USA > West Virginia > History of West Virginia > Part 19
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47
The case of Handly vs. Anthony, then, must stand upon other reasons of the eminent judge who deliv- ered the opinion in the cause. Two special reasons are assigned and one of general policy. First: " When the State of Virginia made the Ohio the boundary of States, she must have intended the great river Ohio and not a narrow bayou into which its waters pass." Second : " It is a fact of no inconsiderable importance in this case that the inhabitants of this land"-the land separated by the narrow bayou aforesaid-" have uni- formly considered themselves, and have been uniformly considered by Kentucky and Indiana, as belonging to the last mentioned State. No diversity of opinion appears to have existed on this point. The water on the northwestern side of the land in controversy seems not to have been spoken of as a part of the river, but as a
.
زا
295
HISTORY OF WEST VIRGINIA.
bayou. The people of the vicinage who viewed the river in all its changes seem not to have considered this land as being an island of the Ohio and as a part of Ken- tucky, but as lying on the northwestern side of the Ohio and being a part of Indiana." This surely makes a special case, sufficient upon the facts,-that "the bayou was never spoken of as a part of the river," and that " the people of the vicinage who saw the river in all its changes never considered the land as an island of the Ohio," " but as lying on the northwestern side of the Ohio and being a part of Indiana,"-to give the ver- dict to the defendant. Then, so far as the language of the court affects the question of boundary between the States, it rests upon this language of the judge. " The case is certainly not without its difficulties ; but in great questions which concern the boundaries of States, where great national boundaries are established in gen- eral terms, with a view to public convenience and the avoidance of controversy, we think the great object, where it can be distinctly perceived, ought not to be defeated by those technical perplexities which may sometimes influence contracts between individuals." But it is remarkable that the clear and logical 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 making in the order of his argument, inverted here, the concluding force of it to depend upon 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 proposi- tion 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."
296
HISTORY OF WEST VIRGINIA.
· This brings us to one of the objects proposed-the settlement of a boundary.
In 1785, the boundary between Virginia and Penn- sylvania was definitely run and fixed upon the facts and principles settled by the commissioners in 1779. In 1786, the compact boundary and jurisdiction between Maryland and Virginia was ratified. On the first Wed- nesday in March, 1789, the Constitution of the United States commenced its operation. In 1803, the boundary between Virginia and Tennessee, which had been run the previous year by joint commissioners, was adopted and confirmed. The two former cases preceded the adoption of the Constitution of the Union. The case of Kentucky is the case provided for by the third sec- tion of the fourth article of that instrument, and which provides for the erection of a new State within the jurisdiction of another State. In the Tennessee case, the Commissioners were authorized to settle one fact from other fixed facts, which fact had been differently asserted by the surveys of two different surveyors, Walker and Henderson. This was a commission merely to ascertain the boundary, as in the Pennsylvania case, to ascertain the degrees of longitude. As between Virginia and Ohio, the former claims " the water, the bed and the banks ;" the latter, since the decision of Handly vs. Anthony, claims to low water mark. Between these limits is to be found the true grounds of compro- mise ; beyond or without them would be the ground of actual cession. If compromise was desired, here was the legitimate range for its exercise. Beyond this neither could be expected to yield, and how far it is competent for a State, by any "treaty, alliance, confed- eration," (Con. U. S. A., I., s. 10, p. 1) or compact, to
297
HISTORY OF WEST VIRGINIA.
cede territory manifestly within its borders, except in the cases provided for in the third section of the fourth article, and the seventeenth paragraph of the eighth section of the first article of the Constitution of the United States, admits of serious inquiry. (See Vattel, B. I., c. XXI., sec. 260, et seq.) If the power can be ex- ercised over half of the river, why not over all-why not the southern bank-why not to the tops of the mountains ? Surely this authority is incompetent unless it is under that joint power which provides for the entire absorption of one State by another. But between these limits there was room for compromise, upon legitimate grounds, in a spirit of comity. The distri- bution of jurisdiction between the English Admiralty and Common Law Courts suggested the line for com- promise, and the divisum imperium with certain modi- fications, was proposed by Virginia through her Com- missioners. The actual water line, the edge where the ground and the water meet, within the limits men- tioned, affording the most certain, definite and visible line, and the one at all times the most easily suscep- tible of proof.
The interests of Virginia and a general policy with which she is identified throughout every fibre of her social and political being are involved in any further cession, or in the settlement of boundary or jurisdiction upon other terms than those proposed by Virginia in . an earnest desire for adjustment. The Ohio river is the highway for the immediate carrying trade of six great States situated on its waters, and under the navigation laws of the United States for the whole Union, and, by treaties, perhaps, for the commerce of the world. In the wide range claimed for the authority of the United
298
HISTORY OF WEST VIRGINIA.
States over the navigable waters and highways of the Union (9' Wheat., I to 240) it is of great importance that Virginia should preserve to herself, to her people, and to the citizens generally of the Union all the pro- tection and rights which ever and now belong to her by virtue of the possession and ownership of the eminent domain and her reservations out of it. The rights which belong to her by virtue of sovereignty, positive and reserved, are certain, definite and unimpeachable, so long as the Constitution of this Union shall remain a monument of the wisdom of the past and a defence for the protection of the future. Any further cession may seriously and injuriously affect the reserved rights guaranteed to Virginia and the citizens of the Union (Va. Act, 18th Dec., 1789). Any further cession would be a cession of sovereignty ; and to the extent that the constitutional limits of Virginia recede, the constitutional jurisdiction of Ohio encroaches (Vattel, B. 2, c. VIII., sec. 84), unless restrained by a compact, paramount and anterior to the Constitution of that State; and the area yielded would only become the arena of a fiercer strife, made malignant by the frequency and the cause of col- lision. Any cession of territory is therefore inadmissi- ble, as alike repugnant to a sacred regard for the Con- stitution of the Union, and forbid by the interests and policy of the Commonwealth, her reserved and recog- · nized rights as aforesaid, the harmony of the States and a just determination to maintain the compromises on which the great Republic was founded.
This leads to the questions of jurisdiction. These are two : First-Jurisdiction for use and navigation. Sec- ond-Jurisdiction of a judicial or ministerial nature.
Jurisdiction, like the term authority, has no definite
299
HISTORY OF WEST VIRGINIA.
meaning. Its precise import must always be ascer- tained from the subject matter, the context and the relation of parties (Vattel, B. 2, c. XVII., 280). The term jurisdiction is as ubiquitous in its meaning as the complex and diversified institutions of political society. Corporate bodies, aldermen, justices, judges, courts, special commissions, governors, legislatures, States, have their jurisdictions. Then what is the jurisdiction
desired by Ohio for use and navigation ? And what more can Virginia give than is taken for the General Government by the decision of the Supreme Court of the United States in the case of Gibbons vs. Ogden (9 Wheat., 189). This was one of those cases command- ing the first abilities of the country and requiring the maturest decision of the court, and may be looked upon as the settled law of commerce and navigation between the States. Judge Marshall there says: "Congress shall have power to regulate commerce with foreign nations and among the several States and with the In- dian tribes. The subject to be regarded is commerce ; and our Constitution being, as was aptly said at the bar, one of enumeration and not of definition, to ascertain the extent of the power, it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a gen- eral term, applicable to many objects, to one of its sig- nifications. Commerce, undoubtedly, is traffic, but it is something more ; it is intercourse. It describes the commercial intercourse between nations and parts of nations, in all its branches, and is regulated by pre-
300
HISTORY OF WEST VIRGINIA.
scribed rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations which shall exclude all laws concerning navigation, which shall be silent on the ad- mission of the vessels of the one nation into the ports of the other." From a principle so broadly laid down, what power may not be deduced ; and as a logical re- sult, the States are excluded from the exercise of any control over the question of navigation, for on page 225. the Court says: "The history of the times will therefore sustain the opinion that the grant of power over commerce, if intended to be commensurate with evils existing and the purpose of remedying those evils, could be only commensurate with the power of the States over the subject ;" again, page 227, " The power to regu- late commerce here meant to be granted was that power to regulate commerce which previously existed in the States. But what was that power? The States were unquestionably supreme, and each possessed that power over commerce which is acknowledged to reside in every sovereign State." The very limited power reserved to the States may be seen at page 237 of the opinion of the Court. The proposition of the Virginia Com- missioners embraced these reserved rights as fully as the same was reserved to herself and granted to others by the seventh clause of the fifth section of the Act of December 18, 1789; a compact ratified by Congress and preexisting the Constitution of Kentucky and Ohio, and controlling their provisions or operation pro hac vice. The jurisdiction for commerce and navigation, then, as aforesaid, belongs under this decision to the General Government. These powers are so unlimited,
€
301
HISTORY OF WEST VIRGINIA.
that no further action of the States can extend them; they are so supreme that no action of the States can limit them.
Yet this authority, supreme as it is, cannot interfere with those rights of private property which spring out of the Constitution of the State or are inherent in the eminent domain under our constitutional system. These, as has been stated, there is a social, moral and political necessity for maintaining under the exclusive control of the law of their domicil. A judge of Vir- ginia has decreed that the protection of property, while navigating the Ohio or being carried thereon, depended upon international law, and cited the Oregon treaty as a case in point, overlooking the fact that these States are not foreign States in their commercial rela- tions, and if they were, the important principle of international law-and among the States of constitu- tional jurisdiction-intervenes, that the laws or consti- tution of the foreign State shall in no wise be infringed, unless by some compact of paramount obligation. But this security will be found to rest with more certainty in the act for the erection of Kentucky into a State, in which it is provided, "That the use and navigation of the river Ohio, so far as the territory of the proposed State, or the territory which shall remain within the limits of this commonwealth lies thereon, shall be free and common to the citizens of the United States, and the respective jurisdictions of this common- wealth and the proposed State on the river aforesaid, shall be concurrent only with the States which may possess the opposite shores of the said river." (7th clause of the fifth section, Act of December 18, 1789.) If Virginia had made a general grant of territory to
302
HISTORY OF WEST VIRGINIA.
Kentucky, the sovereignty over the river would have passed with that grant; there would have been no limitation upon the authority of Kentucky, except that contained in the Constitution of the United States. The Constitution of Kentucky, its amendment or altera- tion might have made changes in the laws of property which might have seriously affected the rights of per- sons using and navigating the Ohio. But this clause is not a grant to Kentucky; it is a limitation of authority; it is the reservation of a right for using and navigating the Ohio-a right reserved free and common to the citizens of the United States. It is a right which Kentucky-which no other power-can limit, restrain or annul-a right secured compact and guaranteed under an express provision of the Constitution of the Union-a right solemnly sanctioned. before Ohio had a political existence, by all who could be parties to the compact, and by the power which had authority to bind. Virginia, Kentucky and Congress, representing the sovereignty and dominion of the Northwestern Territory, were the parties to the contract, and made a compact which, without the consent of each, can only be repealed by revolution. This act, possessing the highest obligation and giving the citizens of the Union " the free and common use and navigation " of the Ohio, independent of and above the constitutional jurisdiction of the State of Ohio, suggested itself as the most solemn form of guaranty which could be pro- posed on this branch of the subjects submitted for adjustment. This formed a proposition on the part of Virginia. It was not accepted, but still remains the compact and the law of the case. But what were the rights reserved? Virginia took the measure of her
HISTORY OF WEST VIRGINIA. 303
own citizen and his rights as the description of the rights reserved to her people "in free and common use." The right was reserved to use and navigate the Ohio with persons and property as defined and recog- nized by the Constitution and laws of Virginia. The right of using and navigating that stream, as it belonged to Virginia previous to the admission of Kentucky and Ohio, is the definition of the authority reserved over the river.
But what is the meaning of the latter part of this exception to the grant? It has been seen that the word jurisdiction is a generic term to be defined by the context, the subject-matter and the relation of parties. Taking these indicia of intent, "and the use and navigation of the Ohio" afford the only ground of construction, and those resulting privileges and easements necessary to the proper execution of the main purposes of the grant are alone included. There is no other subject-matter upon which the residue of the sentence can operate. It must be confined to the use and navigation, which is the subject-matter of the clause. That it did not mean jurisdiction in the broad- est sense in which that term can apply to States, is evident from the fact that it never has been claimed ; that it is a constitutional solecism, involving the contra- diction of opposing principles of the organic law of two States operating over the same territory at the same time. It cannot be a legislative jurisdiction, sub- jecting the same territory to hostile and conflicting changes of legislative policy. It cannot be judicial jurisdiction, subjecting individuals to distinct and widely-differing systems of criminal police. It cannot be general ministerial jurisdiction, for this, as well as a
19
1
304
HISTORY OF WEST VIRGINIA.
judicial jurisdiction, involves, more or less, the fact of, and necessity for, legislative jurisdiction, which, again, requires its constitutional foundation to rest upon. The first cannot exist, because it is a violation of well- settled constitutional principles. The latter cannot exist, because they can have no foundation to rest upon except the first. In any event, to create concur- rent powers, the authority must be express and defi- nite, and they must be such as can be 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 constitu- tional 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 lan- guage there is a nullity of power.
In the conference between the States, boundary could not be settled but by yielding all which one of the par- ties asked. Upon the question of jurisdiction, the same party pressed her claim to an exclusive authority this side, even the extreme limits of her pretensions to boundary ; in each instance claiming everything that was doubtful and yielding nothing that was certain. No compromise 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 experi- ment 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.
305
HISTORY OF WEST VIRGINIA.
If, however, it should prove productive of mischief and discord, the remedy will be in the rightful power, and the State which can be 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-preser- vation 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 citi- zens of all the States without distinction. And the declara- tion of Congress in the ordinance of 1787, declaring the waters within the Northwestern Territory navigable highways, the construction of the federal constitution by the Supreme Court in the case of Gibbons vs. Ogden, and the original, reserved and conventional rights as declared by the Virginia act of 18th of December, 1879, and sanctioned by Congress, are consistent and har- monious, and are of paramount obligation to all subse- quent grants and constitutions of States. These acts give easements, franchises and privileges on these im- portant highways, and at the same time protect rights 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 dedicated 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 rela- tions of the States of Virginia and Ohio, growing out of the question of boundary and jurisdiction, which must
306
HISTORY OF WEST VIRGINIA.
necessarily lead to such deplorable consequences; and should they ever come, they must be traced to causes deeper, more dangerous and more widely extended. The aggressive spirit which breaks through solemn sanctions of law, to assail one species of property, dif- fers but in degree from that 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.
CHAPTER XIX.
INSURRECTION AT HARPER'S FERRY.
The Location-Gathering of John Brown's Confederates-The Armory and Arsenal in Possession of the Insurgents-Arrival of the Military-The Attack and Capture-Loss of Life on either Side-The Trial and Conviction-Exe- cution of the Sentence.
WHERE tower in solemn grandeur the lofty crests of Loudoun, Bolivar and Maryland Heights, standing like grim sentinels, guarding the spot where the myth- ical Water God mingles the crystal tide of the Shenan- doah with the blue waters of the Potomac-there is Harper's Ferry-the most eastern point of land in West Virginia. The location itself forms an important page in nature's great book-the physical history of the globe. Far back in the dim past, during the De- vonian Age, when the slimy summits of the Blue Ridge and Alleghenies rose above the surface of a shoreless ocean, they held between them a vast inland sea, for that the present Shenandoah valley is the basin of an ancient sea or lake there is every reason to believe. Stretching away from the present site of Staunton on the south to Chambersburg on the north spread one vast sheet of water. Filling to the top of the basin these surging waters broke over the eastern ridge, where Harper's Ferry now stands. Here for a thou- sand years foamed and dashed a raging Niagara until the ancient wall of gray quartz was cut away. Thus was drained the sea and thus formed the chasm through which the Potomac now dashes along.
i
(307)
... . . +
308
HISTORY OF WEST VIRGINIA.
The event of greatest interest, the one which has obtained for the place a world-wide celebrity, is that known as the John Brown Insurrection. It was the rumbling of the distant thunder, the muttering of the terrible storm of civil war, with its magnitude, destruc- tiveness, and results, for a parallel of which the student of history searches the records of the Old World in vain. The intelligence that went out from Harper's Ferry on the 17th of October, 1859, sent a thrill of terror throughout Virginia, and astonished the whole nation.
May 8, 1858, a conference was held at Chatham, Canada, composed of numerous representatives from various parts of the United States and British America, the object being to devise the best plans for bringing about the consummation of their cherished hope-the abolition of slavery in the South. The moving spirit in that body was John Brown, or "Old Ossawattamie Brown," so called because of his participation in a battle fought at Ossawattamie, Kansas, during the trouble in that State. What the action of that con- vention was never has and never will be known, but the inference may be drawn from the immediate action of the principal leader.
Shortly after, Brown and his two sons, Oliver and Watson, appeared in the vicinity of Harper's Ferry, and under the assumed name of Anderson, leased from Dr. Kennedy, of Sharpsburg, a farm in Maryland, within a few miles of the Ferry. Here a considerable quantity of arms and ammunition, shipped from an un- known source, was collected, and a force of twenty- two confederates joined him, of whom seventeen were white and five colored. At length the day for action
9
STREET IN HARPERS FERRY
"FROM BOLIVAR HEIGHTS
VIEWS OF HARPER'S FERRY.
From " Picturesque on the B. & O. R. R."
THE MARYLAND SIBE ..
3110/4
HISTORY OF WEST VIRGINIA.
arrived, and Brown closed the instructions to his men by saying : "Do not take the life of any one if you can avoid it ; but if it be necessary to take life in order to save your own, then make sure work of it."
The hour was 10 P. M., October 16th, 1859, when William Williamson, the Arsenal guard on the Poto- mac bridge, while walking his beat, was seized and made prisoner. The guard thus removed, Brown and his men quietly took possession of the Armory build- ings, in which were stored a large quantity of arms and ammunition. About one o'clock A. M. several of the insurgents went to the dwelling of Lewis Washington, an extensive farmer and slave owner, and, arousing him, made him prisoner, and after securing his arms and carriage and proclaiming freedom to his slaves, carried him to the Arsenal. A similar visit was paid to the residence of John Allstadt, another farmer, and he, together with his son, sixteen years of age, was brought in prisoner. These interrogated Brown as to the object of his proceedings, to which he replied, "To free the slaves," and when asked by whose authority, the reply was, " By the authority of God Almighty."
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.