Court must be presumed not to taken as an admission by the confederacy, have known, that Handley's Lessee vs. An(who was the Grantee) that Virginia had a thony was decided upon an erroneous assumptitle to the country ceded by her-that the tion of facts. I shall now endeavor to esseparate and acknowledged right of Virginia tablish the position, that the middle of the to the country on the lower and of the con- stream is, in fact, the true legal boundary befederacy to that on the upper bank of thetween Ohio and Virginia. I may as well reOhio begun with this compromise and consequently, that the rights of the States on the opposite shores are co-eval with each other; and that this compromise controls and determines the extent and legal effect of the deed of cession by Virginia.

mark here that where a river or an arm of the sea divides two coterminous countries, the law of nations does not favor the exclusive claims of either, (such as is set up here by Virginia) to the whole rivers.

Mr. Wheaton in his treatise on the law of Nations 1 Vol. 219–220 lays down the rule,

If I can succeed in establishing these facts, which in a great measure depend upon his-that where a navigable river forms the bountory-then I shall have shown, that in the case of Handley's lessee vs. Anthony, the Court and the parties fell into an error of fact in assuming that Virginia had the original title to the Country beyond the Ohio, and shall have brought this case plainly within the principle of the law of nations already adverted to, and recognized by the Court in that case viz: that "when a great river is the boundary between two nations or States, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream." 5 Wheat. 379. Vattel's law of Nations Book 1. Chap. 22,

dary of two States, the middle of the channel is generally taken as the line of separation between them-that a claim of exclusive property over rivers or portions of the sea contiguous to a country is not to be viewed with much indulgence-that the general presumption that each owns to the middle bears strongly against such exclusive rights-that they are to be strictly construed and clearly made out. From this doctrine it would follow that if I even prove it to be doubtful, whether Virginia had, in fact, a title to the country beyond the Ohio, then the middle of the channel is the boundary. The learned

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Counsel for Virginia founds the title of that company, which was anciently called, "the State to the Territory beyond the Ohio upon { London Company," with his license to purthe charter of King James the first, in the chase and hold "ány manner of lands, teneyear A. D. 1609, now commonly called, "the" ments, and hereditaments, goods and chatVirginia charter." this is the same title "tels within our realm of England, and do

upon which she

her claim to it, at the "minion of Wales." He in the next place period of the American Revolution, and when grants to the corporation, their successors and she compromised her dispute with the Con-assigns, "all those lands, countries and terfederacy. This appears from her act of ces-"ritories, situate, lying and being in that part sion of the 20th of October 1783, passed to" of America called Virginia, from the point authorise her Delegates in Congress to con-" of land, called Cape or Point Comfort all vey the Country to the United States, and in" along the sea-coast to the Northward the deed of cession made in conformity to "200 miles, and from the said point of Cape the act on the 1st of March 1784. The lan-" Comfort all along the sea coast to the Southguage of the act of Assembly and of the deed" ward 200 miles, and all that space and cirof cession being, that they "convey, transfer, "cuit of land lying from the sea-coast of the "assign, and make over to the United States" precinct aforesaid up into the land, through"in Congress assembled for the benefit of" out from sea to sea West and North-West; "said States all right, title, and claim as well" and also all the islands lying within one "of soil as jurisdiction, which the said Com-" hundred miles, along the coast of both seas "monwealth hath to the Territory within the" of the precinct aforesaid"—to hold the same "limits of the Virginia Charter situate, lying in free and common socage. See Henning's "and being to the North West of the River Virginia stat. 1 Vol. 88-89--1 Vol. Hazard's "Ohio." (1. Vol. L. U. S. 474.) Coll. 64-65.

The first thing that strikes us in reference the question we are now making is that, that the fee to the country is vested in the Corporation, their successors and assignsand not in the colony or people of Virginia.

I shall now proceed to enquire whether the Virginia charter did, in fact, furnish a found-to ation upon which that State could sustain-a title to the country beyond the Ohio or to any portion of the Territory West of the Allegheny mountains. To obtain a right un-By the words "from sea to sea," the Atlantic derstanding of the legal effect of this charter, it is necessary to know what it, in fact, was -to whom and under what circumstances it was granted. This Virginia charter, was not, as the name now given to it, and that by which it is called in the act of cession would seem to imply, a charter to Virginia, or to the colony of Virginia, or to the people of Virginia; but it was a charter by James in 1609, to a company of gentlemen residing principally in and about the city of London, and who by that charter were organized into a corporation under the name and style of run, the grant does not specify. If the West "The Treasurer and Company of adventur-line be drawn from the Northern termination ers and Planters of the City of London for of the coast line, and the North West from the first Colony of Virginia." By this char-its Southern termination at Cape Fear, it ter, the King in the first place authorised this would leave the State of Ohio West of and

and Pacific are supposed to be meant. The grant begins by drawing a base line of 400 miles in length along the Atlantic coast, of which Point Comfort is the centre, the Northern extreme of which would be at or near Cape May in New Jersey, and the Southern termination at or near Cape Fear in N. Carolina. From one of these terminations a line was to be drawn West, and from the other North West, back into the land "from sea to sea;" but from which extremity the West and from which the North West line is to be