Barnes v. State

Marbury, C. J., delivered the opinion of the Court. Appellant, who was not a citizen of Maryland, was indicted by the Grand Jury of Prince George’s County, Maryland, for committing a rape on a citizen of Virginia. The crime occurred on August 4,1945, on a steamboat running on the Potomac River, from Norfolk to Washington, and passing through Prince George’s County, although at the time of the crime, the evidence shows it was in the waters of Charles County. Appellant filed a plea to the jurisdiction to which the State’s demurrers were sustained.

The appellant was then tried and convicted, and after conviction he filed a motion in arrest of judgment. This was overruled and he was sentenced to be hanged, and on the same day noted his appeal. The questions raised by the appellant have nothing to do with the conduct of the trial, but concern the jurisdiction of the Circuit Court for Prince George’s County. It is contended, first, that if that Court has jurisdiction, it has it only by virtue of Section 631 of Article 27 of the Annotated Code, which provides for the prosecution of any person who may commit any indictable offense on a steamboat within the State of Maryland in any county, to or through which the steamboat may run.

The last portion of the statute states that in case of bailable offenses, the offender may be held to bail by any justice of the peace in any such county “but such presentation, indictment and trial shall be in the same county and city in which such justice of the peace shall be.” It is claimed in the motion for arrest of judgment that the proof shows that the offense occurred outside of Prince ²⁹⁰ George’s County, and it is not shown that the defendant was brought before a justice of the peace in Prince George’s County. It is urged that the last is a jurisdictional allegation and must show on the record. There is nothing in the record to show that appellant was ever brought before a justice of the peace anywhere before he was indicted. It is the usual practice to bring such offenders before a justice of the peafie, who, after hearing or waiver of hearing, holds them for the action of the grand jury.

It is significant that appellant does not allege that he was not brought before a justice of the peace, but merely that the record does not show he was. The procedure of bringing a person charged with a felony before a magistrate is one of the ordinary processes of justice, and is not usually necessary to give jurisdiction to a court in which a grand jury has indicted him. Under usual circumstances, if the crime occurred within the territorial limits of the county, there would be nothing in the records of the trial before the Circuit Court of that county to show by what means he was apprehended or held for the action of the grand jury. The proceedings would start with the presentment and the indictment.

Section 631 of Article 27 is not, in our opinion, intended to require any entry in the court records in cases coming under its provisions. It is intended to give jurisdiction over an offender, coming within its provisions, to the county which first uses the ordinary processes to hold him, preliminary to indictmeht. If the appellant in this case had alleged and shown, at a proper time and in an appropriate manner during the proceedings, that he had been taken before a justice of the peace and held by the latter in some county other than Prince George’s, the question might then arise whether Prince George’s County or the other county or both had jurisdiction. But that is not the situation presented.

We see no force in this contention of appellant. Appellant’s second contention is much more far reaching. He claims that under the Compact of 1785, made ²⁹¹ between the States of Maryland and Virginia, at a time when the states were bound together only by the Articles of Confederation, and before the Constitution of the United States was adopted, offenses of the kind with which he is charged, occurring on the Potomac River, if against a citizen of the State of Virginia, can only be tried in the Courts of Virginia, and that the Courts of Maryland have no jurisdiction over them. The Compact of 1785, made between two sovereign states, at a time when they had the right to enter into such an agreement, was ratified and approved by Chapter 1 of the Acts of 1785 of the General Assembly of Maryland, and was also approved and ratified by Chapter 18 of the Acts of 1786 of the General Assembly of Virginia.

A consideration of the circumstances leading up to the Compact and the Compact itself, and the subsequent legislation, and the decisions of this court and the courts of Virginia, and the Federal courts, in relation to the Compact, is necessary in order to decide this question. In construing a statute, “* * * courts may, with propriety, recur to the history of the times when it was passed; and this is frequently necessary in order to ascertain the reason as well as the meaning of particular provisions in it.” United States v. Union Pac. R. Co., 91 U. S. 79 , 23 L. Ed. 224 . “Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them, as best to answer that intention, which may be collected from the cause or necessity of making the Act, or from foreign circumstances; and when discovered ought to be followed, although such construction may seem to be contrary to the letter of the statute.” Ches. & Ohio Canal Co. v. Baltimore & Ohio R. Co., 4 Gill & J. 1, at pages 151, 152. This last quotation is repeated in Frazier v. Warfield, 13 Md. 279 , at page 301.

See also Agricultural College v. Atkinson, 102 Md. 557, 560 , 62 A. 1035 ; Riggin v. Wyatt, 139 Md. 476 , at page 478, 115 A. 755 ; and Compensation Board v. Albrecht, 183 Md. 87 , at page 94, 36 A. 2d 666 . Bearing in mind these well estab ²⁹² lished principles of statutory construction, we turn first to an examination of the circumstances and conditions leading up to the execution of the Compact of 1785. There had been, since the earliest times, boundary difficulties between the province of Maryland and the province of Virginia. These difficulties were based upon contradictory charters granted respectively to Lord Baltimore, on the one hand, and to the London Company, and to Lord Culpepper, on the other.

It is not necessary to discuss these boundary questions, except to state that at the time of the Compact, both states claimed the Potomac River, and both also claimed a part of the Chesapeake Bay, and of the Pocomoke River, depending upon the location of Watkins Point. These boundary disputes were not in themselves the reason for the Compact, which had nothing to do with boundaries as such. But the boundary disputes gave rise to frequent conflict as to jurisdiction over the waters of the Potomac River, the Pocomoke River, and certain parts of Chesapeake Bay, and the rights of citizens of the two states on these waters and adjacent thereto. In addition, Virginia, which had undisputed ownership of the entrance to the Chesapeake Bay, was collecting tolls from all vessels entering the Bay and bound for Maryland ports, and this was one of the main grievances which Maryland desired to correct.

It is an interesting fact that the Maryland Commissioners were instructed by the Legislature to make the abolition of these tolls a sine qua non to the entering into any compact at all. If this was not agreed to by Virginia, they were told not to go any further in the matter. The history of the circumstances leading up to the Compact will be found in Scharf’s History of Maryland, Volume II, page 528, etc., and in the opinion of Mr. Justice Field, in the case of Wharton v. Wise in the Supreme Court of the United States, 153, U. S., 155, 38 L. Ed. 699 . It may be noted that there is one exception to the fact heretofore stated, that the Compact had nothing to do with boundaries.

Prior to its execution, the first Virginia Constitution, adopted June 29, 1776, surrendered the claims of ²⁹³ Virginia to the territories contained within her charter, included in the erection of the colonies of Maryland, Pennsylvania, North and South Carolinas, “excepting the free navigation and use of the Rivers Patomaque and Pocomoke with the property of the Virginia shores and strands bounding on either of said rivers and all improvements which have been and shall be made thereon.” This claim was not accepted by Maryland, which claimed all the property on the Virginia shores of the Potomac to the high water mark. But in the case of Maryland v. West Virginia, 217 U. S. 577 , 65 L. Ed. 888 , the Supreme Court said that by the Compact of 1785, Maryland assented to the Virginia territorial claims, by the statement in the Compact that the citizens of each state shall have full property on the shores of the Potomac and adjoining their lands, with the privilege of making and carrying out wharves and improvements. In the case of Morris v. U. S., 174 U. S. 196 , 43 L. Ed. 946 , it had been held that the grant to Lord Baltimore included the Potomac River to high water mark on the Virginia shore. But the Supreme Court in the Maryland v. West Virginia case, supra, said that the privileges reserved in the Compact were inconsistent with the former Maryland claim, that the boundary was the high water mark on the south side of the Potomac, and that Maryland, since that time, had never claimed any rights to make grants on that side of the river.

To the extent, therefore, of the difference between high water mark and low water mark on the southern shore of the Potomac, the Compact did yield Maryland’s claim to territory to Virginia. See also Washington Airport, etc. v. Smoot, Sand and Gravel Corp., Circuit Court of Appeals, 4th Cir., 44 F 2d., 342. But Virginia did not yield up her claim to the rest of the river until the boundary settlement in 1877 hereinafter referred to. In the “Opinion and Award of Arbitrators of the Maryland and Virginia Boundary Line” published in 1877, it is stated that the Commissioners representing Virginia claimed that the true interpretation of the Virginia grants was that the Potomac River should be divided between the states by a ²⁹⁴ line running in the middle of it.

The Maryland Commissioners contended that the whole river was within the limits of the grant to Lord Baltimore. It was not until 1877, therefore, that the Potomac River boundary between the two states was finally settled. Virginia instituted the meetings which resulted in the Compact by a resolution passed on September 9, 1777, appointing commissioners to meet similar commissioners from Maryland “to consider the most proper means to adjust and confirm the rights of each to the use and navigation of and jurisdiction over the Bay of the Chesapeake and Rivers Potomac and Pocomoke, in order to prevent any difference on these subjects which may interrupt the desirable harmony between the two countries which is equally the interest of both to cultivate.” The Maryland Assembly, in the same year, appointed commissioners, and a committee was appointed to draft their instructions. In these instructions is found the direction to make no compact unless Virginia relinquished the tolls she imposed at the capes.

The commissioners met, but accomplished nothing. Virginia, on June 28, 1784, again appointed commissioners. ■ Maryland responded, and it was arranged that the Commission should meet in Alexandria, but at the earnest solicitation, it is said, of General Washington, they met at Mount Vernon, on March 28, 1785. The Potomac Company, in which General Washington was very much interested, had just been chartered by Maryland and Virginia. The purpose of this Company was to make the river navigable above tide water, in order to provide a route across the mountains to the Ohio and Mississippi valleys.

A number of prominent Marylanders, as well as other Virginians, had stock in it, and it was obviously in the interest of the Company and its stockholders that there should be no dispute about the use of the Potomac between the two states. The Compact was agreed upon at the Mount Vernon meeting, and was signed by George Mason and Alexandria Henderson for Virginia, and Daniel of St. Thomas Jenifer, and Thomas Stone and Samuel Chase, for Maryland, and as we have ²⁹⁵ already stated, it was ratified by the legislatures of both states. It contained 13 sections. The first disclaims the right of Virginia to impose tolls on vessels sailing through the capes, and trading with Maryland, and agrees that the waters of Chesapeake Bay and the River Pocomoke within the limits of Virginia are forever made a common highway, free for the navigation of Maryland vessels.

In the second section, Maryland agrees that Virginia vessels may enter rivers of Maryland without the payment of any duties. The third section provides that vessels of war shall not be subject to payment of port duties. The fourth section is that vessels under certain size belonging to Marylanders or Virginians, in carrying the produce of these states, can trade free and be subject to no port charges. The fifth section states that merchant vessels navigating the Potomac River shall enter and clear at a naval office in one or both of the states, and shall be subject to tonnage in each state only in proportion to the commodities carried to or from such state.

The sixth section provides that the Potomac is to be a common highway for navigation and commerce to the citizens of both states and of the United States, and all other persons in amity with the states, trading to or from Virginia or Maryland. The seventh section gives the citizens of each state full property in the shores of the Potomac River adjoining their lands and the privilege of wharves and improvements not obstructing the navigation of the River. The right of fishing in the river, it is stated, shall be common to and equally enjoyed by the citizens of both states; such right, however, not to be exercised by the citizens of one state to the hindrance or disturbance of the fisheries on the shore of the other state, and the citizens of neither state shall have the right to fish with nets or seine on the shores of the other. The eighth section provides that all laws and regulations which may be necessary for the preservation of fish or for the performance of quarantine in the River Potomac, or for the preserving and keeping open the channel and navigation thereof, or of the River Pocomoke, within the limits of Virginia, by preventing ²⁹⁶ the throwing out ballast or giving any other obstruction thereto, shall be made with the mutual consent and approbation of both states.

The ninth section provides that lighthouses, etc., shall be erected on Chesapeake Bay between the sea and the mouths of the rivers Potomac and Pocomoke and upon the rivers Potomac and Pocomoke at the expense of both states. The tenth section, which is the one in which we are chiefly concerned in this case, reads in part as follows: “TENTH, All piracies, crimes or offenses, committed on that part of Chesapeake Bay which lies within the limits of Virginia, or that part of the said bay where the line of division from the south point of Patowmack river (now called Smith’s Point) to Watkin’s Point, near the mouth of Pocomoke river, may be doubtful, and on that part of the Pocomoke river within the limits of Virginia, or where the line of division between the two states upon the said river is doubtful, by any persons not citizens of the commonwealth of Virginia, against the citizens of Maryland, shall be tried in the court of the State of Maryland which hath legal cognizance of such offences. And all piracies, crimes and of-fences, committed on the before-mentioned parts of Chesapeake Bay and Pocomoke River, by any persons not citizens of Maryland, against any citizen of Virginia, shall • be tried in the court of the commonwealth of Virginia which hath legal cognizance of such offences. All piracies, crimes and offences, committed on the said part$ of Chesapeake Bay, and Pocomoke River, by persons not citizens of either state, against persons not citizens of either state, shall be tried in the court of the commonwealth of Virginia having legal cognizance of such of-fences.

And all piracies, crimes and offences committed on the said parts of Chesapeake Bay and Pocomoke River, by any citizen of the commonwealth of Virginia, or of the State of Maryland, either against the other, shall be tried in the court of that state of which the offender is a citizen. The jurisdiction of each state over the river Patowmack shall be exercised in the same manner as is prescribed for the before-mentioned parts of Chesapeake Bay and Poc ²⁹⁷ omoke River in every respect, except in the case of piracies, crimes and offences, committed by persons not citizens of either state, upon persons not citizens of either state, in which case the offenders shall be tried by the court of the state to which they shall first be brought; * * *” The remainder of this section has to do with trespass and civil process. The eleventh section provides for libeling all vessels in or upon the Potomac by process from the state in which the vessel entered, and seizure of the vessels and property for any violation of the commercial regulations of either state on the Potomac or Pocomoke Rivers by process from the state whose laws are offended. It also provides for the taking of any person fleeing from justice in a civil or criminal case on any part of the Chesapeake Bay or the rivers by process from each state.

The twelfth section allows citizens of one state, owning lands in the other, to transport produce free of tax. The thirteenth section states “these articles shall be read before the legislatures of Virginia and Maryland, and their approbation being obtained, shall be confirmed and ratified by a law of each state, never to be repealed or altered by either without the consent of the other.” In Chapter 1 of the Acts of 1785, ratifying the Compact, is the statement “* * * the faith and honor of this state is hereby solemnly pledged and engaged to the General Assembly of the Commonwealth of Virginia, and the government and citizens thereof, that this law shall never be repealed or altered by the legislature of this government, without the consent of the government of Virginia.” Before discussing the Compact further, it may clarify the issue to state the answer of the state to the appellant’s contention in this case now before us. The state contends that by what is known as the Black-Jenkins Award, made by arbitrators appointed by Acts of the two states and confirmed by Chapter 274 of the Acts of 1878, of the General Assembly of Maryland, and by Chapter 246 of the Acts of 1877-1878, of the General Assembly of Virginia, and consented to by Act of Congress of March 8, 1879, Chapter 196, 20 statutes at large, 481, the boundary be ²⁹⁸ tween Maryland and Virginia was definitely fixed at the low water mark on the southern shore of the Potomac River, with a straight line drawn between headlands. That by this award the reason for any jurisdiction by Virginia over the Potomac River, as provided in the tenth section of the Compact, ceased, and that section thereupon ceased to be operative on the River for the punishment of such crimes as the one before us.

That this has been recognized by both states by the legislation passed. That they passed concurrent acts relating to fishing in the Potomac River, but not as to any other offenses. That Virginia has passed no acts providing for the prosecution of the offenses set out in the tenth article of the' Compact. That Maryland immediately passed Chapter 485 of the Acts of 1880, heretofore referred to as Section 681 of Article 27, relating to offenses on steamboats, and by Chapter 487 of the Acts of 1908, now codified as Section 161 of Article 75 of the Code, the Maryland legislature provided that the jurisdiction of every county, bounded at any point by navigable waters, should extend from the shore to the inside of the channel, “except where such waters adjoin neighboring states, in which case the jurisdiction of said counties shall continue to the ultimate limits of the state at the place in question.” That this last clause refers to the Potomac.

In 1829, in a case involving alleged damage by the Chesapeake and Ohio Canal Co., successor to the Potomac Company, to certain land of the plaintiff along the Potomac, located partly in the District of Columbia and partly in Maryland, Chancellor Bland, in a lengthy opinion, took occasion to discuss the scope and object of the Compact of 1785. The question before him was whether the Compact applied to the Potomac River above tidewater. He determined that it did not, and in the course of his discussion said of the tenth section. “The tenth establishes certain regulations respecting piracies, crimes, and offenses, and for any violence, injury, or trespass, to or upon the property, or lands of the other adjacent to the said bay or river-, etc. Piracy is a name given to no of ²⁹⁹ f ense committed within the body of a county; but only to crimes upon bays and rivers, or any tide-water, considered as an arm of the sea, not within the body of a county; but originally and properly within the jurisdiction of the admiralty. This provision respecting piracy, therefore, clearly confines the whole article to acts done on tidewater, or abroad, and not within the body of any county, and of which the courts of common law could not otherwise have jurisdiction.” Binney’s Case 2, Bland 99 at page 126.

Chancellor Bland’s discussion of the Compact, including the above quotation, was cited by this court in the case of Middlekauff v. LeCompte, 149 Md. 621 , 132 A. 48 . In the last case the court, speaking through Chief Judge Bond, also discussed the Compact, and decided that the eighth section, which provided for the making of concurrent laws and regulations for the preservation of fish in the Potomac, had no application to fishing in the upper unnavigable portion of the river. It may be noted, in connection with the statement that the common law had no jurisdiction over tidewater not within the body of any county, that since the adoption of the Federal Constitution, the Congress has confined the Federal jurisdiction over crimes committed on water to such as are committed “out of the jurisdiction of any particular state.” See Ex parte Ballinger, D. C. 88, Fed. 781; United States v. Bevans, 16 U. S. 336 , 4 L. Ed. 404 (opinion by Chief Justice Marshall) ; St. Clair v. United States, 154 U. S. 134 , 38 L. Ed. 936 . In 1856, it was held that under the eighth article of the Compact no act of the General Assembly of Maryland could have any operation in the Potomac River, affecting the fishing therein, unless such act had been assented to by the State of Virginia.

State v. Hoofman, 9 Md. 21 . In 1885, Governor Lloyd asked I. Nevitt Steele, a distinguished member of the Maryland Bar, for an opinion on the status of the Compact. He received from Mr. Steele, a thorough and comprehensive discussion of the Compact, and of the various acts of assembly passed up to that time. The question he was asked was whether, after the lapse of ³⁰⁰ a century, and after the concurrent legislation passed with respect to fishing, the Compact had been superseded by the Constitution of the United States.

Mr. Steele held that it was in full force and effect. He notes that the Compact has been upheld in Binney’s Case, supra, and in State v. Hoof man, supra, and also by Virginia in the case of Hendricks v. Commonwealth, 75 Va. 934 , and by the Supreme Court of the United States in the case of Georgetown v. the Alexandria Canal Co., 12 Peters 91 , 9 L. Ed. 1012 , and Potomac Steamboat Co. v. Upper Steamboat Company, 109 U. S. 672 , 27 L. Ed. 1070 . He also cites the fact that the Maryland Act of 1878, Chap. 274, by which the Black-Jenkins Boundary Award was accepted, contains the proviso that neither of the states nor the citizens thereof should thereby “be deprived of any of the rights and privileges enumerated and set forth in the Compact between them, entered into in the year 1785, but that the same shall remain to and be enjoyed by the said states and the citizens thereof forever.” Mr. Steele then passes to the question upon which he states he understands the opinion is desired, namely, the right of oyster fishery by the states and their respective citizens in the waters of the Potomac River and of Pocomoke Sound and