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TABLE SHOWING WHERE THE CASES OF PRI- Aug. 1 VATE PRACTICE OCCURRED.

REGISTER OF PENNSYLVANIA.

DEVOTED TO THE PRESERVATION OF EVERY KIND OF USEFUL INFORMATION RESPECTING THE STATE.

EDITED BY SAMUEL HAZARD,

VOL. X.-NO. 9. PHILADELPHIA, SEPTEMBER 1, 1832. NO. 244.

PUBLIC DOCUMENTS RELATIVE TO THE NAVIGATION OF THE DELAWARE. (Continued from page 121.)

either state authorizing any obstruction of the navigation, without the concurrence of the other. Such a policy, if adopted, will insure a free and open navigation of the Delaware, will preserve harmony between the In Senate, November 17th, 1815. two states, and will promote the best interests and views of the citizens in general, however it may interTo his Excellency, William S. Pennington, Esq. Go-fere with particular individuals, who from cupidity, or vernor of the state of New Jersey. other motives, may desire to appropriate permanently Sir-The undersigned, commissioners of the Com-to themselyes, that which should be common to all. monwealth of Pennsylvania, appointed by his Excellency, the Governor of said Commonwealth, the 15th day of March, 1815, in pursuance of a resolution of the Senate and House of Representatives of the Commonwealth aforesaid, passed the 13th day of March, in the same year, to view, in conjunction with your Excellency, that part of the river Delaware, in which a wingdam is authorized to be erected by an act of the Legislature of New Jersey, passed the 4th of February, 1815, and to cause an accurate survey of that part of the river to be made, having in conjunction with your Excellency, performed that duty, deem it proper before they make a report to the Governor of Pennsylvania, as they are enjoined to do, to ascertain whether there is any difference of opinion, and if any, what it is, between your Excellency and the undersigned, respecting the rights and powers of the two states respectively, to control the acts of each other, when those acts in their very nature, if carried into operation, must necessarily obstruct, impede or embarrass the free and open navigation of the river Delaware; and whether there is any difference of opinion respecting the true construction of the agreement made between the two states, by commissioners for that purpose appointed, and ratified by the Legislature of New Jersey, on the day of May, 1783, and by the Legislature of Pennsylvania, on the 20th of September, in the same year. They therefore submit to your Excellency's consideration, the opinions they entertain on those subjects, which they believe to be of the highest importance to the preservation of the free navigation of the river, and of which there should if possible, be a clear and distinct understanding between the two states, and the citizens thereof.

If this view of the subject, should be deemed incorrect by your Excellency, the undersigned consider the agreement made between the two states, in 1783, as putting the question at rest. By the first article of that agreement, it is declared that the river Delaware between certain points, "in the whole length and breadth thereof, is, and shall continue to be, and remain a common highway, equally free and open for the use, benefit, and advantage of the said contracting partics." This stipulation, it is believed, restrains any one of the parties from exercising the power attempted by the Legislature of New Jersey, by the act in question, without the concurrence of the other. If any doubt could be entertain ed, of this being the true construction of that clause, it would only be necessary to advert to the proviso attach ed to the same article, by which a right of minor importance, and of a temporary nature, compared to the one attempted to be exercised by the act in question, is particularly, and specifically excepted from the opera tion of the general clause, and reserved to each state. It is believed the Legislature of Pennsylvania have uniformly acted upon the construction suggested, and have never passed a law authorizing the erection of a dam in the river Delaware, although many individuals have ventured to do it at their own risk, without any authority. Any other construction, it is believed, will endanger the peace and harmony which has hitherto existed between the two states, will in all probability, involve them in unpleasant controversies, and may compel the judiciary to decide on the legality of an act of New Jer sey. All which may be avoided by suspending the ope ration of the act in question, until Pennsylvania shall by law, have sanctioned the erection of the dam.

The undersigned suggest to your Excellency, that the provisions of the act of New Jersey, are not suffi ciently explicit to secure to the citizens any benefit from the proposed locks; the length should have been mentioned, a person should have been compelled to open and shut them within a given time after the blow ing of a horn, and many other regulations, which will readily suggest themselves to your Excellency, should have been made.

The free navigation of the river Delaware, is of the utmost importance to both sides. It is particularly so to Pennsylvania: it is the only good navigable stream which runs immediately to the only seaport she possesses. A state which know its rights, and sees its interest, may be reasonably expected to be very jealous of every infringement of those rights, and of every illegal obstruction to the pursuits of its interest. Both states are deeply interested in preserving the navigation free from every kind of obstruction. If one of the states without consulting the other, may at their discretion, authorize obstructions, where is the limitation at which she must stop? It may be said at that point, to exceed which would injure the navigation; but who is to judge? if the state passing the act, then there is nothing to prevent her authorizing obstructions destructive of the best interests of the state. What is to control her acts? A sense of justice. Experience has proved too often, that it is insufficient. An absolute veto in Trenton, 10th October, 1815. each state to the acts passed by the other, in reference Gentlemen-Your communication of the 2d instant, to the river, is essential to the security of the rights of was received by me on the 7th. As the communication each. Sound policy, it is believed, would prohibit from his Excellency, Governor Snyder, covering the re

VOL. X.

17

The undersigned will receive with pleasure, any ob servations of your Excellency, on this interesting sub. ject. They beg your Excellency to accept of their personal respect, and are, with great consideration, Your Excellency's humble servants, JOHN ROSS, WILLIAM MITCHELL.

October 2d, 1815.

solution of the Legislature of Pennsylvania, was not re-
ceived by me until after the adjournment of the Legis-
lature of New Jersey, it must readily occur to you, that
any thing that I may say on the subject matter of such
communication, cannot have a binding effect on the
state of New Jersey, for want of legislative sanction.
The measure adopted by the Legislature of Pennsylva-
nia, in appointing commissioners to view that part of the
river supposed to be affected by the act complained of,
manifests a spirit of conciliation, which cannot fail to ex-
cite corresponding feelings. The urbanity with which
you have executed the commission, it would be a failure
of respect on my part, not to acknowledge. The whole
of the proceeding relative to this business, will be laid
before the Legislature at its annual session, the fourth
week in this month, at which time, no doubt but it will
receive such consideration as its importance requires.
As you appear to expect from me an opinion on the
construction of the agreement entered into between the
two states, it may not be thought assuming too much on
myself, to comply with that expectation, subject how-
ever, to the qualification before mentioned, that such
opinion cannot have a binding operation on the state of
New Jersey.

That the river Delaware lying between the two states,
shall in length and breadth, be and remain a common
highway, appears to me to result from the principles of
general law, independent of any pact or convention be-
tween the states bordering on it; and although the agree-
ment does not lessen the right, but fully recognizes its
binding authority, and may be said to strengthen the
obligations of the contracting parties to the observance
of it, yet it does not change the import of the words,
common highway, when applied to a navigable river,
which can mean nothing more than a passage, or com-
mon highway, for the purposes of navigation; that is, a
free, unobstructed, and uninterrupted navigation of the
river; but this does not in my apprehension, take from
either state, the rise of its shores for the purposes of
wharves, docks, banks, and dams, necessary for the
public good, and the exercise of a beneficial industry.
I admit that this is a subordinate right, and must be so
exercised, as not to violate the superior right of naviga-
tion. If the agreement under consideration, is to
receive such construction as to impose a prohibition to
the occupation of any portion of the land over which
the waters of the Delaware flowed at the time of the
contract, or since, permit me to ask, what is to become
of a great portion of wharves and docks erected in front
of the commercial city of Philadelphia? You admit that
the citizens of Pennsylvania have erected dams on their
own shores: if this is an injury done in New Jersey,
and a violation of the compact made between the two
states, that it was done at the risk of individuals without
legislative authority, would not furnish a satisfactory
explanation, for its being a matter of public notoriety,
the state of Pennsylvania in good faith would have been
bound to punish its citizens for transgressing a public,
solemn engagement of the state. That this was not
done, can be accounted for in no other way, than that
the received opinion is, that the contract had not been
touched, and as a consequence, no injury done to New
Jersey. I cannot but indulge an opinion, that on reflec-
tion, you will be convinced that the position you have
taken, that every act respecting the river requires the
concurring assent of each state, covers too much ground,
and that a construction comporting in substance with
the one suggested above, will be found to form the
most practicable, if not the most reasonable rule.
Should you eventually concur in this opinion, the inqiu-
ry will be narrowed to a single point, whether a dam
erected so as to connect Yard's island with the main
land at Bloomsburg, will injure the navigation of the
river or not. The Legislature of New Jersey at the
time of passing the law complained of, was of opinion
that it would not. A respect for the Legislature of
Pennsylvania will, without doubt,induce a reconsideration

of the question, in doing which, I am persuaded that your construction of the contract will also be duly considered.

I have the honor to be, gentlemen, with great per-
sonal respect, your very humble servant,
W. S. PENNINGTON.

The honorable John Ross, and
William Mitchell, Esquires.

Centre Bridge, Feb. 8, 1816.
Dear Sir Enclosed are the papers of correspon-
dence between his Excellency, William S. Penning-
ton, Esquire, Governor of the state of New Jersey, and
John Ross, Esquire, in conjunction with myself, ap-
pointed by your Excellency, in pursuance of a resolu-
tion of the Senate and House of Representatives, as
commissioners on the part of Pennsylvania, to confer on
the subject of a wing-dam, authorized to be erected in
the river Delaware, by an act of the Legislature of the
state of New Jersey, together with the return of survey
and draft of the contemplated site, and parts adjacent,
and our report relative thereto, which from extraordina-
ry causes, I have been prevented from reporting before.
I am with great esteem, very respectfully, sir, your
obedient servant,
WILLIAM MITCHELL.

To his Excellency, Simon Snyder, Esq. Governor of the Commonwealth of Pennsylvania. To his Excellency, Simon Snyder, Esq. Governor of the Commonwealth of Pennsylvania. Sir-The undersigned, commissioners appointed by your Excellency, the 15th day of March, 1815, in pursuance of a resolution of the Senate and House of Repre sentatives of the Commonwealth of Pennsylvania, passed the 13th day of March, in the same year, to view, in conjunction with the Governor of New Jersey, that part of the river Delaware in which a wing-dam is authorized to be erected by an act of the Legislature of New Jersey, passed the 4th day of February, 1815, and to cause an accurate survey of that part of the river to be made, and to return the same to your Excellency, together with their opinion, whether the contemplated dam will be such an obstruction to the navigation and free use of the river Delaware, as in any way to violate or infringe the agreement entered into on the 26th day of April, 1783, between the commissioners appointed by the Legislatures of the states of Pennsylvania and New Jersey, have the honor to report, that they have in conjunction with the Governor of New Jersey, viewed that part of the river Delaware, in which a wing-dam is authorized to be erected by an act of the Legislature of New Jersey, passed the 4th day of February, 1815, and have caused an accurate survey to be made of the same, which is herewith returned, identified by the signatures of your commissioners. That on the 29th of August, when the river was very low, and when the survey was made, the breadth of the stream, on the east side of Yard's island, or the gravel bar, was only twelve perches; but on the 26th of September, when the rise in the river was only about three feet, the breadth of the stream on the east side of the island, or gravel bar, was forty-four perches, and the island or bar itself was completely overflowed. According to the best estimation your commissioners could form, a rise of about two feet would overflow the island, and the whole forty-four perches lying between that and the bank of New Jersey, as designated in the draft.

On the 2d of October, the undersigned addressed a letter to the Governor of New Jersey on the subject, in which, (although not expressly authorized,) they sug gested such opinions, and made such inquiries as they deemed necessary, to a fair understanding of the respec tive pretensions or claims of the two states, individually, to interfere with the navigation of the river Delaware, a copy of which letter, and his Excellency's answer, are herewith transmitted. They will disclose to your Ex

cellency, the different views of the Governor of New Jersey, and your commissioners, of the true construction of the compact made between the two states.

When his Excellency's letter was received, he had ceased to be Governor, and there was no opportunity left to your commissioners, of returning an answer; but it may not be amiss, now to observe, that in tide water, wharves legally constructed, ought not, perhaps, to extend beyond low water mark, the boundary to which, it is believed, the soil was sold to individuals, and that wharves erected in tide water, always improve the navigation; but in the stream, every encroachment from the shore into the river, obstructs and impedes the ascension of it.

To secure the free and uninterrupted navigation of the river Delaware, the compact made between the two states, must be so construed, and such is the true construction thereof, in the opinion of your commissioners, that each state is hereby restrained from doing any act on, or exercising any power over the river Delaware, without the concurrence of the other, unless done in conformity to the reservations contained in the agreement. This construction, it is believed, has been recognized by both states in the concurrent acts of Assembly, authorizing the building of bridges, regulating fisheries, prohibiting fish-baskets, and providing against the obstruction of the free navigation of the river. From this view of the subject, your commissioners are of opinion, that the contemplated dam will be such an obstruction to the navigation and free use of the river Delaware, as to essentially violate and infringe the agreement entered into on the 26th day of April, 1783, between the commissioners of the two states respec. tively.

and attempted to be carried into operation by the Le-
gislature of New Jersey, by the act in question, will,
if submitted to, be destructive of the free navigation of
the river Delaware, subversive of the agreement itself,
and of one of the most invaluable rights of Pennsylvania.
JOHN ROSS,
WILLIAM MITCHELL.

January 16, 1816.

IN SENATE Saturday, March 9, 1816. Mr. Erwin, from the committee to whom was referred on the 14th February, so much of the Governor's message, as relates to obstructions in the river Delaware, made report, which was read as follows, to wit. That they have carefully examined, and deliberately considered the report of John Ross, and William Mitchell, Esqs. commissioners appointed by the Governor of this state, in pursuance of a resolution, passed the 13th day of March, 1815; also, the correspondence between them and the Governor of the state of New Jersey-the compact entered into on the 26th day of April, 1783, between the commissioners of New Jersey and Pennsylvania-the several acts of assembly of this state, in any wise relating to the river Delaware and its navigationthe acts of the Legislature of New Jersey, entitled "an act to enable Daniel W. Coxe, Samuel Wright, jun. and Peter I. Smith, and the survivors or survivor of them, his or their heirs or assigns, to erect a wing-dam in the river Delaware, to connect Yard's island with the main land of Bloomsbury," passed the 4th of February, 1815, and the supplement thereto, passed on the 10th Februarv, 1816.

That your committee consider the enactment of said supplement, as tending equally with the original act, to authorize as far as the Legislature of New Jersey can do it, a direct and palpable infraction of the agreement entered into by the commissioners, and ratified by the two states, and attended with this peculiar aggravation, that it has been done after commissioners had, at the request of the Governor of New Jersey, been appointed by virtue of the resolution of the 13th of March, 1815, to ware, in which a wing-dam had been authorized by the Legislature of that state, and had on so viewing the same, found that the operation of said act, would, as they have since reported to the Governor of this state, be destructive of the free navigation of the river Dela. ware, subversive of the aforesaid agreement, and of one of the most invaluable rights of Pennsylvania.

The Legislature of New Jersey, by the condition upon which they authorize the erection of the contemplated dams impliedly, if not expressly, acknowledge the erection thereof, will be an encroachment on, and an infringement of the agreement, and the free navigation of the river. That condition is as follows. "Upon condition that they, the said Daniel W. Coxe, William Wright, jun. and Peter I. Smith, or the survivors or sur-view, in conjunction with him, that part of the Delavivor of them, his or their heirs or assigns, shall form, build, and complete a lock in the said dam, where it crosses that part of the river Delaware, which runs on the east side of Yard's island aforesaid, of such size, dimensions, and constructions, that Durham boats of the largest burden, and other craft that have been accustomed to navigate that part of the said river Delaware, may pass up and through the same with ease and safety, the said lock to be not less than twenty-five feet wide."

The committee further observe, that by virtue of the existing laws of Pennsylvania, from its earliest settlement, at the date of the said agreement, and down to If that part of the river contemplated to be dammed, the present time, it has been the universal practice,sanchas been accustomed to be navigated, the Legislature of tioned by usage of the law, to erect wharves and piers on New Jersey have no right, without the consent of Penn- the shores of the Delaware, both in New Jersey and sylvania, to say it shall in future, not be navigated, or Pennsylvania, at Chester, Gloucester, Fort Mifflin, if navigated, it shall be in a different manner, or upon Camden, Philadelphia, Burlington, Bristol, Bordentown, different terms from what it has been accustomed to be, Lamberton, and other places below the falls of Trenton, or subject to regulations or locks, as they in their wis- for promoting the navigation of the said river, and gi dom may think proper to establish, and yet this is pre-ving a facility to the landing, unlading, mooring, and cisely what the Legislature of New Jersey have under-securing ships, bay and river craft, and boats, as was taken to do. well known to the commissioners and legislatures of both states in 1783, who could never have intended, by the general words of their agreement, an ademption of this known and necessary usage of the inhabitants of either state, bordering upon the said river; nor have the numerous wharves and piers existing before, or erected since the date of the said agreement, ever been remonstrated against, or considered by the Legislature or people of either state, as in any degree contravening the spirit, meaning, or terms of said agreement, when duly considered and construed, with reference to the manifest purposes and subject matter thereof.

The circumstance of a lock being necessary in the contemplated dam, is sufficient evidence of its interfering with the free navigation of that part of the river. Pennsylvania should not suffer her citizens to be interrupted in the free navigation thereof, or to be subject to regulations or restrictions, without being consulted as to their propriety or expediency. The dimensions of the lock, its adaptation to the uses intended, and the penalties under which it should be attended and kept in order, are subjects of too much importance, to be entrusted to the exclusive legislation of New Jersey, even in a case where a dam and lock properly constructed and regulated, might not be objectionable.

Your commissioners are of opinion, that the construction of the agreement contended for by the Governor,

But your committee cannot conceive that an agree. ment that the river Delaware from the station point, or north-west corner of New Jersey, northerly to the place upon the said river, where the circular boundary of the