Maryland State Archives

1) Excerpts from "The Papers of George Mason, 1725-1792. Robert A. Rutland, editor., 1970, relating to the Compact of 1785.

George Mason accepts Maryland's claim to regulate fishing on the Potomac UNTIL they agreed to give it up to joint management and jurisdiction in 1785:

[The issue then becomes just how much did Maryland give up and where did it apply.

In granting the right to 'full property in the Shores of Potomack River adjoining their Lands with all Emoluments and advantages thereunto belonging and the privilege of making and carrying out Wharfs and other Improvements so as not to obstruct or injure the Navigation of the River,' Maryland only gave up its right to regulate with regard to fishing off one's own land, and indeed retained the right to regulate (in existence since June 20, 1632) all other matters, including the licensing of the use of the river. "Full Property in the shores adjoining their land" in particular means the full property and its regulation as determined by Maryland precedent and Maryland land granting procedures (including the right of the state to take land and water back for public purposes), not Virginia law and precedent. Contrary to what George Mason thought (and even indicated he really knew), Virginia did not get as much as she claims, especially with regard to regulatory powers. Editorial note, ecp 9/12/00]

On March 16, 1784, Madison wrote Jefferson his view of the ownership of the Potomac which argued that the patents of the Northern Neck were older and thus superior to Lord Baltimore's grant. Jefferson was in Annapolis and Madison was encouraging him to do some research into the matter.

The Charter granted in 1732[1632] to Lord Baltimore makes, if I mistake not, the Southern Shore of the Potowmac, the boundary of Maryland on that side. The Constitution of Virginia cedes to that State "all the territories contained within its charter with all the rights of property, jurisdiction and Government and all other rights whatsoever, which might at any time have been claimed by Virginia, excepting only the free navigation and use of the Rivers Potowmac and Pokomoque etc." It is not to be apprehended that this language will be constructed into an entire relinquishment of the Jurisdiction of these rivers, and will not such a construction be fatal to our port regulations on that side and otherwise highly inconvenient? I was told on my journey along the Potowmac of several flagrant evasions which had been practiced with impunity and success, by foreign vessels which had loaded in Alexandria. The jurisdiction of half the rivers ought to have been expressly reserved. The terms of the surrender are the more extraordinary, as the patents of the N. Neck place the whole river potowmac within the Government of Virginia; so that we were armed with a title both of prior and posterior date, to that of Maryland. What will be the best course to repair the error? --to extend our laws upon the River, making Maryland the plaintiff if she chooses to contest their authority-- to state the case to her at once and propose a settlement by negociation-- or to propose a mutual appointment of commissioners for the general purpose of preserving a harmony and efficacy in the regulations on both sides. The last mode squares best with my present ideas. It can give no irritation to Maryld. It can weaken no plea of Virga. It will give Maryland an opportunity of stirring the question if she chooses, and will not be fruitless if Maryland should admit our jurisdiction. If I see the subject in its true light no time should be lost in fixing the interest of Virginia. The good humor into which the cession of the back lands must have put Maryland, forms an apt crisis for any negociation which may be necessary. You will be able probably to look into her charter and her laws, and to collect the leading sentiments relative to the matter. Smith, Republic of Letters, I:302-303

In April 1784, a year before the conference at Mt. Vernon, Jefferson replied from Annapolis that he liked the method Madison proposed and noted that to introduce this the more easily I have conversed with Mr. Stone (one of their delegates) on the subject and finding him of the same opinion have told him I would by letters bring the subject forward on our part. They will consider it therefore as originated by this conversation. Smith, Republic of Letters, I:310

On January 9, 1785, Madison sent Jefferson a long letter describing the actions of the Virginia Legislature just then ended. He notes that Washington was in Annapolis negotiating with the Maryland Legislature over the improvements to the navigation of the Potomac and that Virginia had passed a resolution late in the session concerning the benefits of cooperation among Pennsylvania, Maryland and Virginia in improving communication westward along and beyond the Potomac. 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 alloted to the Commissrs. who are to settle with Maryd. the jurisdiction & navigation of Potowmac below tide water. Madison Papers, VIII:225, and Smith, Republic of Letters, 1:358.

Madison again wrote Jefferson on April 27, 1785 I understand that Chase and Jennifer on the part of Maryland, Mason and Henderson on the part of Virginia have had a meeting on the proposition of Virga. for settling the navigation and jurisdiction of Potowmac below the falls, and have agreed to report to the two assemblies, the establishment of a concurrent jurisdiction on that river and Chesapeak. The most amicable spirit is said to have governed the negociation. Jefferson Papers, VIII:113

The last major reference in the Madison/Jefferson correspondence to Maryland's jurisdictional claims over the Potomac seems to come in January of 1797 in a letter from Jefferson. I suppose you are informed of the proceedings commmenced by the legislature of Maryland to claim the South branch of Patowmac as their boundary, and thus, of Albemarle now the central county of the state, to make a frontier. As it is impossible upon any consistent principles and after such a length of undisturbed possession that they can expect to establish their claim, it can be ascribed to no other than an intention to irritate and divide, and there can be no doubt from what bow the shaft is shot. However let us cultivate Pennsylvania and we need not fear the universe. The assembly have named me among those who are to manage this controversy. But I am so averse to motion and contest, and the other members are so fully equal to the business that I cannot undertake to act in it. I wish you were added to them.... Smith, Republic of Letters, I:960-61

requested pages, AS 10/27/00:

281, 302-03, 307-08,323,369, 396, 960-61, 356-58, 428-29, 459-60,516, 1253]

Virginia exhibit 3

Under the provisons of the Maryland Declaration of Rights and the Constitution as as amended to date, it is likely that the Compacts of 1785 and 1958 between Maryland and Virginia with regard to the navigation and fishery resources of the Potomac River  are unconstitutional.  Because the Compact of 1785 modifies the sovereignty of Maryland, in order for it to have been adopted, it should have been passed by two successive legislatures with an intervening general election.  For the Compact of 1958 to have been constitutional it should have been submitted to referendum.  Neither course of action was taken.  For the 1776 Constitutional requirements see: http://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000001/000078/html/index.html For 1958 see:http://ssl.csg.org/compactlaws/potomacriverof1958.html.

MARYLAND

Article - Natural Resources
§4-306.

Preamble

Whereas, Maryland and Virginia are both vitally interested in conserving and improving the valuable fishery resources of the tidewater portion of the Potomac River, and

Whereas, certain provisions of the Compact of 1785 between Maryland and Virginia having become obsolete, Maryland and Virginia each recognizing that Maryland is the owner of
the Potomac River bed and waters to the low watermark of the southern shore thereof; as laid out on the Matthews-Nelson Survey of 1927, and that Virginia is the owner of the Potomac
River bed and waters southerly from said low watermark as laid out, and that the citizens of Virginia have certain riparian rights along the southern shore of the river, as shown on said
Matthews-Nelson Survey, and, in common with the citizens of Maryland, the right of fishing in said river, Maryland and Virginia have agreed that the necessary conservation and
improvement of the tidewater portion of the Potomac fishery resources can be best achieved by a commission comprised of representatives of both Maryland and Virginia, charged with
the establishment and maintenance of a program to conserve and improve these resources,
….
Article VII. Effect on Existing Laws and Prior Compact

Section 1. The rights, including the privilege of erecting and maintaining wharves and other improvements, of the citizens of each state along the shores of the Potomac River
adjoining their lands shall be neither diminished, restricted, enlarged, increased nor otherwise altered by this compact, and the decisions of the courts construing that portion of Article
VII of the Compact of 1785 relating to the rights of riparian owners shall be given full force and effect.

[The correspondence indicates that Washington always considered the issues of above tidewater and below tidewater separately, concentrating almost all his energies in obtaining agreement on the improvement of navigation above tidewater. In doing so he realized that he had to cater to the interests of Maryland and to lobby with Maryland to exercise its sovereign rights on behalf of his proposed Potomac Company. Almost a year to the day after the most affecting ceremony of his resigning his commission before Congress, then occupying the Old Senate Chamber in the State House in Annapolis, Washington was back before the Maryland legislature lobbying hard for support for the Potomac Company. He was successful. Virginia was forced to repeal any previous laws it had enacted on the subject and to pass the Maryland version of the Potomac Company incorporation law intact without change. Once the above tidewater issues were resolved, then attention was turned to cooperation on the waters below tidewater and the Mt. Vernon conference and resulting compact of 1785 relating to the waters below tidwater ensued. Subsequent negotiations over the Potomac (including the Black/Jenkins Award) did not have the benefit of the full record of the surviving papers of George Washington, James Madison, Thomas Jefferson, George Mason, and other participants in both sets of negotiations. Only in the last fifty years, subsequent to all major Supreme Court cases involving the Potomac, were the surviving records of those who participated in the process of negotiation over the future fate of the Potomac made public in easily accessible and well-edited form. Note that I do not believe that the editors have properly identified the enclosure mentioned in Washington's January 18, 1785 letter to Fitzgerald and Hartshorne. I suspect that that enclosure is now lost and that it reflected Madison begrudging opinion that the ownership of the bed of the Potomac, especially above tidewater, was vested in Maryland by Maryland's charter which during the colonial period had survived innumerable efforts to have it nullified or superceded. ecp editorial note 11/7/00]

See also MSA SC 5796-8-11 for materials posted from Virginia exhibit 58

[McWilliams was a member of the Potomac River Commission that produced the Potomac River compact subsequently passed by both Legislatures and ratified by Congress. ecp 12/14/00]

My Dr. Sir:

Not until within these few days have I been favored with your letter of the 18th. of Octr. introductory of Mr. Porter. I beg you to be assured that I shall have pleasure in shewing him every civility in my power while he makes this region the place of his residence; as I shall to any other, to whom you may give letters recommendatory.

A few days ago I received from on board some vessel in the harbor of Alexana. two cheese's and a barrel (wrote thereon Major Rice)86 of Cranberries, unaccompanied by letter, but said to be a present from you. If this be the fact I pray you to accept my thanks for this token of your recollection, or to offer them to Majr. Rice, if the barrel came from him. [Note 86: Maj. Nathan Rice. He was formerly aide to General Lincoln.]

We have nothing stirring in this quarter worthy of observation, except the passing of two Acts by the Assemblies of Virginia and Maryland (exactly similar) for improving and extending the navigation of the river Potomac from tide water, as high up as it shall be found practicable, and communicating it by good roads with the nearest navigable waters to the Westward: which acts in their consequences, may be of great political, as well as commercial advantages: the first to the confederation, as it may tie the Settlers of the Western Territory to the Atlantic States by interest, which is the only knot that will hold. Whilst those of Virginia and Maryland will be more immediately benefited by the large field it opens for the latter. Books for receiving subscriptions are to be opened at Alexandria and other places the 8th. instant, and continue so until the 10th. of May; as the navigable part of the business is to be undertaken by a company to be incorporated for the purpose. With great truth and sincerity I am, etc.87 [Note 87: From the "Letter Book" copy in theWashington Papers.]