Front Page Titles (by Subject) RESOLUTIONS TOUCHING THE NAVIGATION AND JURISDICTION OF THE POTOMAC. mad. mss. - The Writings, vol. 2 (1783-1787)
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RESOLUTIONS TOUCHING THE NAVIGATION AND JURISDICTION OF THE POTOMAC. mad. mss. - James Madison, The Writings, vol. 2 (1783-1787) 
The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 2.
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RESOLUTIONS TOUCHING THE NAVIGATION AND JURISDICTION OF THE POTOMAC.mad. mss.
December 28th 1784.
Resolved that the Commissioners or any two of them appointed on the 28th. day of June last to concert with commissioners on the part of Maryland, regulations touching the navigation and jurisdiction of the Potowmac, be further authorized with the said commissioners in representing to the State of Pennsylvania, that it is in contemplation of the two States to promote the clearing and extending the navigation of Potowmac from tide-water upwards as far as the same may be found practicable; to open a convenient road from the head of such navigation to the waters running into the Ohio; and to render these waters navigable as far as may be necessary and proper: that said work will require great expense which may not be repaid, unless a free use be secured to the said States & their citizens, of the waters of the Ohio and its branches, so far as the same lie within the limits of Pennsylvania: that as essential advantages will accrue from such works to a considerable portion of the said State, it is thought reasonable that the Legislature thereof should by some previous act engage that for the encouragement of the said works all articles of produce or merchandize which may be conveyed to or from either of the said two states, through either of the said rivers within the limits of Pennsylvania, to or from any place without the said limits, shall pass throughout free from all duties or tolls whatsoever, other than such tolls as may be established and be necessary for reimbursing expenses incurred by the State or its Citizens in clearing, or for defraying the expense of preserving the navigation of the said rivers: and that no articles imported into the State of Pennsylvania through the channel or channels or any part thereof to be opened as aforesaid and vended or used within the said State, shall be subject to any duties or imposts other than such articles would be subject to if imported into the said State thro’ any other channel whatsoever: and it is further resolved that in case a joint representation in behalf of this State and of Maryland shall be rendered by circumstances unattainable, the said Commissis or any two of them may of themselves make such representations on the subject as will in such event become proper; and that in either event they report their proceedings to the next General assembly.
Resolved that a copy of the above Resolutions be transmitted forthwith by the Executive to the State of Maryland.1
TO THOMAS JEFFERSON.mad. mss.
Richmond, Jany. 9th, 1785.
My last was dated in Philada., Octr. 17. I reached this place on the 14th. day after that fixed for the meeting of the Assembly and was in time for the commencement of business. Yesterday put an end to the tedious Session. According to my promise I subjoin a brief review of its most material proceedings.
An Act for the establisht. of Courts of Assize.This act was carried through the House of Delegates against much secret repugnance, but without any direct and open opposition. It luckily happened that the latent opposition wanted both a mouth and a head. 1Mr. Henry had been previously elected Governor and was gone for his family. From his conversation since I surmise that his presence might have been fatal. The Act is formed precisely on the English pattern, and is nearly a transcript from the bill originally penned in 1776 by Mr. Pendleton except that writs sent blank from the Clk. of Genl. Ct. are to issue in the district, but retd. to Gl. Ct. In the Senate it became a consideration whether the Assize Courts ought not to be turned into so many Courts of independent and complete jurisdiction, and admitting an appeal only to the Court of Appeals. If the fear of endangering the bill had not checked the experiment, such a proposition would probably have been sent down to the House of Delegates, where it would have been better relished by many than the Assize plan. The objections made to the latter were that as it required the issues to be made up and the judgments to be awarded in the General Court it was but a partial relief to suitors, and might render the service of double setts of Lawyers necessary. The friends of the plan thought these inconveniences as far as they were real, outweighed by the superior wisdom & uniformity of decisions incident to the plan; not to mention the difference in the frequency of appeals incident to the different plans. In order to leave as few handles as possible for cavil the bill omitted all the little regulations which would follow of course, and will therefore need a supplement. To give time for this provision as well as by way of collecting the mind of the public, the commencement of the law is made posterior to the next Session of Assembly. The places fixed for the Assize Courts are Northumberland Court House, Williamsbg., Accomack Ct. House, Suffolk, Richmond, Petersburg, Brunswick Ct. House, King & Queen Ct. House, Prince Edwd. Ct. H., Bedford Ct H., Montgomery & Washington Ct Hs alternately, Staunton, Charlottesville, Fredericksbg, Dumfries, Winchester, and Monongalia Ct H. Besides the judicial advantages hoped from this innovation, we consider it as a means of reconciling to our Govt. the discontented extremities of the State.
An Act for opening and extending the navigation of Potowmac river.The subject of clearing these great rivers was brought forward early in the Session under the auspices of General Washington, who had written an interesting private letter on it to Govr. Harrison which the latter communicated to the Genl. Assembly. The conversation of the Genl. during a visit paid to Richmond in the course of the Session, still further impressed the magnitude of the object on sundry members. Shortly after his departure, a joint memorial from a number of Citizens of Va & Maryland, interested in the Potowmac,An Act for opening and extending the navigation of James river. was presented to the Assembly, stating the practicability and importance of the work, & praying for an act of incorporation, and grant of perpetual toll to the Undertakers of it. A bill had been prepared at the same meeting which produced the Memorial, and was transmitted to Richmond at the same time. A like memorial & bill went to Annapolis where the Legislature of Maryland were sitting. The Assembly here lent a ready ear to the project, but a difficulty arose from the height of the tolls proposed, the danger of destroying the uniformity essential in the proceedings of the two States, by altering them,—and the scarcity of time for negociating with Maryland a bill satisfactory to both States. Short as the time was however, the attempt was decided on, and the negociation committed to Genl. Washington himself. Genl. Gates who happened to be in the way and Col. Blackburn were associated with him. The latter did not act, the two former pushed immediately to Annapolis, where the sickness of Genl. Gates threw the whole agency on Genl. Washington. By his exertions in concert with Committees of the two branches of the Legislature, an amendment of the plan was digested in a few days, passed thro’ both houses in one day with nine dissenting voices only, and despatched for Richmond, where it arrived just in time for the close of the Session. A corresponding Act was immediately introduced, and passed without opposition. The scheme declares that the subscribers shall be an incorporated body, that there shall be 500 Shares, amounting to about 220,000 dollars, of which the States of Va & Maryd are each to take 50 shares, that the tolls shall be collected in three portions, at the three principal falls, and with the works vest as real estate in the members of the Company, and that the works shall be begun within one year, and finished within ten years, under the penalty of entire forfeiture.
Previous to the receipt of the Act from Annapolis a bill on a different plan had been brought in and proceeded on for clearing James River. It proposed that subscriptions should be taken by Trustees and under their management solemnly appropriated to the object in view, that they should be regarded as a loan to the State, should bear an interest of 10 per ct., and should entitle the subscriber to the double of the principal remaining undischarged at the end of a moderate period; and that the tolls to be collected should stand inviolably pledged for both principal & interest. It was thought better for the public to present this exuberant harvest to the subscribers than to grant them a perpetuity in the tolls. In the case of the Potowmac which depended on another authority as well as our own, we were less at liberty to consider what wd be best in itself. Exuberant however as the harvest appeared, it was pronounced by good judges an inadequate bait for subscriptions even from those otherwise interested in the work, and on the arrival and acceptance of the Potowmac plan, it was found advisable to pass a similar one in favor of James River. The circumstantial variations in the latter are 1. the sum to be aimed at in the first instance is 100,000 Dollars only. 2. the shares which are the same in number with those of Potowmac, are reduced to 200 dollrs each and the number of public shares raised to 100. 3. the tolls are reduced to ½ of the aggregate of the Potowmac tolls. 4. in case the falls at this place where alone tolls are to be paid, shall be first opened, the Company are permitted to receive the tolls immediately, and continue to do so till the lapse of ten years, within which the whole river is to be made navigable. 5. a right of pre-emption is reserved to the public on all transfers of shares. These acts are very lengthy, and having passed in all the precipitancy which marks the concluding stages of a Session, abound I fear with inaccuracies.
In addition to these acts joint resolutions have passed the Legislatures of Maryd & Va for clearing a road from the head of the Potowmac navigation to Cheat river or if necessary to Monongalia, & 3333⅓ Dollars are voted for the work by each State. Pennsylva is also to be applied to by the Governors of the two States for leave to clear a road thro’ her jurisdiction if it should be found necessary, from Potowmac to Yohogania; to which the Assembly here have added a proposition to unite with Maryland in representing to Pena the advantages which will accrue to a part of her citizens from opening the proposed communication with the Sea, and the reasonableness of her securing to those who are to be at the expence, the use of her waters, as a thoroughfare to & from the Country beyond her limits, free from all imposts & restrictions whatever, and as a channel of trade with her citizens free from greater imposts than may be levied on any other channel of importation. This Resolution did not pass till it was too late to refer it to Genl Washington’s negociations with Maryland. It now makes a part of the task allotted to the Coissrs who are to settle with Maryd the jurisdiction & navigation of Potowmac below tide water. By another Resolution of this State, persons are to be forthwith appd by the Executive to survey the upper parts of Jas river, the country thro’ which a road must pass to the navigable waters of New River, and these waters down to the Ohio. I am told by a member of the Assembly, who seems to be well acquainted both with the intermediate ground and with the Western waters in question, that a road of 25 or 30 miles in length will link these waters with Js river, and will strike a branch of the former which yields a fine navigation, and falls into the main stream of the Kenhawa below the only obstructions lying in this river down to the Ohio. If these be facts James River will have a great superiority over Potowmac, the road from which to Cheat river is indeed computed by Genl Washington at 20 miles only, but he thinks the expence of making the latter navigable will require a continuation of the road to Monongalia, which will lengthen it to 40 miles. The road to Yohogania is computed by the Genl at 30 miles.
By another resolution, Coissrs. are to be appd. to survey the ground for a canal between the waters of Elizabeth river and those of N. Carolina, and in case the best course for such a canal shall require the concurrence of that State, to concert a joint plan and report the same to the next Session of Assembly. Besides the trade which will flow thro’ this channel from North Carolina to Norfolk the large district of Virginia watered by the Roanoak will be doubled in its value by it.
An Act vesting in G. Washington a certain interest in the Companies for opening James & Potowmac rivers.The Treasurer is by this act directed to subscribe 50 shares in the Potowmac & 100 shares in the James River Companies which shall vest in Genl. Washington & his heirs. This mode of adding some substantial to the many honorary rewards bestowed on him was deemed least injurious to his delicacy, as well as least dangerous as a precedent. It was substituted in place of a direct pension urged on the House by the indiscreet zeal of some of his friends. Though it will not be an equivalent succour in all respects it will save the General from subscriptions which would have oppressed his finances; and if the schemes be executed within the period fixed, may yield a revenue for some years before the term of his [sic]. At all events it will demonstrate the grateful wishes of his Country and will promote the object which he has so much at heart. The earnestness with which he espouses the undertaking is hardly to be described, and shews that a mind like his, capable of great views & which has long been occupied with them, cannot bear a vacancy; and surely he could not have chosen an occupation more worthy of succeeding to that of establishing the political rights of his Country, than the patronage of works for the extensive & lasting improvement of its natural advantages; works which will double the value of half the lands within the Commonwealth, will extend its commerce, link with its interests those of the Western States, and lessen the emigration of its Citizens by enhancing the profitableness of situations which they now desert in search of better.
An Act to discharge the people of this Commonwealth from one half of the tax for the year 1775 .Our successive postponements had thrown the whole tax of 1784 on the year 1785. The remission therefore still leaves three halves to be collected. The plentiful crops on hand both of corn & tobo, and the price of the latter which is vibrating on this river between 36/. & 40/. seem to enable the Country to bear the burden. A few more plentiful years with steadiness in our Councils will put our credit on a decent footing. The payments from this State to the Continental treasury between Apl., 83, and Novr., 84, amount to £123,202 11s. 1½, Va. Curry. The printed report herewith inclosed will give you a rude idea of our finances.
An Act giving James Rumsey the exclusive privilege of constructing & navigating certain boats for a limited time.J. Rumsey by a memorial to the last Session represented that he had invented a mechanism, by which a boat might be worked with little labour at the rate of from 25 to 40 miles a day, against a stream running at the rate of 10 miles an hour, and prayed that the disclosure of his invention might be purchased by the public. The apparent extravagance of his pretensions brought a ridicule upon them, and nothing was done. In the recess of the Assembly, he exemplified his machinery to General Washington and a few other gentlemen, who gave a certificate of the reality & importance of the invention, which opened the ears of the Assembly to a second memorial. The Act gives a monopoly for ten years, reserving a right to abolish it at any time by paying £10,000. The inventor is soliciting similar Acts from other States, and will not I suppose publish the secret till he either obtains or despairs of them.
An act for punishing certain offences injurious to the tranquility of this Commonwealth.This act authorises ye surrender of a Citizen to a foreign Sovereign within whose acknowledged jurisdiction the citizen shall commit a crime, of wch. satisfactory proof shall be exhibited to Congress, and for which in the judgment of Congress the law of nations exacts such surrender. This measure was suggested by the danger of our being speedily embroiled with the nations contiguous to the U. States, particularly the Spaniards, by the licentious & predatory spirit of some of our Western people. In several instances gross outrages are said to have been already practiced. The measure was warmly patronized by Mr. Henry and most of the forensic members, and no less warmly opposed by the Speaker and some others. The opponents contended that such surrenders were unknown to the law of nations, and were interdicted by our declaration of Rights. Vattel however is express as to the case of Robbers, murderers and incendiaries. Grotius quotes various instances in which great offenders have been given up by their proper Sovereigns to be punished by the offended Sovereigns. Puffendorf only refers to Grotius. I have had no opportunity of consulting other authorities. With regard to the bill of rights, it was alleged to be no more or rather less violated by considering crimes committed agst. other laws as not falling under the notice of our own, and sending our Citizens to be tried where the cause of trial arose, than to try them under our own laws without a jury of the vicinage, and without being confronted with their accusers or witnesses; as must be the case, if they be tried at all for such offences under our own laws. And to say that such offenders could neither be given up for punishment, nor be punished within their own Country, would amount to a licence for every aggression, and would sacrifice the peace of the whole community to the impunity of the worst members of it. The necessity of a qualified interpretation of the bill of rights was also inferred from the law of the Confederacy which requires the surrender of our Citizens to the laws of other States, in cases of treason, felony or other high misdemesnors. The Act provides however for a domestic trial in cases where a surrender may not be justified or insisted upon, and in cases of aggressions on the Indians.
An act for incorporating the Protestant Episcopal Church.This act declares the Ministers & vestries who are to be triennially chosen in each parish a body corporate, enables them to hold property not exceeding the value of £800 per annum, and gives sanction to a Convention which is to be composed of the Clergy and a lay deputy from each parish, and is to regulate the affairs of the Church. It was understood by the House of Delegates that the Convention was to consist of two laymen for each clergyman, and an amendment was received for that express purpose. It so happened that the insertion of the amendment did not produce that effect, and the mistake was never discovered till the bill had passed and was in print. Another circumstance still more singular is that the act is so construed as to deprive the Vestries of the uncontrouled right of electing Clergymen, unless it be referred to them by the canons of the Convention, and that this usurpation actually escaped the eye both of the friends and adversaries of the measure, both parties taking the contrary for granted throughout the whole progress of it. The former as well as the latter appear now to be dissatisfied with what has been done, and will probably concur in a revision if not a repeal of the law. Independently of these oversights the law is in various points of view exceptionable. But the necessity of some sort of incorporation for the purpose of holding & managing the property of the Church could not well be denied, nor a more harmless modification of it now obtained. A negative of the bill too would have doubled the eagerness and the pretexts for a much greater evil, a general Assessment, which, there is good ground to believe was parried by this partial gratification of its warmest votaries. A Resolution for a legal provision for the “teachers of the Christian Religion” had early in the Session been proposed by Mr. Henry, and in spite of all the opposition that could be mustered, carried by 47 agst 32 votes. Many Petitions from below the blue ridge had prayed for such a law; and though several from the presbyterian laity beyond it were in a contrary stile, the Clergy of that Sect favored it. The other Sects seemed to be passive. The Resolution lay some weeks before a bill was brought in, and the bill some weeks before it was called for, after the passage of the incorporating act it was taken up, and on the third reading, ordered by a small majority to be printed for consideration. The bill, in its present dress proposes a tax of blank per Ct. on all taxable property for support of Teachers of the Christian Religion. Each person when he pays his tax is to name the society to which he dedicates it, and in case of refusal to do so, the tax is to be applied to the maintenance of a school in the County. As the bill stood for some time, the application in such cases was to be made by the Legislature to pious uses. In a committee of the whole it was determined by a majority of 7 or 8 that the word “Xn.” should be exchanged for the word “Religious.” On the report to the House the 1pathetic zeal of the late Governor Harrison gained a like majority for reinstating discrimination. Should the bill pass into a law in its present form it may & will be easily eluded. It is chiefly obnoxious on account of its dishonorable principle and dangerous tendency.
The subject of the British debts underwent a reconsideration on the motion of Mr. Jones. Though no answer had been recd. from Congress to the Resolutions passed at the last Session, a material change had evidently taken place in the mind of the Assembly, proceeding in part from a more dispassionate view of the question, in part from the intervening exchange of the ratifications of the Treaty. 1Mr. Henry was out of the way. His previous conversation I have been told, favored the reconsideration; the Speaker, the other champion at the last Session against the Treaty, was at least half a proselight. The proposition rejected interest during the period of blank and left the periods of payment blank. In this form it was recd. with little opposition and by a very great majority. After much discussion & several nice divisions the first blank was filled up with the period between the 19 of Apl., 1775, and the 3 of March 1783, the commencement and cessation of hostilities; and the second with seven annual payments. Whilst the bill was depending, some proceedings of the Glasgow merchants were submitted to the H. of D. in which they signified their readiness to receive their debts in four annual payments, with immediate security and summary recoveries at the successive periods and were silent as to the point of interest. Shortly after were presented memorials from the Merchants of this Town & Petersburg representing the advantage which a compliance with the Glasgow overtures would give the foreign over the domestic creditors. Very little attention seemed to be paid by the House to the overtures, tho’, as the Treaty was not to be literally pursued, the shadow of assent from the other party was worthy of being attended to. In the Senate the bill met with a diversity of opinions. By a majority of one voice only an attempt to put all our domestic debts on the same footing with British debts was lost. Whether this was sincere or a side blow at the bill I am unable to say. An attempt was next made to put on the same footing all those who left this Country and joined the other side, or who remained within the British territories for one year at any time since the 19 Apl., 1775, or who refused a tender of paper money before Jany, 1779. These discriminations were almost unanimously disagreed to by the H. of D. The Senate insisted. The former proposed a conference. The Senate concurred. The Conference produced a proposition from the H. of D. to which the Senate assented; but before the assent was notified an incident happened which has left the bill in a very singular situation. The delays attending this measure had spun it out to the day preceding the one prefixed for a final adjournment. Several of the members went over to Manchester in the evening, with an intention it is to be presumed of returning the next morning. The severity of the night rendered their passage back the next morning impossible. Without them there was no house. The impatience of the members was such as might be supposed. Some were for stigmatizing the absentees and adjourning. The rest were some for one thing, some for another. At length it was agreed to wait until the next day. The next day presented the same obstructions in the river. A canoe was sent over for enquiry by the Manchester party, but they did not chuse to venture themselves. The impatience increased, warm resolutions were agitated. They ended however in an agreement to wait one day more. On the morning of the third day the prospect remained the same. Patience could hold out no longer and an adjournment to the last day of March ensued. The question to be decided is whether a bill which has passed the House of Delegates, and been assented to by the Senate; but not sent down to the H. of D., nor enrolled, nor examined, nor signed by the two Speakers and consequently not of record, is or is not a law? A bill for the better regulation of the customs is in the same situation.
After the passage of the Bill for British debts through the H. of D. a bill was introduced for liquidating the depreciated payments into the Treasury, and making the debtors liable for the deficiency. A foresight of this consequential step had shewn itself in every stage of the first bill. It was opposed by1Governor Harrison principally and laid asleep by the refusal of interested members to vote on the question, and the want of a quorum without them.
Among the abortive measures may be mentioned also a proposition to authorise the collection of the impost by Congress as soon as the concurrence of twelve States should be obtained. Connecticut had set the example in this project. The proposition was made by the Speaker & supported by the late Governor. It was disagreed to by a very large majority on the following grounds 1 the appearance of a schism in the Confederacy which it would present to foreign eyes. 2. its tendency to combinations of smaller majorities of the States. 3. the channel it would open for smuggling; goods imported into Rhode Island in such case might not only be spread by land through the adjacent States, but if slipped into any neighbouring port might thence be carried duty-free to any part of the associated States. 4. the greater improbability of a union of twelve States on such new ground, than of the conversion of Rhode Island to the old one. 5 the want of harmony among the other States which would be betrayed by the miscarriage of such an experiment, and the fresh triumph & obstinacy which Rhode Island would derive from it.
The French vice Consul in this State has complained to the Assembly that the want of legal power over our Sheriffs, Goalers & prisons, both renders his decrees nugatory, and exposes his person to insults from dissatisfied litigants. The Assembly have taken no step whatever on the subject being at a loss to know what ought to be done, in compliance either with general usage or that of France in particular. I have often wondered that the proposed Convention between France and the U. S. for regulating the consular functions has never been executed. The delay may prove unfriendly both to their mutual harmony & their commerce.
Mr. Henry was elected successor to Mr. Harrison without competition or opposition. The victims to the article requiring a triennial removal of two Counsellors were Merrywether Smith & General Christian. Young Mr. Roane and Mr. Miles Selden take their places. Mr. Short’s place is filled by Mr. Joseph Jones.
Nothing has passed during the session concerning an amendment of the State Constitution. The friends of the undertaking seem to be multiplying rather than decreasing. Several Petitions from the Western side of the Blue ridge appeared in favor of it; as did some from the Western side of the Alleghany praying for a separate Government. The latter may be considered all of them as the children of A. C’s ambition. The Assize Courts and the opening of our Rivers are the best answers to them.
The Revisal has but just issued from the press. It consists of near 100 folio pages in a small type. I shall send you six copies by the first opportunity. £500 was voted at the Spring Session to each of the Acting members of the Committee, but no fund having been provided for payment, no use could be made of the warrants. I drew yours however & carried them up to Orange, where they now lye. A vote of this Session has provided a fund which gives them immediate value. As soon as I get home I shall send the dead warrants to Mr. Nichs Lewis, who may exchange them for others, and draw the money from the Treasury. Mr. Peter Carr is I hear now in Williamsburg, he did not get there so soon as I expected, but I have not heard the circumstances which delayed him. On the best enquiries I could make for a stand for his younger brother I could hear of none preferable to the Academy in Prince Edward, and accordingly recommended that in a letter to Mrs. Carr. I have rec’d no answer, but am told by Mr. Underwood her neighbour that he is at school with a very proper man who has lately opened a school very convenient to Mrs. Carr. If this is the case it will be improper to remove him.
I have not yet had the pleasure of a line from you since you left Boston, nor do I know when I shall next find a subject for another to you. As soon as I do you may be assured that you shall hear from me & that I am in the meantime with sincerest friendship
Yrs J. Madison Jr.
Present my respects to Miss Patsy & Mr. Short.
[1 ]Madison also had a scheme for improving the roads of the State, and prepared resolutions in the winter of 1784-85 to be introduced at this session of the Legislature, but the time being inopportune he allowed the matter to drop.
[1 ]Cypher represented by italics.
[1 ]Cypher represented by italics.
[1 ]Italics for cypher.