Sam Brainerd's Notes on Virginia's "Brief in Support of Motion for Partial Summary Judgment"
As I read through Virginia's "Brief in Support of Motion for Partial Summary Judgment," I made a number of comments in the margins. Some are cogent, others undoubtedly less so, but it might be useful to share them anyway, in case I came up with a few points others haven't already thought of. Some of the comments I'll make are picky, but I think lawyers routinely point out and make hay of small inaccuracies, so I won't censor myself.
Rather than impose a structure on them of my own, I'll scribble my comments down here in the order in which they appear in the brief. By doing so, a more natural order may occur to me, or to you. In keeping with the conventions we have been using on the web site, I'll place in quotes material from the brief, and enclose my comments in square brackets.
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p. 2: SUMMARY OF ARGUMENT
"In 1785, . . . the precise location of the boundary . . . remained unsettled, with Virginians claiming to the Maryland shore and Marylanders claiming to the Virginia shore. Thus, when commissioners . . . negotiated the Compact of 1785, the ownership and use of the River was still in dispute."
[This is incorrect. In its 1776 constitution, Virginia had ceded its claim to lands included in Maryland's Charter of 1632.]
p. 3: SUMMARY OF ARGUMENT
"Clause Four of the [Black-Jenkins] Award specifically provided that 'Virginia is entitled . . . to such use of the river beyond the . . . low water mark, . . . without impeding the navigation or otherwise interfering with the proper use of it by Maryland'."
[But couldn't the taking of large amounts of water from the middle of the river be construed as interfering with MD's use? How much water is Virginia intending
to take, and how does that amount compare to the normal flow of the river?]
"Moreover, Maryland conceded in the arbitration that Virginia's Potomac River access rights applied along the entire boundary."
[Are "access rights" the same as "riparian rights"? It seems to me that access rights might be more limited, granting merely the right to reach or enter the river,
but not necessarily to use it as they wished.]
p. 5: BACKGROUND
"Woodrow Wilson wrote: 'Everybody knows that it was a conference between delegates of Maryland and Virginia about [George] Washington's favorite scheme . . . -a conference held at his suggestion and at his house-. . . ."
[First, notice how willing Virginia's lawyers are to cite secondary research, and especially secondary research that might well be considered out-of-date today.
Maryland's lawyers could perhaps exploit this weakness. Second, I don't think Wilson was correct that the conference was held at GW's suggestion, at least not
at his direct suggestion. A tiny point, perhaps, but it could go to Wilson's credibility on the subject. Did Wilson cite any sources for that claim? Does his history
cite sources in general? As far as I can tell, the idea for the conference was Madison's, as witness his letter to Thomas Jefferson of March 16, 1784, where he
suggests three possible ways of gaining rights on the Potomac for Virginia. The best of the three, he says, is to have commissioners negotiate an agreement.]
p. 6: BACKGROUND, The River
"The River marks the common boundary between Maryland, on the north shore, and West Virginia and Virginia, on the south shore."
[I'm amused by the casual, self-serving language Virginia's lawyers use here. Maryland is not "on the north shore." Maryland is properly described as "north of
the southern shore of the Potomac." The use of casually incorrect language like this subtly plants incorrect notions in the minds of the readers, and I wouldn't be
surprised if its use wasn't intentional.]
pp. 6-7: BACKGROUND, The River
"The drainage basin covers 14,670 square miles, of which Virginia accounts for 39%, and Maryland 26%."
[The clear implication here is that Virginia deserves more rights in the Potomac, because it has a greater stake in the Potomac Basin. Well, the way they express
that in their table makes it seem true. But, remember, Virginia's lawyers have chosen their words and their presentation carefully. Moreover, there's no reason for
Maryland's lawyers to accept Virginia's "spin." Here's an alternative way to look at Virginia's facts which puts a totally different spin on the matter (I took the
area data from the Rand McNally International Atlas):
State State Drainage % of State
Area Area in Potomac Basin
---------------------------------------------------------------------------------------
VA 40,766 5,723 14.0%
MD 10,460 3,818 36.5
WV 24,231 3,490 14.4
PA 46,043 1,570 3.4
DC 69 69 100.0
This is an equally valid way of looking at the data, and it suggests that Maryland deserves to hold on to its historical control over the Potomac, because the
Potomac River Basin is relatively so much more important to the state than it is to Virginia, or any other state.]
p. 7: BACKGROUND, The River
"The ultimate issue . . . is whether Maryland can regulate Virginia's use of, and access to, the Potomac River."
[Again, use of, and access to, are likely to be different things. The Compact of 1785 does not limit Virginia's access to the river, but it certainly limits its use (to
improvements that don't harm navigation).]
p. 7: BACKGROUND, Conflicting Charters and Colonial Claims
"The complex conflicts that ensued [from the conflicting charters] need not be untangled in order to resolve the present dispute."
[Whoa! This seems like misdirection (a magician's term) to me. Just because Virginia's lawyers say so, doesn't make it true. One matter involving the charters, for
example, that has bearing on the present dispute is Virginia's claim to western lands. It's clear from the historical record that the main reason Virginia was willing
to cede the land covered by other states' charters (and thus their ownership of the Potomac) was so that those other states would not dispute Virginia's Western
rights. Seen in that light, Virginia did not place as much importance on owning the Potomac as its lawyers would now like us to believe. The boundary was not
unsettled after 1776, as they claimed it was on p. 2.]
p. 9: BACKGROUND, Virginia's Constitution of 1776
"After the outbreak of the Revolutionary War, Virginia relinquished claims to certain territories in the charters of its neighboring colonies."
[It's important to clarify why Virginia did so, as I say above. Moreover, Virginia ceded not just "certain territories," but all those territories, as well as "all other
rights whatsoever," with the sole exception of the navigation and use of the Potomac and Pokomoke. More Virginia spin.]
p. 9: BACKGROUND, Virginia's Constitution of 1776
"However, the Maryland constitutional convention in October 1776 rejected Virgiinia's action and asserted the territory within Maryland's charter was not Virginia's to cede."
[Virginia's lawyers here seem to imply that Virginia's cession is moot, because Maryland didn't accept it. I doubt that. I would think Virginia's cession, having
been unilateral, took effect regardless of Maryland's opinion on the matter. Surely Maryland wouldn't turn down territory thus offered up. Furthermore, why do
Virginia's lawyers cite McMahon's 1831 history? Could it be that other, more modern historians might have a different interpretation? What does the primary
record have to say?]
p. 10: BACKGROUND, Preliminary Efforts to Resolve the Jurisdiction of the Potomac River
"A committee of the Maryland legislature prepared instructions for [the three commissioners]."
[Again, Virginia's lawyers cite a secondary source, the notoriously unreliable Scharf. Why? I'd like to read the primary source, because Maryland's legislators
might have said something definite about the Potomac. I suppose this is on our web site somewhere?]
p. 11: BACKGROUND, The Mount Vernon Compact of 1785
Note 28: "Madison's place in history is well-known."
[This is my favorite bit of misdirection in this brief! Madison, it turns out, wrote at least three times to Thomas Jefferson that the Compact of 1785 referred only
to the tidewater portion of the Potomac. Madison's opinion is important, even paramount, because he was the one who, as I said above, came up with the idea of
a compact. One could try to argue that Virginia's lawyers simply missed those quotes in their search, but they managed to find the papers of Washington and
Mason, so how could they have missed those of Madison and Jefferson?
Here, for convenience, is an extract of what Madison wrote to Jefferson (emphases added). Note how unequivocal Madison was:
16 March 1784: "What will be the best course to repair the error [of Virginia's constitutional cession]?-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 of both sides. The last mode squares best with my present ideas."
25 April 1784: "On the 16 of March I wrote you fully on sundry points. Among others I suggested to your attention the case of the Potowmac, having in my eye the river below the head of navigation. It will be well I think to sound the ideas of Maryland also as to the upper parts of the N. branch of it."
9 January 1785: "This Resolution [concerning Pennsylvania's participation in opening a road to the west] 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 Commissioners who are to settle with Maryd. the jurisdiction and navigation of Potowmac below tide water."
27 April 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."]
p. 12: BACKGROUND, June 1784: Virginia Appoints Commissioners
Note 29: "Scharf misreported the text of [Virginia's] resolution in his History of Maryland."
[Yet Virginia's lawyers don't mind quoting Scharf when he appears to support their case.]
pp. 12-13: BACKGROUND, Origins of the [Potomac Company] Project
"Washington had written as early as 1754 . . . about his experience navigating the River from Frederick, Maryland to the falls. He documented those portions where shallowness or obstructions made navigation difficult."
[Note again the casual language: using "navigate" to subtly propound that Washington's inland cruising of the non-tidewater Potomac was considered equivalent to tidewater navigation by sea-going vessels. My first question is, what word did Washington actually use in his 1854 letter to Lee? (I haven't checked yet.) Did he say "navigate," or some other seeming synonym that had a very different meaning back then? I notice that in note 33, "navigate" is not used in the quotation. Second, what did "navigate" mean at that time? I notice that when the brief provides us with direct quotes concerning travel on the upper Potomac, the word is usually modified in some way, as in "inland Navigation" (pp. 16 & 18) and "the extension of the inland navigation" (p. 18). When "navigation" is used without modification, it usually appears in phrases like "opening of navigation" (p. 18), "extending the navigation" (p. 19), or "improving navigation" (p. 13). This last phrase, I suspect, was then considered more of a synonym for "opening" than for bettering already extant navigability.
Unfortunately, I doubt that it will be easy to make a case that the word "navigation" referred only to sea-going ships in the 18th century. The word comes from the Latin "navis," meaning "ship," but I'm not sure that meant sea-going ships alone. The earliest (16th century) uses of "navigation" in English, according to the OED, do seem related to the sea, as did the earlier word "navy." The phrase "inland navigation" appears in 1727, suggesting that a distinction between the two types of navigation still existed then. "Navigation," unmodified, in the sense of "a natural inland channel" first appeared in 1720: "the Navigation of Wakefield."
The difficulty of establishing the meaning of "navigation" notwithstanding, I would think the effort important, given the brief's later argument that the "plain
language" of the 1785 Compact proves it applied to the entire Potomac.]
pp. 14-15: BACKGROUND, Origins of the [Potomac Company] Project
"[Thomas] Johnson wrote to Washington that the Maryland Governor apparently believed that supporting the [Potomac] project would weaken Maryland's claim to jurisdiction over the River."
[Note 42 doesn't clarify why the governor felt that way, but at least it is quite clear that he considered Maryland to own the river.]
p.17: BACKGROUND, Concurrent Legislation: December 1784-January 1785
"Washington also pointed out the importance of Rumsey's invention [a mechanical boat], explaining: '. . . . if we are disposed to avail ourselves of them [such favorable circumstances], a large portion of the trade of the Western Country in the bosom of this State irrevocably.'"
[I mention this quotation, because it shows how Washington, like many other Virginians, were out to improve the position of their state at the expense of other
states. No wonder some Marylanders, especially Baltimore's merchants, were dubious about the Potomac Company. It seems to me this passage helps us
understand why Maryland might have considered control over the tidewater Potomac (as granted in the 1785 Compact) as a quid pro quo for their help in
establishing the Potomac Company.]
p.19: BACKGROUND, Concurrent Legislation: December 1784-January 1785
"The group prepared a 'conference report' which stated, in relevant part: . . ."
[I wouldn't trust this brief to determine what is relevant to Maryland's argument!]
Note 65: "The conference also suggested that Virginia's earlier 1772 law 'for opening and extending the navigation of the River Potomac from Fort Cumberland to tide water,' ought to be repealed."
[Why? Did it conflict in some way with the 1784 bills for the Potomac Company?]
p. 20: BACKGROUND, Concurrent Legislation: December 1784-January 1785
"The Virginia legislature voted on December 28, 1784, to amend the authorization of the commissioners appointed the previous June (Mason, Madison, Randolph and Henderson), instructing them to open a dialogue with Pennsylvania about their plans. . . ."
[I want to see the text of this amendment. Did Virginia amend the authorization, or merely ask the commissioners, as a separate task, to present the resolution to
Pennsylvania? Madison's letter of 9 January 1785 (quoted above) suggests the latter.]
p. 26: BACKGROUND, The Mount Vernon Conference: March 1785.
Note 98: "Mason later recounted that General Washington had a copy of the December resolution 'respecting the Application to be made to the Government of Pennsylvania, which he very obligingly gave us.'"
[Yes, further evidence that the application to Pennsylvania, was not the commissioners main focus, but merely an add-on to their other task. They didn't even
have a copy of it. So the fact that the commissioners were passing on a document that dealt with the upper Potomac in no way suggests that the Compact of
1785 itself had anything to do with the Potomac above tide water.]
p. 29: BACKGROUND, The Mount Vernon Conference: March 1785.
"Thomas Stone wrote to General Washington on December 10, 1785. . . ."
[Virginia's lawyers relied on a secondary source for this information. W. W. Abbot, in The papers of George Washington, says this letter is not found, and that its date is December 18.]