EXCERPTS FROM THE PAPERS OF JAMES MADISON

Volume 9: April 1786 - May 1787

12 August 1786 To Thomas Jefferson (from Philadelphia), pp. 93-99

pp. 93-94: "I had the additional pleasure here of seeing the progress of the works on the Potowmac. About 50 hands were employed at these falls or rather rapids, who seemed to have overcome the greatest difficulties. Their plan is to slope the fall by opening the bed of the river, in such a manner as to render a lock unnecessary, and by means of ropes fastened to the rocks, to pull up and ease down the boats where the current is most rapid. At the principal falls 150 hands I was told were at work, and that the length of the canal will be reduced to less than a mile, and carried through a vale which does not require it to be deep. Locks here will be unavoidable. The Undertakers are very sanguine. Some of them who are most so talk of having the entire work finished in three years. I can give no particular account of the progress on James River, but am told it is very flattering . . . A negociation is set on foot between Pena. Maryd. & Delaware for a can from the head of Chesapeak to the Delaware . . . I am told that Pena. has complied with the joint request of Virga. and Maryland for a Road between the head of Potowmac and the waters of the Ohio and the secure & free use of the latter through her jurisdiction. These fruits of the Revolution do great honour to it."

13 September 1786 Tench Coxe to the Virginia Commissioners at Annapolis (from Annapolis), pp. 124-26

pp. 124-25: "Prior to the receipt of the Act of Virginia leading to a general Convention of the States, the Governmt. of Pennsylvania had in contemplation the Assimilation of those Commercial Systems, which have been adopted for a time by the several States.

"Tho' difference of Circumstances has led to dissimilar regulations, it was thought that none should be adopted, which might be found to militate against the fundamental and essential principles of the Union.(1) . . ."

p. 126: Ed. Note 1: "Then Pennsylvania legislature was among the first to sense the latent dangers in individual state commercial controls. . . JM was aware of the need to bring Pennsylvania into the negotiations with Maryland over commerce on Potomac, and had offered a resolution inviting Pennsylvania's participation in the conference eventually held at Mount Vernon" (cites Resolution of Dec. 28, 1784, JM Papers, 8:206-7)

[The editor again reiterates his INCORRECT interpretation of the Dec. 28 resolution; see notes from vol. 8.]

23 September 1786 From George Muter (from Mercer), pp. 131-32

This letter concerns an act passed by the Virginia legislature providing for the establishment of Kentucky as an independent state. In discussing this act, Muter says:

p. 132: "I expect too, from having the sentiments of many, that application will be made to the Assembly to explain the expression of 'The respective jurisdiction &C on the river as aforesaid, shall be concurrent only &C.['] which is used in the seventh clause or section of the Act [see below for text of this section of the act]. The freedom of navigation they fully agree to, but they think that if the jurisdiction is concurrent with the State on the other side of the river, it will be productive perhaps of confusion & mischief; and they think that by the limits of the district, as settled by the cession of Congress, the whole of the Ohio, as far as the District extends is within it, as Potowmack is, or was, in Maryland."

[An act concerning the erection of the district of Kentucky, into an independent state, Chap. IX, October 1785, Hening's Statutes, vol. 12, pp. 37-40. Sec. 7 of Art. II provided (p. 39) "That the use and navigation of the river Ohio, so far as the territory of the proposed state, or the territory which shall remain within the limits of this commonwealth lies thereon, shall be free and common to citizens of the United States; and the respective jurisdictions of this commonwealth, and of the proposed state, on the river as aforesaid, shall be concurrent only with the states which may possess the opposite shores of the said river."]

30 September 1786 From Caleb Wallace (from Mercer County), pp. 136-37

This letter concerns the act for the separation of Kentucky.

p. 136: "We also conceive that as the State of Virginia have only ceeded to Congress the Lands on the N. W. side of the Ohio and not the River itself, The States which may be established on that Side cannot claim a Concurrent Jurisdiction thereon with us, and that Liberality on our Part requires that the Citizens of the United States be permitted to enjoy the free Navigation thereof; whereas to allow them more wold only lay the Foundation for Confusion and Discord. Therefore we Wish that the last Clause of the 7th. Article of the Act of Separation (5) may be repealed or so explained as to prevent the Consequences I have mentioned. Afterwards I do not expect the Convention will make any Objections to the Conditions proposed."

p. 138: Ed. Note 5: Hening, Statutes, XII, 39.

16 December 1786 From Thomas Jefferson (from Paris), pp. 210-14

p. 212: "With respect to the proposition about the purchase of lands, I had just before made the experiment desired. It was to borrow money for aiding the opening of the Patowmac, which was proposed to me by Genl. Washington. I had the benefit of his name, & the foundation of a special act of the assembly. I lodged the papers in the hands of Mr. [Ferdinand] Grand [in Paris] to try to obtain money on loan at 6. per cent. assuring him that the securities should be made compleatly satisfactory to the lenders. After long trial he told me it could not be done. . . ."

7 January 1787 To George Mutter (from Richmond), pp. 230-31

pp. 230-31: "Your favor of the 23d: of Sepr. [received]. I regret much the event which has probably delayed the decision of your Convention on the great point referred to them [ie. Kentucky's independence] . . . The Act (2) which has passed at this Session will I hope remove every doubt of the Legislature's desire to give effect to the former Act. . . The Objections made to the 7th. art: (3) do not appear to me to be well founded. A concurrent jurisdiction is both practicable and equitable. The Delaware as well as the Potomac furnish examples of it. The law of Nations is explicit on the subject. And taking into view the case of the Mississippi, Kentucky is the last part of he World from which I should have expected to hear of doctrines which impeach the equal & reciprocal rights of the owners of opposite shores, over the stream itself. You will learn from the Representatives of your district the measures taken with reference to the projected Treaty with Spain. Whether this project will go on in Congress, will depend on the temper of the New members . . . Would Kentucky purchase a free use of the Missipi. at the price of its occlusion [to close or shut out] for any term however short?"

p. 231: Ed. Note 2: See Bill Providing for Kentucky Statehood, 15 Dec. 1786.

[An act making further provision for the erection of the district of Kentuckey into an independant state, chap. IV, Oct. 1786, Henings, vol. 12, pp. 240-42, extended the time for the holding of a convention to establish independence of Kentucky under the same terms as the previous act passed Oct. 1785 session (above)].

p. 231: Ed. Note 3: See Muter to JM, 23 Sept. 1786.

20 February 1787 From George Muter (from Mercer County, Ky.), pp. 279-82

p. 280: "I am perfectly satisfied on the propriety of the 7th. Art: your reasonings have convinced me my doubts (for it went no farther with me) were wrong. I find too, that many others with whom I have conversed on that subject since I received your letter, agree with me in opinion."

pp. 280-81 "Our people here are greatly alarmed at the prospect of the navigation of the Mississippi being given up . . . For my own part, although I wish for the right of the navigation's being secured to the Citizens of the United States, yit I could wish to see the people of the western country in general . . . make, but a sparing use of it. I am satisfied, foreign commerce can never be beneficial in any considerable degree, to a people so far removed from the sea; and that it must be ruinous, if the people are engaged in raising a rough materail. . . This country, in my opinion, must be principally employed in manufacturing their own necessarys . . ." (9)

pp. 283-84: Ed. Note 9: Muter may have been influenced by such men as GW, or John Marshall, who wrote to him that should the communication between the James and Potomac rivers and the western waters be established and "should Mr. Rumsey's scheme for making boats to work against the stream answer the expectation of our sanguine gentlemen, the communication between us will be easy, and we shall have but little occasion to contest the navigation of the Mississippi" (Marshall to Muter, 7 Jan. 1785, Tyler's Quarterly, I [1919-20], 28).

[It might be worth looking into Marshall's correspondence].

13 March 1787 Notes on Debates, pp. 309-11

pp. 309-11: "Memor[an]dum. Called with Bingham to day on Mr. Guardoqui, and had a long conversation touching the Western Country-the navigation the Mississpi-and commerce; as these objects relate to Spain and the U.S. . . . Mr. Guardoqui would not listen to the idea of a right to the navigation of Mississpi by the U.S. contending that the possession of the two banks at the mouth shut the door agst. any such pretension. Spain never would give up this point. . . . In speaking of the Mississpi and the right of Spain he alluded to the case of the Tagus which Spain had never pretended to a right of navigating thro' Portugal. It was observed to him that in estimating the rights of Nations in such cases regard must be had to their respective proportions of territory on the River. Suppose Spain held only 5 Acres on each side at the mouth of Missipii wd. she pretend to an exclusive right in such case? He said that was not the Case; Spain had a great proportion. How much? After some confusion & hesitation he sd. she claimed at least as far as the Ohio. We smiled, & asked how far Eastwardly from the Mispi. He became still more at a loss for an answer, & turned it off by insinuating that he had conversed on that matter with the Secretary of F. Affairs.(6)

p. 311: Ed. Note 6: See the maps showing the maximum and minimum claims of Spain to territory east of the Mississippi in Bemis, Pinckney's treaty, opposite p. 77.

[April-June] 1787 Vices of Political System, pp. 348-58

pp. 348-49: "2. Encroachments by the States on the federal authority. 2. Examples of this are numerous and repetitions may be foreseen in almost every case where any favorite object of a State shall present a temptation. Among these examples are . . . The unlicensed compacts between Virginia and Maryland, and between Pena. & N. Jersey--"