| fishing in Article VII], that it was intended to place the two States
and their citizens upon a footing of entire and perfect equality as to
the right of fishing in the river. "`
Maryland explained that the Compact was negotiated at a time when the boundary between the
States was disputed, so that the fact that the boundary was later resolved by arbitration did not
alter the States' respective rights and obligations under Article VII:
To construe the compact correctly we must go back to the time
when it was made. Then the boundary between the two States was
unsettled and in dispute, and the claims of the State[s] were widely
divergent. Therefore, the compact as to this right of fishery was
not, by its terms, a grant of right by Maryland to Virginia, or by
Virginia to Maryland, but an agreement by which common and
equal rights of fishery were given and secured as well to Maryland
as to Virginia. Could Maryland, at that time, while the territorial
limits and jurisdiction of the two States were unsettled, and
controverted, have reasonably claimed in the face of this language
of the compact that she had a wider and more comprehensive right
of fishing in the river than Virginia had?
And if she could not then have fairly and properly made such
claim, she cannot make it now, although her boundary is now
settled, and the bed of the Potomac is now decided to be within her
143
territory.
Maryland v. West Virginia
West Virginia became a State out of a portion of the territory of Virginia on June 20,
1863. See generally Virginia v. West Virginia, 220 U.S. 1, 26 (1911) and Virginia v. West
Virginia, 206 U.S. 290, 315 (1907) (providing history of the formation of the State of West
Virginia). West Virginia was not a party to the arbitration resulting in the Black-Jenkins Award
~~` Attorney General of Maryland, Brief of Appellant at 23, Wharton v. Wise, No. 1054
(U.S. 1893). This portion of Maryland's brief was quoted verbatim from a legal opinion given in
December 1885 by I. Nevett Steele, Esq., to Governor Lloyd of Maryland. Id. at 5.
113 Id. at 23-24.
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