Mr. Stanford seldom troubled the House with any motion; but the one alluded to by his colleague, (Mr. Speaker,) he had brought forward from a sense of duty. The reiterated applications of the inhabitants of this district for legislative provisions, he had always listened to with attention, and he had no objection to proceeding in the discussion of the present bill, convinced that it would only serve to show the necessity of receding the territory. From all that had hitherto been done, it was apparent that they could not attempt to accommodate one part of the district without drawing forth petitions against the same from another part. Counter-petitions were constantly coming in. He was willing to hear every thing, but he did not believe the House could agree to any thing, and it was not to be wondered at when the inhabitants could not agree among themselves; or, if the House agreed at this time relative to the objects of the bridge company and the causeway petitioners, it would be, he suspected, to do nothing in either case. All this tended to evince the propriety of adopting the resolution he had laid on the table to recede the territory to the States of Virginia and Maryland, who would then have competent powers to gratify both parties, if they deemed it expedient, of which he was convinced they were better judges than this, or any future Congress was ever likely to be.
The question on the committee rising was taken, and lost—only forty-three members voting in the affirmative.
Mr. Macon then proposed to amend the bill in such a way as to provide for regulating the ferries that might be established across the eastern part of the stream to the causeway, and applying the fund arising from the same for the purpose of keeping the causeway in repair.
Mr. Lewis did not consider it useful to travel over the ground assumed on a former occasion, but would confine himself to state to the committee some information he had acquired since, in respect to the damage the Eastern Branch or the port of Alexandria was likely to sustain, as had been alleged. Before the year 1784, the channel on the western side was so shallow that vessels only of very ordinary burden could pass, while on the Maryland side vessels of great draught of water could easily pass up to Georgetown. The uncommon hard winter of 1783-’4 was followed in the spring by the greatest torrents ever known in the Potomac. The bodies of ice were of immense magnitude, and many of them lodged upon the island, and under the rocks of its bed, prizing with a force beyond all credibility: it tore the rocks asunder and pressed them over into the new channel, occasioning a rise of thirty or forty feet on the Georgetown shore. On the Virginia side the torrent also forced itself and deepened that channel, while it left a vast quantity of mud, rocks, and sand, in the eastern channel, which has been constantly accumulating since that period. The situation of the present bar is at the meeting of the two arms of the river, below the island, and does not permit the passage of vessels over it drawing more than twelve feet water. The consequence of this alteration in the bed of the river below the island has been to narrow the mouth of the Eastern Branch, but it had no effect upon the harbor of Alexandria. This may serve to explain what may be the effect of opening the old channel in the way proposed: it may operate to widen the mouth of the Eastern Branch harbor, but it cannot injure Alexandria.
Mr. Clark.—When this bill was under consideration, some days past, I endeavored to show (and hope with satisfaction) that Congress had not the power of legislating on this subject. The ground I then assumed was, that Virginia had, by contract with the State of Maryland, before the cession to the United States, acquired the right of highway on the river Potomac, which she has never granted. It is now unnecessary to inquire into the reasons of this policy; it is sufficient for our present purpose to say it is the fact.
In retracing this subject, I find my arguments very much strengthened by examining the Articles of Agreement between the States of Maryland and Virginia, and this circumstance is the only inducement for my troubling the committee again. The sixth article of the Agreement declares that “the river Potomac shall be considered as a common highway for the purpose of navigation and commerce to the citizens of Virginia and Maryland, and of the United States, and all those in amity with them.” The eighth article declares that “all laws and regulations which may be necessary for preserving and keeping open the channel and navigation of the river shall be made with the mutual consent and approbation of both States.” If a doubt remained, therefore, it appears to me this must remove it, and time will be spent in vain to illustrate the subject.
Mr. Nelson did not expect that this point would have been brought up again, but since it had so happened, he felt a propriety, not to say a duty, in recapitulating also what he had urged before, and adding some further reasons to show that Congress had the right, and exclusive right, of jurisdiction over all that part of the river Potomac within the District of Columbia. The burden of the song appears to be this: that because the States of Maryland and Virginia entered into compact before the formation of the present constitution, by which it was agreed that the river should be considered a common highway, and as both possessed the right of way, it was a joint right, which, as they did not jointly convey the right, has never been ceded to the United States. Does the gentleman (Mr. Clark) mean to say that the States of Virginia and Maryland had not the power of granting this joint right? If he does not assert this, or if he admits they had the power, we shall be able to demonstrate that they have granted it to Congress. After two States have made a division of a part of each of their particular property, cannot they mutually give to another the property they have thus acquired? Surely common sense cannot deny them the right so to do: if you cannot grant away a right, it is no right, for a right cannot be complete if it cannot be conveyed to another; the very idea of right implies the power of disposal. They say that Maryland had the exclusive right of navigating the river Potomac, and that she gave by compact a qualified property in that exclusive right to Virginia. Cannot Virginia convey this qualified right? If one holds a right to an estate for life or a term of years, is it not as competent for the party to convey such right, as it would be to convey an estate in fee simple? Whether the right be a special right, or a limited right, or of whatever nature it be, every man has a right to convey it to another, unless there be exceptions or reservations; but in the compact between Maryland and Virginia there are no reservations or stipulations that abridge or preclude a conveyance. Then he asked them to propound this case: Maryland has a common right with Virginia in the Potomac, and Maryland declares that she gives up all her right to ten miles square of her territory—the Potomac is a part—Virginia also says that, so far as she has a right, she gives it up also. Well, then, both States have given up their respective rights. Does not the relinquishment of their rights by both States produce the same effect as if it had been done by a joint instrument? Maryland, he asserted, had given up her right; no matter whether it was a real right or qualified right, she gave up all but what she had conveyed to Virginia, and Virginia has given up all she possessed.
Mr. J. Randolph had hoped that the very perspicuous statement of his colleague, (Mr. Clark) when the subject was last under consideration, had satisfied the most incredulous that Congress were not competent to pass the bill before them. Indeed, he had hoped that the bill would have been suffered to sleep through the rest of the session, and the House no more troubled on the subject. The reasoning of the gentleman last up was to his mind utterly fallacious and inconclusive. The district was not necessarily divided into two bodies politic, because of the intervening jurisdiction of Virginia over the Potomac. Did Massachusetts constitute two States, because its parts were completely separated by New Hampshire, through which you must necessarily pass to get into Maine from old Massachusetts, as it was called? For the purpose of division the mathematical line which marked the boundary between the two States of Maryland and Virginia was equivalent to the whole breadth of the Potomac. On the ground of natural right, Congress could not obstruct the navigation of the river. They could not do it without admitting the right of Virginia and Maryland to raise obstructions above and below. Those States had as good a claim to stop the passage of ships of the United States as Congress had to interrupt their bateaux. But gentlemen say they are not stopping the navigation, they are improving it. How? by damming up the best channel. Did not this justify any species of obstruction? It was only to term it an improvement, and every objection was silenced. Whatever might be the decision of the House, he trusted no member from Virginia would be found to concede her right over the Potomac. He hoped also that the subject would be suffered to remain at rest until the question of recession was decided; but, in whatever shape it should appear, he should always protest against it, as a violation of the rights of the State which he represented.
Mr. Sloan would leave the dispute, as to the right of jurisdiction over the river, to be settled by those who were more competent to investigate law questions than he was himself. But, from what he had heard, he had brought his mind to this conclusion, that, whatever right Maryland possessed to the jurisdiction of the Potomac, Congress was now entitled to exercise. The gentleman from Virginia (Mr. J. Randolph) has said that Congress has no right to obstruct the navigation. True; but it does not follow that Congress has no right to remove obstructions. He says, also, that we might stop both branches. Not so; it is intended to stop one only, in order to deepen the other, so as to render the navigation more useful and safe. The case before us has been occasioned by the act of God, or a great movement in nature; a great quantity of ice has been lodged, and tore up from the shore and the island the materials that form, perhaps, the base of this sand-bar, by which the navigation has been obstructed. Now, suppose another case, that this ice had pent up the whole body of the river, and compelled the waters to form themselves a channel for escape through the lower grounds of the Virginia side, and thereby have given a new course to the river; and it would not be the first time that ice had been the cause of changing the bed of a river.
Mr. Alston did not intend to consume much of the time of the committee in delivering his sentiments, as the discussion had already been protracted to a much greater length than he, at the first view of the subject, supposed it merited. It has been contended by several gentlemen that Congress have no power to legislate at all upon the subject of the navigation of the river Potomac. This really, to him, appeared to be a very extraordinary doctrine indeed. That because Virginia and Maryland had not jointly conveyed a common property, their conveyances separate, although including this very common property, was not obligatory, and did not convey to Congress exclusive legislation and jurisdiction over such part of the river as lay within the District of Columbia. He admitted that the river Potomac was a common highway, and ought ever to remain so, for the benefit not only of the people of Virginia and Maryland, but likewise for all the citizens of the United States choosing to navigate the same; and to do any act whereby the navigation would, in the slightest degree whatever, be obstructed, was more than we had a right or ought to do. But would it follow, in consequence, that we had no right to improve or benefit the navigation of the river? Most indubitably not. It was, in his mind, clear, from the information he had received, that, unless something was done for the benefit of the navigation of the river, an end would soon be put to Georgetown as a commercial spot. He believed it to be universally the case that the uniting of any two streams of nearly equal size produced a bar or shallow place just below their junction. If, then, the bar complained of, just below Mason’s Island, has been produced in consequence of the uniting of the two arms of the river, it seemed to him an inevitable consequence that, if one of them was dammed up, the channel would return to its former depth. Mr. A. could not see the force of an argument made use of by his colleague, the honorable Speaker, if he understood him correctly, to say that, if the dam contemplated should be effected, it would tend to injure the ferries established on the river. In what manner the erecting the dam from Mason’s Island to the Virginia shore could affect them, he was not able to discover, as the land on the Virginia shore, opposite the ferries, and the island, belong to the same person. He entertained no doubt but that the same privileges would extend to the island as were now enjoyed at the landing on the Virginia shore.