| promoting the "free intercourse of their citizens," particularly where, as in the case of the
Compact of 1785. Congress had not objected. Id. at 167. The Court also noted that both
Maryland and Virginia had historically recognized the Compact to be "of obligatory force" upon
them. Id. at 168. The Court found that, although the Constitution superseded those portions of
the Compact concerning the regulation of interstate commerce, it did not forbid agreements or
compacts between the states that were already in existence at the time the Constitution took
effect. Id. at 171.
The Court further concluded that Congress' approval of the Black-Jerkins Award in 1879
served independently to validate the Compact of 1785. Id. at 172-73. The Court pointed out
that, in calling for binding arbitration in 1874, both Maryland and Virginia agreed that nothing in
the boundary determination would deprive either State or its citizens "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 enforced by the said states and the citizens thereof
forever." Id. at 172 (quoting 1874 Va. Acts c. 135, 1874 Md. Acts c. 247). The Court held that
Congress' ratification of the Black-Jerkins Award, "taken in connection with the conditions
upon which the award was authorized, operated as an approval of the original compact, and of its
continuance in force under the sanction of Congress." Id. at 173.
One other point in Wharton v. Wise warrants mention. Maryland's Attorney General
explained in Maryland's brief that the purpose of Article VII, with respect to the common right
of fishing, was to give both States equal rights in the Potomac River:
The compact made between the two States to preserve their
friendship and to promote their mutual prosperity should receive
not a technical, but a fair and reasonable construction. Keeping
this rule in view, it would seem to be clear from the language of
the compact underlined above [referring to the common right of
35
|
