CALENDAR OF VIRGINIA STATE PAPERS

Volume IV: Jan. 1785 - July 1789

13 Feb. 1786 Charles Lee, "Naval Officer of South Potowmack," to the Executive, in Reply,

pp. 88-91

Yesterday I had the honor to receive your excellency's letter of the 6^th instant, respecting the manner in which I conduct the business of my office, as to the entering of cargoes and ascertaining the duties thereupon, and I take the earliest opportunity of complying with your request.

Upon the arrival of each vessel, within the space of forty-eight hours, the master attends at the office and delivers his register, clearance and other papers of an official nature . . . .

With regard to the illicit practices [not specified in letter] which the act of the last session of Assembly may have had in view, though I believe they have been very great, yet I cannot think they have been so considerable as some imagined. However, such as they have been, they ought to be prevented in future, and I wish it was in my power to suggest any measures by which they might be effectually suppressed; but I am persuaded that, in the nature of things, it is impossible Let any one reflect on the geography of this country, the political government of it, and above all on the administration of the laws, and I think he will be of the same opinion. . . . Indeed, to collect duties on imports which are to produce considerable revenue, being in my opinion incompatible with the principles of every free Government, and particularly with our own, I have ever considered it impracticable, though at the same time I have ever endeavoured to execute the laws relating thereto . . .

I do not clearly understand what were the duties intended to be performed by the searchers, which the act has directed to be appointed. In England, from when the name seems to have been borrowed, their office is to examine what goods are shipped for exportation, on which drawbacks or debentures are allowed . . . but is this country drawbacks and debentures are not allowed . . . I conceive it was the intention of the legislature that those offices should act on board the State boats, in which situation they might detect vessels trading against law by examining their papers, and if this be the meaning of the law it will be requisite to furnish them with the several naval office seals, though I cannot but say it appears to me their services will be of little worth. The State boats may be of use in stopping vessels which, having offended, may attempt to fly the Commonwealth in order to avoid the penalties which the law would inflict.

With regard to the defects of our present laws, I have to observe that the importers, owners, or consignees of goods, should be severally required to render an account on oath of what belongs to them, rather than the masters of vessels . . .

If a vessel offends, so that she may be forfeited, the prosecution is to be in the Court of Admiralty, where it will be conducted with very many inconveniences as to the process, trial and sentence. This alone might effectually stop prosecutions, and as I have never been satisfied with the propriety of confining them to the Admiralty jurisdiction, I am led to think this a defect in our laws. Why might not the County Courts, within which the vessel lies at the time of the offence, have jurisdiction in such cases?

[This letter is not particularly relevant, but sheds some light on the whole systems of customs regulations and enforcement worked in Va.]

19 February 1787 Charles Lee, Naval Officer of South Potomack, to Gov. Randolph, pp. 245-46

Having seen in the Gazette the law of the last Session amending the port law, also sundry laws imposing duties, and having in my possession the late naval office law, I find myself in doubt as to some matters, what I ought to do, and therefore shall take the liberty of submitting them to your consideration that I may receive instructions.

Is a vessel belonging to citizens of Virginia wholly, and a vessel under 60 tons belonging to Maryland, exempt from tonnage 2s. and also 6d., light money? I think they are * * * * [in original]. If a ship from Sea be entered in North Potomack, may she be entered with my deputy in Alexandria, according to the last port law, if belonging to foreigners or citizens? It seems as if this might not be done, and unless permitted the merchants of Alexandria will be subject to great inconvenience. Indeed, I will not omit to observe, that the laws respecting trade of the last Session will introduce many embarrassments and inconveniences with respect to the naval office business, and thereby diminish the revenue arising from duties. To enter a ship at one place, deliver the cargo at another, and bring it up in river craft, exposed to accidents of various kinds, to a third place to be there sold, is a system in general not to be executed without great loss of time, money and trouble on the part of the merchants. Its operation upon trade will be to drive it from the Commonwealth elsewhere; and this effect will be sensible felt in Potowmack, as the merchants will find it their interests to do their business in Maryland. One of two modes must be adopted with regard to the entry of their ships by the Alexandria merchants, either originally at Yeocomico, or at Georgetown, in Maryland, and from thence with the deputy at Alexandria. This latter will be preferred, because, the invoices not being in the master's power, a ship must after arrival remain at Yeocomico until a messenger can go and return from Alexandria or Dumfries, a detention too expensive. At Yeocomico a master will be at a loss for sureties to secure the duties. The law of Maryland allows a full drawback upon exportation, and the merchants are convenient to Georgetown. Should this mode prevail, the tonnage of the Potowmack trade will be almost wholly paid to Maryland. I am told Yeocomico was made the port of entry to prevent smuggling. This effect cannot in any manner follow, because, by the compact law, any vessel may proceed up the river without stopping at my office, and as she passes up may smuggle now in the same manner as he might under the former law; but the Legislature are, I conceive, mistaken in the ideas they have had concerning this kind of smuggling. The inconvenience and expense is a greater burden than the duties.

26 June 1787 James M. McCrea, Searcher, to Gov. Randolph, p. 301

A few days ago the Schooner Dart, Capt. ----, arrived here from St. Kitt's and entered in Maryland, as sea vessels have usually done since the removal of the naval office from this place. Last night I had information of some Rum being privately Landed from on board the said Schooner in the night time, which Rum was never Enter'd in this State, in consequence of which I went on Board and made seizure of the vessel. [Vessel resisted and with assistance of a number of persons, many belonging to this place, escaped.] Under these circumstances I was advised by Mr. Lee, our naval officer, to lay the matter before the Executive immediately, that they might, if they judged proper, order out one of the armed State vessels to endeavour to take her on the Bay or River if possible. The Vessell, when she made here escape, went up towards Geo. Town, where she had Enter'd, and if she makes any stay there the State Vessells will have an opportunity of taking her. The difficulties attending seizures at this place will make the office of Searcher a very disagreeable one, if the officer is not better supported than heretofore.

29 June 1787 Chalres Lee, Naval Officer, South Potowmack, to Lt. Gov. Beverly Randolph, pp. 308-9

A late occurrence at this port, which I think it my duty to represent fully to the Exeuctive, will serve to show the necessity of having an armed boat stationed here to assist in the due execution of the laws, or the officers of the Commonwealth will not only be insulted, but frustrated in the discharge of their duty. [Describes events of June 26 involving the Dart: the ship had entered at the naval office in Georgetown, and was lying in the river off Alexandria, had been putting into craft and landing in Virginia west India Rum. Ship resisted when Va. searcher tried to seize it and fled to Georgetown.] Expecting to find the vessel off Georgetown in the stream, and Capt. Dodds on board, I had warrants issued to apprehend him to bring him to justice, and yesterday went up with a constable. Supposing force might be necessary, the Searcher, with some armed men, came up also in a boat, for the purpose of retaking the vessel. On my arrival I found the vessel in such a state, that is to say, made fast to the Maryland shore aside a wharf, that I did not think it lawful to attempt to take here by force, and Capt. Dodds being in Georgetown, the warrants could not be executed on him there by our constable.

I applied to one of the Maryland magistrates, Mr. Thompson, for a warrant, and produced to him an affidavit of the facts before related, in order to have Capt. Dodds apprehended and dealt with according to law. He refused, saying it was a State affair. After some difficulty a warrant was obtained from Mr. Magruder, another magistrate, but I expect Capt. Dodds, if taken, will immediately be discharged by the magistrates in Maryland, as it is a new business in which I findi t disagreeable to them to act, least they should do wrong.

Should Capt. Dodds and his vessel, which belongs to some inhabitants in St. Christopher's, escape without even a trial, it will be an evil example to others, and the laws and officers of the Commonwealth will not only be opposed and evaded, but treated with contempt.

I trust, sir, measures will be taken, by sending one of the armed boats to seize this vessel in the river as she may proceeding down to go to sea..

A copy of this letter I intend to send to the governor of Maryland, that the truth may be known to the executive of that State, and thereby they may be enabled to do whatever may seem to them expedient.

17 July 1787 David Stuart to (Lt.-Gov) Hon. Bev. Randolph (from Abingdon), pp. 317-19

pp. 317-19: "The late occurrences in Alexandria respecting the sloop Dart, induce me to trouble you with a few lines. I observe from the letter of the Executive to the Searcher, that they are properly alarmed on the subject. It now appears that the trade which the above vessel was detected in carrying on, has been practiced by most vessels since the late regulations. It is, accordingly, the general opnion here that she could not have been condemned on a trial. They consider themselves justified in this practice by the Compact law, which makes the Potomac free to both States for the purposes of commerce. A vessel that enters in Maryland, they say, has only to observe that she does not violate the commercial regulations of that State. By these being permitted to sell goods by retail long side of her, it is imposible to know whether the boats she sells to belong to Maryland or Virginia; that, therefore, the Virginia laws can only affect the small boats and not the vessel with which they deal. If this construction be just, you see what a door is opened to smuggling, and how unhappy it is for the revenue arising from commerce in this State. As each State always possessed a right of regulating its own trade as it thought proper, the eleventh article of the compact law appears to me totally nugatory under the above construction. I, therefore, think-tho' I am singular in my opinion is this part of the world-that a vessel, tho' entered in Maryland, is as much bound not to violate the Commercial regulations of Virginia as of the State in which she entered, and, of course, equally liable to seizure. Many difficulties, however, in the way of trade attend this opinion. Since a vessel, tho' entered in Maryland, will be fearful of using the privileges she is entitled to under the laws of that State, and to be safe must conform to the regulations of the State which is most rigid, and so vice versa. These, however, to me, only evince the necessity of the duties between States being assimilated, and the compact was certainly formed on this presumption. Otherwise it has been an unhappy transaction for Virginia, whose regulations being most rigid, will, infallibly, throw all the trade into Maryland, under the construction I first mentioned, and force the people of this state to smuggle.

"I hope, therefore, the Executive, who, from the nature of their office, must have full knowledge of the practicability of the laws in general, will not think it inconsistent with their duty to give their testimony to the Legislature, at its meeting, of the absolute necessity of assimilation. If, in the meantime, they think as I do of the compact law, and think proper to send it by way of instructions to the Searcher. I shall only mention further on this subject, that there have been, on an average all the spring, before the town of Alexandria, about fifteen ships and brigs. Scarce five of these have been entered in Virginia, while there can be no doubt but the rest, under the common interpretation of the Compact law, have carried on a great trade with the inhabitants. It is, indeed, openly avowed. The Searcher, from my knowledge of him, is a faithful, active officer, and if it was possible to put a stop to this business, I am sure he would do it.

"I believe it to be very necessary, however, that the Searchers on the upper parts of the river should be desired to attend better to their duty. The merchants here have good information of great quantities of tobacco being carried from the upper Counties on the Potomac to Maryland. Upwards of a hundred and five hogsheads were, from good information, lately carried nearly at one time. This practice, while the present tax subsists on tobacco, is not only so much loss to the State, but throws the burdens unequally on individuals. I cannot close this letter without taking notice of a late enormity committed in Alexandria . . ."

[In the first part of this letter Stuart is evidently referring to the tidewater portion of the Potomac. No vessel that entered in Maryland (and that did not come from Va.) would be above tidewater. The final paragraph, however, seems to refer to the river above tidewater, though it is not clear that he is still referring to the Md.-Va. Compact of 1785. It seems apparent that there was trade between Md. & Va. above tidewater-tobacco was being carried from Va.. to Md. "on the upper parts of the river" without paying the required duties. A cursory (and very brief) review of the laws concerning duties (which were not included in my original analysis of Hening's Statutes) suggests that although naval officers were stationed on the tidewater portions of the rivers, duties were due wherever goods were imported, either by water or by land. I may need to do a more comprehensive review of these laws. But even supposing we show trade between Md. & Va. across the Potomac above tidewater; what does that mean?]

3 August 1787 Jas. Innes, Atty-Gen'l to Gov. Randolph (from Richmond), pp. 326-29

pp. 326-29: "In compliance with the Request of the Executive I herewith [transmit?] to you my observations on the Extract of Doctor Stuart's Letter relative to the true meaning and force of the Compact Law between Virginia and Maryland.

"The Laws of the State of Virginia, respecting duties and customs, cannot be affected or in any degree suspended by the Compact between this State and Maryland, unless it be by some express Article clearly and explicitly referring to an repealing such Laws.

"The object of this Compact seems to extend no farther than to ascertain and designate, on principles of mutuality, the determinate and unequivocal rights which each State should assert and exercise on the waters and appendages of the Potowmacke, which formerly were subject to a mixed and undefined Jurisdiction. The fourth Article of the Compact is the only one which an any manner suspends or repeals any of our Commercial Regulations, and those which are affected by the fourth Article are repealed only so far as they extend to the vessels of Maryland of particular and specified dimensions, and laden with particular and specified cargoes.

"Before the passage of the Compact Law, vessels of all dimensions importing any cargoe, of what kind or nature it might be, from any foreign port or place whatsoever (which words by an explanatory Act of the Assembly were made to comprehend the United States of America) were subject to Tonnage and port duties. The natural and plain construction of the fifth article demonstrates that this law, farther than in the instance given, was not intended to introduce any change into the Commercial Regulations of the respective States. By this Article all Commercial vessels, except those already spoken of, which navigate the potowmacke, are directed to enter in one or both States according to the Laws of the State in which the Entry shall be made.

The meaning of this clause is obvious, notwithstanding the last line (from probably a Typographical error) seems a little involved. As commercial vessels navigating the Potowmacke can with ease trade in either one or both States at their option, therefor under this clause of the Compact Law it is directed that they shall enter, as circumstances shall require, either in on State only, if they confine their trade to one State, or in both States if they extend their trade and derive increased emoluments from the commerce of the two States.

And whenever, on account of the Extension of their traffic, it should become necessary to make entries in both States such Entries should be conformable to the Laws of the respective States. Had the words "State and Entry" in the last line been in the plural number, which appears necessary, to give proper force to the sentence of which it is a part, the meaning must have been too plain for scepticism itself to carp at. I trust, however, when the following reasons are attended to, the construction I give the Law will be found to be a just one. It has been observed before that no one of the Regulations of Virginia relating to Customs can be consider'd as repealed by the Compact Law, unless there be some direct and negative clause in the said Law contravening some particular regulation established by the Laws of Virginia.

The fourth article appears to be only part of this Law which has such an operation; it ought to be noted, too, that even that clause has but a partial and defined Energy. The particular forms and modes of Entry required, as well as the precise Quantum of Imports assessed by the respective States in consequence of their reserved Sovereignty in such cases, being things extraneous to the object, are left unimpugned by this Law, consequently they remain as they were before the ratification of the Compact. The Laws of Virginia direct that before any nation shall reap the advantages of a Commercial Intercourse with the citizens thereof, certain forms shall be complied with and stipulated duties paid; and that in all cases where these prerequisites are not complied with certain forfeitures ensue. The right of Virginia independantly to regulate her commerce being unquestionable, it cannot be infer'ed that a Licence to trade with the citizens of Maryland, after having complied with the requisites of the Laws of that State, gives a sanction to trade with the citizens of Virginia with't having complied with her requisites also. If Virginia as a Sovereign and independant State, in matters of trade, has a right to enforce the penalties of its Commercial laws within its own Jurisdiction, and it possesses a common Jurisdiction with Maryland on the River Potowmacke, it surely follows that if the Laws of Virginia have been violated on the Potowmacke, it rightfully possesses of enforcing the legal penalties ensuing such violation anywhere within the verge of that River.

But as the last clause of the fifth article of the Compact expressly enjoins what, had it omitted, must necessarily have resulted, from reasoning relatively, on the operations of this Law, as it bears reference to the Commercial Regulations of the respective States whose convenience it was meant to accommodate. The words are, "where any vessel shall make an Entry in both States, such vessel shall be subject to Tonnage in each State only in proportion to the commodities carried to or taken from such State." By this clause, it is plain that a vessel trading with both States must pay, by apportionment, Tonnage to each State; but before Tonnage can be ascertained an Entry of the vessel must be made at the naval office, and the Tonnage-money paid down. It inevitably follows, then, that outer vessels cannot trade with Virginia before Tonnage is paid, and Tonnage cannot be paid before Entry of the vessel-a vessel breaking bulk, and trading before entry, being subject to confiscation by the Laws of this State within the Jurisdiction thereof; and this State having a concurrent Jurisdiction with Maryland, from shore to shore of the Potowmacke, it f'lows as an inevitable consequence, drawn from the Compact itself, that such an offence committed against Virginia on the Potowmacke is anywhere punishable within the Boundaries of that River and the waters thereto appending.

"The same principles apply with equal force where Infringements have been made of the clause of the Act of Assembly concerning naval officers and the Collection of Duties, which peremtorily inhibits the Sale of mercantile articles from on Board the vessels which transport them. In cases of such illicit commerce with the citizens of the Commonwealth the goods sold, as well as the vessel from when they were sold, are subject to condemnation as fully on the waters of the Potowmacke as if the offence had been committed within the banks of the Rappahannock. As it as been asserted in the course of thee observations that the entrance of a vessel navigating the Potowmacke will not under the Compact justify an illicit commerce with Virginia, it remains to be considered how far a vessel, after having violated the Commercial Laws of Virginia, shall escape the penal consequences thereof by withdrawing herself to the Maryland shore of the Potowmacke.

"The Eleventh article of the Compact must either be considered as a dead Letter, or it must be construed as mutually extending the Jurisdiction of the respective States, in the instances therein mention'd, to very part of the confines of the said States, as far as they are washed by the waters of the Potowmacke and Pocomoke Rivers and the Bay of Chesapeake. The words of this Article are strong and unequivocal, "That any person or property removed, after committing a violation of the Commercial Regulations of either State, may be taken on any part of the Chesapeake Bay, or the Rivers aforesaid, by a process of the State from which such person shall fly, or property be removed." It having been before established that the Potowmacke is within the Jurisdiction of the State of Virginia, the conclusion which forces itself on the mind respecting the operation of this clause, is too plain to be commented on.

"For the reasons above state, I am humbly of this opinion that, whenever any vessels shall commit an offence on the waters of the Potowmacke against the Commercial Regulation of Virginia, they may be taken, by legal process, from the said State on any part of the Rivers Potowmacke and Pocomoke, or of the Bay of Chesapeake, where the Jurisdictions of the two States are concurrent: provided, such vessels be on float, or are lying between high and low water mark; and thus, vice versa, with respect to Maryland."

[It seems clear that Innes is generally talking about the tidewater portion of the Potowmack. Vessels from foreign ports, other than Maryland, would naturally be below tidewater. However, Innes' reference to article four of the compact raises some questions. Article 4 says that any ships below a certain size belonging to citizens of Maryland or Virginia and carrying only the produce of those states may enter ports of the other without paying any tonnage duties. Conceivably this could refer to trade between the two states across the Potomac above tidewater. The port bills (Henings misc.) establish certain ports as ports of entry though, and they are below tidewater. However, the port bills seem to refer only to foreign ships, so it's really not clear.]

August-September 1787 Extracts from a Journal Kept by Bolling Start, pp. 378-88

[Stark was some type of naval inspector and kept this journal "when on a recent visit to the eastern frontier of the State in August and September, 1787, intended partly to examine into the proceedings of the naval officers and searchers."]

Aug. 26, 1787, p. 381

I found, by a misapprehension of the Compact law, he [Mr. Gibb, naval officer at Onnancock] had violated it in two instances, by demanding the tonnage on two Maryland vessels under 50 tons. I directed him to return this money by the first opportunity, and make the best apology he could to the injured persons.

4 June 1788 J. Parker, Naval Office, Norfolk, to Gov. Randolph, pp. 448-49

He is sure that many goods are imported into the State from Maryland which are never entered, but are smuggled into inlets where there is no searcher. . . A quantity of Rum had lately arrived at that place from Alexandria which had been sold much lower than their merchants can afford it for. The number of vessels this year to Maryland exceeds any former time, and our imports has lessened extremely. The goods imported into Maryland are consumed in this State, consequently Norfolk loses the business legitimately her own, and the revenue from customs is thereby much diminished. He does not know how this State of things can be changed, unless under the compact law between Maryland and Virginia certain vessels are precluded from importing goods of foreign production or manufacture.

24 November 1788 Rich'd Taylor to Lt. Gov. Beverly Randolph, p. 518

Mr. Barron, in the Liberty, detected a small flat at Alexandria landing one Hogshead of Rum; got of[f] 4 others before they were discovered. Mr. Barron, with consent of owner, sold the flat at public sale for £10. . . . The Boat Liberty sets of[f] for her station up Potomack to-morrow.