22 The Compact of 1785 of the decision seemed almost to give to the Compact the force of constitutional law, or at least to place it on a plane somewhere above that of statutory law. Yet in a case such as this, involving a Maryland citizen and a purely local situation, the Compact might have been construed as no more than ch. 1 of 1785. As such, it had engaged Maryland to pass Potomac River fishing laws only with the mutual consent and approbation of Virginia, but had not attempted to say that any law not so passed should be without effect. And, if the Compact were construed as simply ch. 1 of 1785, it was as open to amendment or repeal (even by necessary implication) as any other legislative act. The Court said nothing in its opinion about the power, or lack of power, of the State of Maryland to change the Compact. Unless it was prepared to give to the Compact something more than the legal force of an act of the Mary land Legislature, and that is all the legal sanction ever placed behind it in Maryland, there was no compelling reason for giving it a controlling power over a subsequent enactment. Also, that controlling power was on a techni cality; Virginia as a matter of fact had passed a similar statute; the only omission was that the indictment had not specifically averred that fact. However, the rule of the case was definite: an indictment for a violation of a fishing law must aver that Virginia has assented to the law. One other interesting question can be raised about the Hoofman case. The law under which he was indicted was aimed at the protection of fish going to shoal water to spawn. Some of the fish actually go up to fresh water, above the ebb and flow of the tide, and they may be caught there. Logically, therefore, the law must have covered parts of the Potomac above tidewater, though Hoofman himself was violating the law in tidewater (Charles County). Binney's case had earlier established the rule that the Compact relates only to tidewater por- |
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