Monday, June 15, 2015

Words on Vellum & Paper: The Magna Carta, The Bill of Rights, H. L. Mencken, and F.D.R.

The impact of words on the law, and what is perceived of as rights and privileges shared by the body politic is hardly a myth when it comes to the language of the Magna Carta. What is important about the document is the resilience of its words. The document may have had little immediate impact (apparently the Pope disallowed it and King John ignored it), but its words were persistently carried forward in time to the point where they did, and still do, have meaning in the law and in practice.
In 1987 I presided over a ceremony celebrating the Magna Carta which resulted in an op-ed article I wrote for the Baltimore Sun. Given the recent debate on the significance of the Magna Carta itself, I returned to my original. article (published September 2, 1987) and an essay I wrote (in Greene, Jack P, and Robert J. Haws. The South's Role in the Creation of the Bill of Rights: Essays. Jackson: University Press of Mississippi, 2009) about the importance of the language as it found its way into the Maryland State Constitution in 1776 where it remains embedded to this day For example, see: Art. 24. That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land (amended by Chapter 681, Acts of 1977, ratified Nov. 7, 1978).
Possibly no single document was as well known by name to the Founding Fathers (and the Founding Mothers, such as Abigail Adams), than the Magna Carta which the Barons forced King John to accept on June 15, 1215. It was a "bill of rights" that formed an integral part of the English legal heritage universally accepted by those who created the 13 original colonies. It took some intense lobbying to get a "bill of rights" into the U. S. Constitution, but a number of states, including Maryland had already incorporated language from the Magna Carta into their state constitutions. From 1776 Maryland's declaration of rights contained the provision "That no freeman ought to be taken, or imprisoned, or dis-seized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land." The language in 1215 read "No Free man shall be taken, imprisoned, dis-seized, outlawed, banished, or in any way destroyed,m nor will we proceed against or prosecute him, except by the lawful judgment of his equals or by the law of the land." It may have taken a long time for this principle to become an integral part of Britain's unwritten constitution (1628?), but it was part of Maryland's written constitution from 1776 and the Nation's from 1788.
In 1934, the Gridiron club chose H. L. Mencken to be the spokesperson for the Republican Party at its annual, off the record, roasting of the President of the United States. In that speech Mencken did not refer directly to the Magna Carta and the language embedded in Maryland's state constitution (he would do that on another occasion), but instead he turned to the 1628 Petition of Right the language of which was in part derived from the Magna Carta. On a "Mencken Day" at the Enoch Pratt Free Library, I delivered the following observations on H. L. Mencken's views on Government.

H.L. Mencken, Franklin D. Roosevelt, and the Petition of Right or What Do We Really Know about H.L. Mencken's Views on Government?

It is common knowledge, at least among Mencken devotees, that on December 8, 1934, H. L. Mencken addressed the Gridiron club at the Willard Hotel in Washington D. C. as the spokesman of the 'loyal opposition,' there being no other obvious candidate able, or perhaps willing, to take on the Administration of Franklin D. Roosevelt. In November, the Republican Party had suffered another defeat in the Congressional elections, losing nine seats in the Senate and nine in the House. On paper at least, there was very little that the Democrats could not do. They controlled 72% of the Senate and nearly 76% of the House of Representatives.
It is also common knowledge that President Roosevelt had the last word of the evening as the Guest of Honor. Both speeches were off the record and the 490 guests in attendance were expected not to break the rule.[the number of guests is taken from Mencken's Diary. Other authorities say 400. (Bode)]
The festivities started at 7:20 in the evening (according to Mencken's Diary) and ended only after the President finished his remarks which he began about 11:30 [one authority says 11:15 p.m., but does not indicate where he got his information. (Carl Bode)]. The program opened with the president of the Gridiron Club, James L. Wright, the correspondent of the Buffalo Evening News, delivering "the keynote of the ... show," in darkness as tradition dictated, except for the glow of a lighted gridiron.

Tonight, my friends, [he said], we train our field glasses on the pompons of the political pageant, on fantastic floats and floating fantasies. Colorful events of recent months will pass quickly in review.
Since we last met beneath the golden gridiron, there have been many changes. The Washington Monument has been washed down and the Republican Party washed up.
Dinner followed (with Terrapin Maryland as a featured course, not [as Carl Bode asserts] in honor of Mencken, but as a tradition 'since the early days' of the club [Brayman], interspersed with skits, songs, and the two main speeches. The opener was a Santa Claus skit on the New Deal in which
Every stocking was filled ere the saint turned to go,
And the manna had fallen as thick as the snow;
And they heard him exclaim, as he flew out of sight:
"Merry Christmas to all --- and be sure you vote right!"
to which the chorus sang:
You better watch out, you better be good,
Better not pout, but vote as you should ---
Santa Claus is comin' to town.
He's making a list and checking it twice,
Gonna find out who's treating him nice,
Santa Claus is comin' to town.

No one knows for certain all of what the President said that night. The only person present to write extensively on his speech claims he began by referring to the night's skits and the "the temperateness of" "My old friend Henry" Mencken's "remarks and criticisms" [Brayman], and then launching into a vicious attack on the Washington Press Corps and Journalists in general.

The notes for FDR's speech survive at Hyde Park with his handwritten annotations. Given the outline in his own hand, I suspect that the President did begin with a comment that the customs of the Gridiron Club seemed to be changing, from an opening crash off stage of broken crockery being dropped from one tin container to another, to a more hopeful Santa Claus skit. He probably observed that his old friend Henry's appearance on behalf of the opposition was not unlike the Prodigal Sun (spelled SUN in reference to Mencken's recently joining the management of the Sun papers) coming back to father. He may have even quoted Jim Watson who said "When you can't Like 'em, join 'em." But what everyone remembers best is what the President said about the Press, although no one is certain that he forwarned his audience that the words were not his own.

["Prejudices", Sixth Series:]

Most of the evils that continue to beset American journalism today, in truth, are not due to the rascality of owners nor even to the Kiwanian bombast of business managers, but simply and solely to the stupidity, cowardice and Philistinism of working newspaper men. The majority of them in almost every American city, are still ignoramuses, and proud of it.
I have myself been damned as a public enemy for calling attention, ever and anon, to the intolerable incompetence and quackery of all save a small minority of the Washington correspondents.

["Prejudices", Third series:]

Third-rate men, of course, exist in all countries, but it is only here that they are in full control of the state, and with it of all the national standards....
That the United States is essentially a common-wealth of third-rate men -- that distinction is easy here because the general level of culture, of information, of taste and judgment, of ordinary competence is so low.

At this point in his remarks, the President may well have informed his audience, if they had not been told already, that he had been quoting from his "old friend Henry."

He may even have continued with the remainder of the excerpts he had collected. They were certainly embarrassing enough, especially given audience and the role Mencken had assumed for the evening:

In his "Notes on Democracy", Mr. Mencken says:

"Politics under democracy consists almost wholly of the discovery, chase and scotching of bugaboos. The statesman becomes, in the last analysis, a mere witch-hunter, a glorified smeller and snooper, eternally chanting "Fe, Fi, Fo, Fum'. It has been so in the United States since the earliest days....

"Government under democracy is thus government by orgy, almost by orgasm. Its processes are most beautifully displayed at times when they stand most naked -- for example, in war days. The history of the American share in the World War is simply a record of conflicting fears, more than once amounting to frenzies. The mob, at the start of the uproar, showed a classical reaction; it was eager only to keep out of danger."

"In Defense of Women", published in 1918, Mr. Mencken says, in part:

"What we need, to ward off mobocracy and safeguard the Constitution and a republican form of government, is more of this sniffing. What we need -- and in the end it must come -- is a sniff so powerful that it will call a halt upon the navigation of the ship from the forecastle, and put a competent staff on the bridge, and lay a course that is describable in intelligible terms."

In the Fifth Series of "Prejudices", Mr. Mencken makes this statement:

"A Washington correspondent is one with a special talent for failing to see what is before his eyes. I have beheld a whole herd of them sit through a national convention without once laughing....

"I know of no American who starts from a higher level of aspiration than the journalist. He is, in his first phase, genuinely romatic. He plans to be both an artist and a moralist -- a master of lovely words and a merchant of sound ideas. He ends, commonly, as the most depressing jackass in his community -- that is, if his career goes on to what is called success."

In "Making a President", by Henry L. Mencken, the author made the following political prophecy:

"Roosevelt will probably carry all the Southern States that Al lost in 1928, despite the difficulties that the repeal plank is bound to raise in some of them, but he will certainly lose New York, and there is little chance that he will carry Massachusetts and its tributaries. He may win nevertheless, but if he does it will be by a kind of miracle."

In the same publication, subsequent to the Chicago Convention, Mr. Mencken said: "But Roosevelt won, and now the party begins the campaign with a candidate who has multitudes of powerful and implacable enemies, and is in general far too feeble and wishy-washy a fellow to make a really effective fight." [Roosevelt papers, Hyde Park].

Edgar Kemler writes that the President also read an even worse Menckonian indictment of the press,

There are managing editors in the United States who have never heard of Kant or Johannes Muller and never read the Constitution of the United States; there are city editors who do not know what a symphony is or a streptococcus, or the Statute of Frauds; there are reporters by the thousands who could not pass the entrance examination for Harvard and Tuskegee, or even Yale. [Kemler, p. 271] but there is no record of it in the Hyde Park papers.

Whatever the President actually read of Mencken's words that evening, the performance did not sit well with their author. The entry in Mencken’s diary for December 9 contains no reflections on either his own or the President’s remarks, although two days later he does mention missing a radio talk by Edwin C. Hill who was present at the dinner in which Hill "apparently gave the impression that the affair was much more serious than it was in fact." [Fecher, p. 77]. In a letter written the same day to his friend Sara Mayfield he was somewhat more truthful. "I got in a bout with a High Personage at the dinner and was put to death with great barbarity. Fortunately, I revived immediately and am still full of sin." [quoted by Brayman, p. 19; Mayfield, p. 210].

Possibly even Roosevelt felt he had gone too far in humiliating Mencken before his peers. Marion Rodgers quotes a letter of FDR's to Arthur Bisbane written two weeks after the dinner in which the President claimed that he "did not really intend to be quite so rough on Henry Mencken but the old quotations which I dug up were too good to be true, and I felt in view of all the amazing but cynically rough things which Henry had said in print for twenty years, he was entitled to ten minutes of comeback." [Marion Rodgers, Mencken and Sara, p. 511, no source cited.]

But what about Mencken's speech that night? Despite what the President did to him, was there anything of value, anything of lasting humor in what H. L. Mencken had to say?

At 9 p.m. (according to Carl Bode), or at 10:30 p.m. (according to Edgar Kemler), following a skit set in the lobby of a New Deal Hotel in which prominent New Deal officials were paid off, either for helping the Democrats win in their home states or, like Rexford Tugwell, by asking them to remaining abroad until the Congressional elections were over, Mr. Mencken rose to speak. Perhaps he had some inkling that the President was looking forward to the last word, although there is no proof, as some have asserted that his remarks had to be submitted in advance to the White House. Just before the banquet Mencken had encountered Roosevelt in the dressing room and noted later in his diary that "he called to me and we had a pleasant meeting. He was extremely cordial, bathed me in his Christian Science smile and insisted on calling me by my first name." But If Mencken was worried, he did not show it. He had worked hard at drafting what he wanted to say.

In contrast to what the President may have said, the text of Mencken's remarks is well documented. Carl Bode discovered three versions among his papers at the Pratt, two of which also found their way into the files of the Gridiron Club. That he had been chosen to be the spokesman for the Republican Party is not surprising. In 1932 Mencken voted for Roosevelt as the lesser of two evils. As the plans for the New Deal unfolded he became increasingly wary and outspoken in his opposition to the growth of government and the abuse of executive power. He had never favored big government.

In the only autograph letter of his owned by the Maryland State Archives Mencken responded to Governor Ritchie's plan for reorganizing State Government in 1921 with the observation that he would be: delighted to read the report on State Reorganization.

I hear that it is a fine piece of work. We have been running on aimlessly in Maryland, adding wing after wing to the house until it now looks like a train of freight cars. I hope you manage to lop off at least 50% of the state boards. A board is inevitably inefficient. One man can always do the work better than two, and two better than three, and so on forever.

Nor did his faith in one man extend to unilateral government by a President, as he made clear in the Evening Sun on March 13, 1933, when he reflected upon President Roosevelt's inaugural address:

Mr. Roosevelt's appeal to the American people ... to convert themselves into "a trained and loyal army willing to scrifice for the good of a common discipline," and his somewhat mysterious demand, immediatelhy following, that they "submit" their LIVES as well as their property to "such discipline" ... have met with a hearty response, and almost all of us are now looking forward confidently to that "larger good" which he promised in the same breath. ... But just what the eminent speaker meant by his mention of lives is not clear. ... We have had two dictatorships in the past, one operated by Abraham Lincoln and the other by Woodrow Wilson. Both were marked by gross blunders and injustices. At the end of each the courts were intimidated and palsied, the books bristled with oppressive and idiotic laws, thousands of men were in jail for their opinions, and great hordes of impudent scoundrels were rolling in money. The natural consequences of the Wilson dictatorship still afflict us ... Thus I hesitate to go with Dr. Roosevelt all the way. My property, it appears, is already in his hands, but for the present, at least, I prefer not to hand over my life.

By May, 1933, Mencken felt the only recourse was to propose Roosevelt for King and let the people decide:

... the state of affairs thus confronting the country prompts me to make a simple suggestion. It is that a convention be called under Article V of the Constitution, and that it consider the desirability of making Dr. Roosevelt King in name as well as in fact. There is no constitutional impediment to such a change, and it would thus not amount to a revolution. The people of the United States are quite as free, under Article V. to establish a monarchy as they were to give the vote to women. Even if it be held, as some argue, that the bill of Rights is inviolable and cannot be changed by constitutional amendment, it may be answered that there is nothing in the Bill of Rights requiring that the national government shall be republican in form. Indeed, a three years later, on the eve of an even greater disaster for the Republican Party than the defeat they had suffered in 1934, he would write in dispair Soon or later, of course, [Evening Sun, October 26, 1936, quoted by Mayo DuBasky, Gist of Mencken, p. 470] a true conflict will have to be joined, but apparently the time is not yet. It may be, indeed, that the Rooseveltian or anti-Jeffersonian concept of the government as a milch cow with 125,000,000 teats still has many years to go. Challenging it today, in the full glory of its heyday, is certainly not an enterprise that promises much of a harvest. Later on, after the cow has begun to dry, it should be measurably easier, but there is not much chance that it will ever become anything properly describable as a cinch.

There is no record of how Mencken felt about a being invited to speak to the Gridiron Club, although Marion Rodgers suggests [without documentation] that he was uncomfortable with giving speeches and practiced his address "before Sara, trying in vain to memorize it, until she advised him to read it instead."

The two drafts and the final copy are brief, but vintage Mencken,and provide insight into the process by which the 54 year old sage of Baltimore honed what he hoped would be an appropriate gridiron roast of the President and all he stood for. The first draft, three and a quarter doubled spaced pages would end up as two and a half pages that might take as much as five minutes to deliver. Each successive draft was somewhat less colloquial and anything that seemed even slightly risque was edited out. Gone were the references to a New Deal which "tackles all its problems, whether soluble or insoluble, in the manner of a young fellow necking a new girl," or to good-humored Americans who "thanks to the public schools ... are more ignorant, and hence happier" than Europeans who "seem to be oppressed by a sense of tragic futility, like a blind man in a nudist camp."

What Mencken did say was tastefully humorous, laced with a warning to the New Dealers not to take themselves too seriously. Like Lincoln at Gettysburg, he chose to be brief and to the point:

Mr. President, Mr. Wright, and Fellow Subjects of the Reich:-

Put up this evening to speak for the Rotten Rich, I find myself under considerable embarrassment, mainly of a pecuniary nature. The fact is that we millionaire newspapers reporters have gone downhill like the rest of you, and I question that the net liquid assets of the Gridiron Club at this minute would be enough to make a pint of alphabet soup. The only thing we have left is liberty to doubt what we are told, and that isn't worth much any more, for what we are told is often incomprehensible and hence unanswerable, and even when we can understand it we are told the exact contrary the next day.

But this is not the time to complain, and indeed there is nothing to complain of. For if the flow of ideas is somewhat confusing, it must still be admitted that the show that goes with it is a very good one. Here we come upon one of the really sound and salient merits of the American republic. It is the most amusing country ever heard of in history. Amusing and good-humored. It tackles all of its most horrible problems in the manner of a young fellow necking a new girl, and even its wars produce quite as many comedians as heroes.

When I sit down with a European, which is very often, I am always struck by his solemnity. And when I go to Europe, which is more seldom, I am depressed by the general gloom. The people over there take politics very seriously and indeed tragically, though even the World War seems to have left many of them more or less alive, and more or less able to eat, drink and curse the government. But in this country we take it more lightly. Every American is born with full confidence that it will probably get well, even if you pick it. No matter how wildly he kicks up, he knows that the judge is likely to be lenient in the morning. And if, by any mischance, he finds himself in the hoosegow or even the death house, he know that he has an inalienable constitutional right to bust out.

I often hear people speculating about how long the New Deal will last. As I go about the country preaching in the Sunday-schools and visiting what we Baltimorons calls the kaifs, I am asked the question constantly. I always answer by advising everyone who asks it trust in Providence, which has always fooled us in the past. Or in the Constitution, which is still to be found in the National Museum, stuffed with excelsior and waiting for the Judgment Day. No doubt the bankers are there too, but what they are waiting for I don't know. I could name some other inmates, but refrain on advice of counsel. Which recalls that a learned judge called me up the other day to say that he had found an article of the Bill of Rights that was still in working order. I put his wild talk down to insomnia, the old curse of the judiciary, but he actually read it to me. It was Article III, reading as follows: "No soldier shall, in time of peace, be quartered in any house without the consent of the owner". Certainly this is something. Small oaks from little acorns grow. Some of these days the Constitution may stage a come-back.

But probably not yet. We are still on a honeymoon, and that honeymoon, for all I know, may last a geological epoch. There seems to be a high mortality in the Brain Trust, but its brains apparently renew themselves like the lost claws of a Chesapeake crab. Their functions, also, are not altogether dissimilar. Maybe we are in the darkness before the dawn. Maybe we are out on a limb. Maybe we are still going up. Maybe we have been up, and are now coming down. Maybe we don't know where we are, or how we got there, or how we are ever going to get back.

Some time ago, while Congress was in session, I had the pleasure of showing my pastor over Washington. I took him to the White House, and then down to the Capitol. He listened while both Houses jawed away, and he peeped into the dreadful refrigerator of the Supreme Court. Then he said to me: "My boy, you cherish a chimera if you ever hope to see the smart fellows who now run this great republic turned out. They are ace high at the White House, and they carry the two Houses of Congress in their two vest pockets. I wouldn't go so far as to say that they influence the courts, but nevertheless you may be sure that the judges have heard of them, and know that they pack a wallop. The overwhelming majority of the American people are with them. Rid your mind of any notion that you will ever see them on their way. They will stick until the last galoot's ashore, and then go on sticking until the shore itself sinks beneath the waves of the sea, and is resolved into its prime, hydrogen, ptomaines and manganese. When you lift on at such colossi you make yourself ridiculous. You'll be 10,000 years old before they let go their hold and fade away.

The pastor's words made a powerful impression on me, and for a couple of weeks I kept off politics and devoted myself to writing about moral science. To this day I often think of them. But maybe I should add something. There were uttered a little less than three years ago, in the forepart of the year 1932, and the chimera that the pastor referred to was not the Brain Trust but the Anti-Saloon League.
It's not what is said but what people think was said that too often is remembered, and even then time distorts meaning and perspective. Mencken was thought to have been demolished that night as the national spokesman for the Republican Party. Even he may have thought so at the time. But what of the substance of Mencken's tasteful criticism of the Administration. How accurate were they as tested by time? How well does the biting humor of what he said stand up to the test of time? In 1921 Mencken agreed that a proliferation of State Government was a waste. In 1933 he questioned the use of a zealous army of New Dealers, and at the Gridiron club he semi-seriously pointed to the third Amendment of the U. S. Constitution which protected the citizenry from the quartering of troops in their homes. That Mencken should point to that provision of the Constitution as the last vestige of rights not yet assailed by the New Deal suggests his profound concern about a Government that not only spent more than it could ever afford (thus milking the cow dry), but also about a government that would trample the rights of its citizens in violation of a principle at least as old as the Petition of Right of 1628. There is no evidence that Mencken had ever read the Petition of Right which was presented to King Charles I by Parliament in 1628, but the language of that Petition was worked into the very fabric of English and American Constitutional law, first as a humble plea that King not quarter soldiers in the homes of his people and then as explicit language in the constitutions written for the states and the nation between 1776 and 1790 that carefully set forth the rights Mencken felt were so forcefully challenged by the New Deal.

The Nation may have thought that H.L.Mencken was on the wrong track in 1934, but was he? Franklin D. Roosevelt may have won the battle of wits late that evening in December 1934, but perhaps H.L. Mencken had the last word after all. Perhaps his concerns about government and the course of unrestrained Federal spending and intrusion to the fabric of American society were not so far off the mark. What solace he might have taken in clipping a 1993 article in the SUN about Presidential Candidate Bill Clinton, headlined "Clinton opens war on waste." What fun he might have had with such quotes as "this government is broke, and we intend to fix it," Mr. Clinton said," or "President [Bush], if you want to know why government doesn't work, look behind you." [Baltimore Sun, September 8, 1993.]

Indeed perhaps it is time to look behind us to H. L. Mencken's speech of December 8, 1934, and to his other humorous attempts to focus the public's attention on the fundamentals of what makes for good government. Perhaps it was not an accident that the only humor in the Constitution that Mencken could find for his speech that night was the third amendment to the Constitution, a right so widely accepted that it has never been tested in the Courts, yet when it was first proposed by Sir Edward Coke in 1628 in the Petition of Right, reflected the reality of the King's troops quartered in private homes. Although perhaps it would be going too far to heap upon the Mencken the praise that that other great Maryland Iconoclast, Luther Martin lavished upon Sir Edward Coke for sacrificing "his vanity, his ambition and his avarice." Those characteristics were so much a part of Mencken's being that no manner of public recognition, improved sales of his publications, or government reform could have ever persuaded him to be otherwise.

Monday, June 1, 2015

Who 'owns' the waters of the Potomac River?

[The following is derived from a talk I gave to the Washington Map Society in 2009. Given the recent media attention concerning the depletion of the world’s water resources this essay, perhaps, has more relevance than I thought when it was originally presented.]

Maps, Water Rights and Regulation: Thomas Jefferson, James Madison and the Battle over the Waters of the Potomac River

© Edward C. Papenfuse, Maryland State Archivist and Commissioner of Land Patents, emeritus

There is an ancient proverb made popular by Benjamin Franklin that runs:

For want of a nail the shoe was lost;

for want of the shoe the horse was lost;

and for want of a horse the rider was lost.

-- Thoughts by Benjamin Franklin from Poor Richard's Almanac, or from his letters, on life and prosperity.1

A title for this essay might more appropriately be “For want of a Map the Case was Lost.”

The U. S. Supreme Court case of Virginia vs. Maryland (Virginia v. Maryland, 540 U.S. 56 (2003) over what governmental entity has the right to regulate the consumption of water from the Potomac cannot be resolved as simply as finding an accurate, reliable map of jurisdictional boundaries. There are complex issues of 'riparian rights' and 'reasonable use,' not to mention efforts to apply an old principal of littoral rights, usually reserved for any body of water except a river, and the international law concept of Thalweg, which places nation state boundaries in the middle of shared rivers.2 Yet in writing about why Maryland lost the case in the Baltimore Daily Record, Andrew Baida, who argued the case for Maryland before the Supreme Court, contended that it was a single map that contributed mightily to his clients defeat.3

In attempting to deal with the questions of water rights and their regulation, the lawyer and the historian are faced with a many headed hydra of differing opinions, legal and otherwise. For the layperson the overview of the problems of water regulation provided by the online Water Encyclopedia is informative, if discouraging.4

Surface water and groundwater are transboundary resources that often cross political boundaries. Generally, under the United States' federal system of government, no single governmental level has absolute sovereign authority over water. Effective implementation of water policies requires coordination among all levels of government, various administrative commissions, and regional independent agencies.

A complex legal and administrative framework controls how federal, tribal, state, and local governments share legal authority over water quality and quantity, as well as over broader water development and management issues. This system is based on common law, constitutional and statutory law, local custom, judicial decisions, and international treaties. Accordingly, different governmental levels have primary authority over certain water issues. The federal government has undisputed sovereignty to develop and manage navigation on interstate or international bodies of water used for commerce. Conversely, primarily state or local governments govern intrastate water quantity and quality issues. Between these extremes, each level of government vigorously guards its authority as the balance of power fluctuates to meet changing water priorities.5

One of the best studies of the complexities of dealing with the Potomac River, one of three principal rivers on the Western Shore wholly within the 1632 Charter boundaries of Maryland, was published in 1976. It was entitled Legal Rights in Potomac Waters. Proceedings of a Conference at Harper's Ferry, West Virginia, sponsored by the Interstate Commission on the Potomac River Basin and the Maryland Department of Natural Resources, edited by Professor Garrett Power. In his foreword, Professor Power outlined the principal questions posed by the conference, questions that in large measure today remain largely unanswered:

Taken together, the papers pose the water supply issues facing the Potomac Basin, ranging from general to specific:

Is there a need for an agency with overall water resource planning and management powers in the Potomac Basin? If so,how should it be organized and financed? How should water be priced in the Washington metropolitan area? Is the area in fact "water short"? If so, is the problem one of base flow, peak demand, or both?

Should the dams and reservoirs proposed by the Army Corps of Engineers for Bloomington, Sixes Bridge and Verona be constructed? If so, when? Do the States of West Virginia and Pennsylvania have the power to divert Potomac waters into other basins? If so, are there any legal constraints on such authority and what are they?

Under present law, must Virginia and the Corps of Engineers obtain permission from the State of Maryland before appropriating Potomac waters? If so, can Maryland prerogatives be diminished without its consent?

Must specific statutes of the various states be changed in order to achieve an economically efficient allocation of water resources? If so, which laws need be modified? The papers which follow analyze these questions in some detail. A great deal more work may provide some answers. 6

In the intervening years insufficient resources have been allocated to water resource management generally, a matter addressed by the New York Times series on America's toxic waters, and Maryland has had great difficulty in asserting regulatory authority over the waters of the Potomac, which forms its southern boundary.7 In the era of the American Revolution, no one was more of an expert on the latter issue than Thomas Jefferson of Virginia who spent time in Annapolis researching Maryland's Charter and laws on the topic and instigated the discussions that led to the 1785 Mount Vernon conference on the regulation of the Potomac.8

One of the trick questions that is fun to ask visitors to Annapolis is "who was the first president to live in the White House?" If the visitor had watched the Adams Family chronicles on HBO, or visited the White House web site, the answer would be quick and decisive: John Adams. Not so. The first future president to live in a dwelling in Annapolis called the "White House" was Thomas Jefferson. He lived there while attending Congress as a delegate in the Winter and Spring of 1783-1784, before being sent to France as our representative at the Court of Louis the XVI.9

While at the White House in Annapolis, Jefferson put the finishing touches on his Notes on Virginia, in addition to his official duties which included authoring the two ordinances governing the settlement of the Ohio country, writing the protocol by which George Washington made his bow to civil authority by resigning his commission as commander in chief, and composing the text of the Congressional proclamation announcing the ratification of the Treaty of Paris ending the Revolution. Jefferson had the official first word, and the official last word in the war for independence with his Declaration of 1776 and the Proclamation of Peace, of 1784, but he could find no one in Annapolis willing to publish his Notes. As he wrote Madison, "I could not get my notes printed here, & therefore refer it till I shall cross the waters where I will have a few signed struck off & send you one." 10 That meant that he would attend to such details as a map to accompany the Notes when he got to Paris. The consequences for the debate over the ownership of the Potomac would be important. In citing Jefferson's Notes on the question, reference would be made by both Virginia and Maryland to the text of the European edition, and not those published on Jefferson's return to the States. All would ignore the maps which were drawn to accompany each edition. To be sure, the Virginia Counsel in the 2003 Supreme Court case, Stuart A. Raphael, was aware of the American editions of the map, and reminded me of their existence, but neither side brought them into the argument before the court, nor had they been examined by any of the several preceding efforts to resolve the conflict. All of us would have done well to have read Coolie Verner on the subject to familiarize ourselves with the importance Jefferson placed on the accuracy of his maps to accompany his Notes, and the choices made for the American editions that followed the adoption of the Compact of 1785.11

In the long struggle between Virginia and Maryland over the ownership and use of the Potomac, Jefferson did not have the first word, but perhaps he should have the last, despite a 2003 decision of the U. S. Supreme Court, as evidenced in the careful cartographic evidence he supplied as an integral part of the first American editions of his Notes on Virginia.

While in Annapolis, James Madison asked him on March 16, 1784, to look into the question of Maryland's ownership of the Potomac:

The Charter granted in 1732[1632] to Lord Baltimore makes, if I mistake not, the Southern Shore of the Potowmac, the boundary of Maryland on that side. The Constitution of Virginia cedes to that State "all the territories contained within its charter with all the rights of property, jurisdiction and Government and all other rights whatsoever, which might at any time have been claimed by Virginia, excepting only the free navigation and use of the Rivers Potowmac and Pokomoque etc." It is not to be apprehended that this language will be constructed into an entire relinquishment of the Jurisdiction of these rivers, and will not such a construction be fatal to our port regulations on that side and otherwise highly inconvenient? I was told on my journey along the Potowmac of several flagrant evasions which had been practiced with impunity and success, by foreign vessels which had loaded in Alexandria. The jurisdiction of half the rivers ought to have been expressly reserved. The terms of the surrender are the more extraordinary, as the patents of the N. Neck place the whole river potowmac within the Government of Virginia; so that we were armed with a title both of prior and posterior date, to that of Maryland. What will be the best course to repair the error? --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 on both sides. The last mode squares best with my present ideas. It can give no irritation to Maryld. It can weaken no plea of Virga. It will give Maryland an opportunity of stirring the question if she chooses, and will not be fruitless if Maryland should admit our jurisdiction. If I see the subject in its true light no time should be lost in fixing the interest of Virginia. The good humor into which the cession of the back lands must have put Maryland, forms an apt crisis for any negociation which may be necessary. You will be able probably to look into her charter and her laws, and to collect the leading sentiments relative to the matter . 12

On April 25, 1784, Jefferson replied, after discussing the matter with Thomas Stone, one of Maryland's signers of the Declaration of Independence, and the following year a negotiator on behalf of Maryland at the conference of the two states held at Mount Vernon that resulted in the Compact of 1785. He told Madison that he liked the method Madison proposed, and noted that “to introduce this the more easily I have conversed with Mr. Stone (one of their delegates) on the subject and finding him of the same opinion have told him I would by letters bring the subject forward on our part. They will consider it therefore as originated by this conversation.”13 In other words, the Marylanders who would engage in negotiating with Virginia over the regulation of the Potomac, saw Jefferson as a principal spokesperson for the Virginia point of view, not knowing that the ideas being promulgated by Jefferson were actually Madison's.

At the end of March, 1785, after cooling their heels in Alexandria waiting for the Virginia delegation to arrive, the Marylanders appointed to negotiate with Virginia over regulating the Potomac and the Chesapeake, were invited to Mount Vernon by George Washington, where finally both sides got to work. Over several days, George Mason and Alexander Henderson for Virginia, and Daniel of St. Thomas Jenifer, Thomas Stone, and Samuel Chase for Maryland toiled over the text of a proposed agreement, enjoying the ample hospitality of their host. The result was the Compact of 1785, the 7th article of which became the central point of controversy over which state should have the right to regulate the use of the waters of the Potomac above and below tidewater. That seventh article, the only article to survive the repeal of the compact in 1958, reads:

The Citizens of each State respectively shall have full property in the Shores of Potomack River adjoining their Lands with all Emoluments and advantages thereunto belonging and the privilege of making and carrying out Wharfs and other Improvements so as not to obstruct or injure the Navigation of the River; But the Rights of fishing the River shall be common to and equally enjoyed by the Citizens of both States, provided that such common Rights be not exercised by the Citizens of one State to the Hinderance or Disturbance of the Fisheries on the Shores of the other State, and that the Citizens of neither State shall have a Right to fish with Nets or Seines on the Shores of the other. 14

The meaning of this article is central to every arbitration and court case to the present time concerning regulatory jurisdiction over the Potomac River. What did it mean as to the use and ownership of the waters of the River? Does ''other Improvements'' extend to water consumption? Did the provision encompass the whole of the River or only the portion that was navigable in 1785? Could it have been, as Justice Kennedy asserts in his dissent, in essence “a predictable and intelligent hedging agreement (protecting both from the danger that at some later point the other’s claim to full and clear title would be confirmed by a competent legal authority)”? 15

Madison believed that the provisions of the Compact of 1785 only applied to the navigable portion of the River . In January of 1785 he wrote Jefferson that It now makes a part of the task alloted to the Commissrs. who are to settle with Maryd. the jurisdiction & navigation of Potowmac below tide water [emphasis added. 16

Shortly after the Commissioners had met, Madison would write Jefferson, on April 27, 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. [emphasis added]17

Not only did Madison understand the intent and reach of the Compact of 1785, he was the floor manager who shepherded it through the approval process of the Virginia House of Delegates.

Perhaps the negotiations were somewhat too amicable on reflection, as far as the Virginia negotiators were concerned. George Mason particularly regretted the ambiguous language and apparent intent of the 7th article to limit the use of fishing nets and seines off an owner's property on either side of the river.

The Fisherys upon the Potomack River are becoming a very important Object; & therefore I cou'd wish the above Clause [7] in the Compact properly amended: if the Amendment goes no further than I have mentioned [adding the words of the citizens to clarify that land owners could fish with nets and seines off their own shores], it will occasion no Objection from Maryland; and I wish the Article to be no[t] otherwise altered; for this was the most difficult Business we had to settle with the Maryland Commissioners. The idea of the Right of fishing on both Shores of the Potomack River is one the Marylanders are not fond of parting with; and I trust it will be found we have obtained every thing for Virginia, with Respect to the Potomac River, which she can desire. ..." 18

In granting the right to 'full property in the Shores of Potomack River adjoining their Lands with all Emoluments and advantages thereunto belonging and the privilege of making and carrying out Wharfs and other Improvements so as not to obstruct or injure the Navigation of the River,' Maryland only gave up its right to regulate with regard to fishing off one's own land, and indeed retained the right to regulate (in existence since June 20, 1632) all other matters, including the licensing of the use of the river in every respect from fishing to slot machines on piers extending out from the Virginia side. . "Full Property in the shores adjoining their land" in particular means the full property and its regulation as determined by the sovereign authority and ultimate owner of the River. “Full Property in the shores adjoining their land” meant Maryland precedent and Maryland land granting procedures (including the right of the state to take land and water back for public purposes) over the whole of the Potomac, not Virginia law and precedent as none extended beyond the southern bank of the Potomac. George Mason knew that, and wanted to be certain that he would not be prohibited from using fishing nets and seines off his own land which bordered the Potomac on the South side. Mason did not get his wish. The language of the Compact of 1785 was not changed and despite the acknowledgment in the 7th article of 'full property' the controversy over the meaning of the words of the compact would rage for another two hundred and eighteen years, possibly even longer.

Unfortunately for Maryland, the Supreme Court of the United States chose to disagree with Jefferson, Madison, and Mason, with regard to their view of the facts regarding Maryland's “full property” and regulatory powers over the waters of the Potomac. Instead the court decided in 2003 that Fairfax Virginia could withdraw as much water as she cared to (as long as it did not impair navigation), without regulation from Maryland.19

At dispute was the desire of Fairfax County Virginia to take water from the Potomac out of the middle of the river at a place above Great Falls. For a long time the County had been taking water through an intake on the south bank of the Potomac near the Trump golf course and wanted to move to the center of the river where the water was less silty.

The blue ‘x’ marks the spot from which Fairfax sought to move its intake pipe to the center of the river without regulation by Maryland. Source:

The Supreme Court decision to permit Fairfax to go unregulated by Maryland was based upon the recommendations of a special master, Ralph I. Lancaster from Maine, who had considerable international law experience dealing with boundary disputes between the United States and its neighbor, Canada, particularly those stemming from inaccurate maps of what might be referred to as 'his neck of the woods'.20 With that background, it might be expected that he would pay particular attention to the cartographic evidence in the Virginia vs. Maryland case, but apparently he was so intent on proving that the 7th article of the Compact of 1785 applied to the whole of the Potomac River, which in turn meant that Fairfax Virginia could draw as much water as it cared to from the river near the Loudon County Virginia line, that he failed to do so. In fact, he accepted uncritically one map in particular as supporting the Virginia claim, making much of the importance of it as evidence against Maryland.

When it comes to using cartographic evidence in court cases, care needs to be taken as to reliability and accuracy. In the border dispute with Maryland, for example, there is a long history of maps that were inaccurate or misleading out of ignorance or intent. The first map to accurately depict Maryland's claim to the southern boundary of the Potomac River was published by Lord Baltimore in 1635, [illus], but when he republished it in 1670, he deliberately pushed the boundary to the northward two rows of trees (something an earlier Equity Master discovered in the course of settling the boundary disagreement with William Penn) [illus]. About that same year Augustine Herrman accurately depicted the boundary on the South Shore of the Potomac, but both his map, and the two Calvert maps had no factual basis for what they depicted as the location of the origin of the Potomac, the first font of the River. That would take several mapping expeditions and several competing cartographers in the mid 18th century, followed by a Supreme Court decision in the first decades of the 20th century, to resolve. The resulting maps drawn by William Mayo, John Warner, and others by 1747, as filed with the British Government, [illus] do not draw a distinct boundary line between Maryland and Virginia, but they led to the British decision in Lord Fairfax's favor that it is the northern branch of the Potomac not the southern, that forms the boundary with Maryland. In the 1790s, Maryland tried to assert it also owned the southern branch. At the time, Jefferson was shepherding the American editions of his Notes on Virginia through the press and found this expansion of the ownership argument intolerable, as he told Madison in a letter written in January, 1797:

I suppose you are informed of the proceedings commenced by the legislature of Maryland to claim the South branch of Patowmac as their boundary, and thus, of Albemarle now the central county of the state, to make a frontier. As it is impossible upon any consistent principles and after such a length of undisturbed possession that they can expect to establish their claim, it can be ascribed to no other than an intention to irritate and divide, and there can be no doubt from what bow the shaft is shot. However let us cultivate Pennsylvania and we need not fear the universe. The assembly have named me among those who are to manage this controversy. But I am so averse to motion and contest, and the other members are so fully equal to the business that I cannot undertake to act in it. I wish you were added to them....21

In the end, the Supreme Court in 1912 concurred with the decision of the British government in the 18th century that the north Branch of the Potomac was the boundary of what was, by then West Virginia, and ruled that the whole of the river was owned by Maryland to the low water mark (by all rights it should have been the high water mark). The river, according to the court, began at the Fairfax stone, so identified by a Maryland surveyor in 1787, Francis Deakins, when he laid out lots to be given to Revolutionary War veterans in compensation for their service.22

In his recommendation to the Supreme Court that Virginia had the right to withdraw water from the Potomac River without regulation from Maryland, Special Master Lancaster refused to acknowledge the fact that the Compact of 1785 was exclusively related to the navigable waters below Great Falls, and he accepted the boundary between the two states as found on Dennis Griffith's map of Maryland published in 1794, the same year that Jefferson published his second American edition of the Notes on Virginia.

Lancaster wrote:

A 1794 map of the State of Maryland, titled “Map of the State of Maryland Laid down from an actual Survey of all the principal Waters, public Roads, and Divisions of the Counties therein” and paid for in part by the Maryland

House of Delegates, shows the boundary between the two States as running down the middle of the Potomac.68 The delegates who reviewed the map while it was under development in 1792 found that it “appear[ed] to them to

be accurate” and would be “of great public utility.”69 In 1799, legislators “attentively examined” the map and

thought it “a work of great merit, ornament, and utility.”70 The map and the statements of Maryland legislators

constitute additional evidence to show that the negotiators of the 1785 Compact would not have understood that

Maryland had exclusive control of the Potomac and that Maryland would regulate Virginia’s exercise of rights

under it.23

Lancaster accepted this map as supplementary proof of his argument that Maryland acceded to and paid for the way Griffith depicted the boundary between the two states. In fact, Maryland did not endorse or accept the map as Griffith had hoped, possibly because of the deficiencies of the map, refusing to pay for it, casting poor Griffith into poverty and an early, now forgotten, grave. The details of Griffith's failed efforts to profit by making a large scale map of Maryland is detailed in a work available to both sides in the case, but went unnoticed by all, including the Special Master.24 While there is no record of an explicit complaint about how Griffith depicted the boundary between Maryland and Virginia, the map contains at least one other blatant error probably attributable to the ill-informed Philadelphia engraver, who also may have been responsible for depicting the boundary as shown. The map is dedicated to the Maryland House of Representatives instead of the Maryland House of Delegates, a fact that in no small measure may have contributed to Griffith's later difficulty in recouping his investment. As boundary evidence it is at least suspect and needs to be balanced with other more reliable examples such as the beautiful atlas plate by Mathew Carey published in 1814, and several other maps available for easy web review on David Ramsey's web site.25

Use of the general atlas maps as evidence, however, cuts both ways. Fielding Lucas, of Baltimore, who published several lovely maps of Maryland in the first decade of the 19th century follows Griffith and places the boundary squarely in the middle of the river to its source. Except for his Chesapeake Bay chart which he may have commissioned, Lucas 'borrowed” all of his maps from other map makers with little regard to their authorship or accuracy.

Instead it is important to seek out a map maker who is accurately informed by reliable authority on where state boundaries lie, being willing of course, to place the map maker and his sources into historical context. In the text of all the editions of the Notes on Virginia, which he first completed in Annapolis in the Spring of 1784, and edited in Paris for publication in London in 1787, Thomas Jefferson makes the same reference to the Potomac boundary.

From the text it is clear that Jefferson knew that the boundary of Maryland followed the south or Virginia side of the river by the manner in which he crossed the Bay from Watkins Point to Cinquac, “near the mouth of the Patowmac, thence by the Patowmac,, which is common to Virginia and Maryland, to the first fountain of its northern branch...” [emphasis added]26 But while the text is subject to interpretation, his maps accompanying his text are not.

What changed over the editions of the Notes was the map that Jefferson went to great trouble to have accompany the volume. With the first edition he was demonstrably unhappy with the map and chose to disclaim authorship of its contents. In 1786 he wrote the British spy Edward Bancroft that “I do not propose that my name shall appear on the map, because it will belong to its original authors, and because I do not wish to place myself at the bar of the public.”27

By the time he returned to America and had some time to prepare an American edition, he had changed his mind and did place his conclusions with regard to the boundaries of Virginia before the 'bar of the public.” Through his publisher, Mathew Carey of Philadelphia, he secured the services of a surveyor and map maker, Samuel Lewis, who had trained under George Washington.28 As Coolie Verner points out “this map, drawn by Samuel Lewis in 1794, is of particular interest as the first map of Virginia to be made, engraved, and printed in America. It appeared in many of Carey's atlases and similar publications as well as in other editions of the Notes by other publishers.”29 This is the map to which the Special Master and the Supreme Court should have paid particular attention as an effective counterweight to Dennis Griffith's map of Maryland.

details from Samuel Lewis, The State of Virginia from the Best Authorities, 1794, author’s image collection

note how the boundary deliberately crosses to the south bank of the Potomac at just above Great Falls

The Lewis map accompanying Jefferson's first American editions of his Notes on Virginia establishes beyond doubt that by 1794, Samuel Lewis, a Virginia trained surveyor, working under contract with a distinguished Philadelphia map publisher and the direction of an indisputable authority on Virginia constitutional law, deliberately depicted for his client the administrative boundary of Maryland above Great Falls on the Potomac as exclusively Maryland, and the boundary below Great Falls as a cooperative responsibility of the two States as defined by the compact of 1785.30

In recent years (since 1978) the states with their local water authorities that consume water from the Potomac, and the District of Columbia, have worked together to share and monitor the water flow of the Potomac. They even signed an agreement in 1978 that tacitly acknowledged Maryland's right to issue permits with regard to who could withdraw Potomac water, and to what degree, especially in times of water scarcity.31 This was an agreement signed and ratified by Maryland, Virginia, the District of Columbia, and Congress, which apparently was not addressed by the Special Master in the 2003 Va. v. Maryland case.

But the answer to the future of the Potomac does not lie in water management agreements, formal or informal that have no firm base in constitutional law. It lies in water allocation and water quality regulation rooted in constitutional amendments defining the sovereign authority established to make such regulations. The need for Fairfax to extend its pipe into the middle of the Potomac in the fresh waters above tidewater was governed by the sediment that was accumulating at its then location because of runoff and over development. While the amount of water Fairfax could withdraw was in principle still governed by the 1978 and subsequent water allocation agreements, in fact it would be the number of new consumers in communities withdrawing water up stream and elsewhere along the Potomac that would constitute the continuing threat to the future water supply from the river.

In looking to the future of water resources and the right to administer them, what does this map of Jefferson's and a closer reading of the historical evidence not available in 1877 or 1910 really address? Should a recent decision of the Supreme Court based upon a poor understanding of the historical context and the historical evidence be reversed? It is not very likely any time soon that that might happen, and in the end it probably would be a wasted, expensive effort, even if successful. The Court is weary of the dispute between the two states, even though I believe a fair evaluation of all the evidence supports the dissents of Justices Kennedy and Stevens. In my opinion, our time and resources could be better spent. If we are to have clean water to drink and a Potomac that remains a vital waterway for the Nation, there needs to be another Mt. Vernon conference sanctioned by all parties in which constitutional amendments are produced that alter the way we regulate suburban sprawl and water consumption throughout the Chesapeake Bay watershed. In my opinion, we need to be addressing population growth and expansion with a watershed focus. [illus of Chesapeake Bay Watershed] Decisions as to growth and water regulation must be made in the context of the 64,000 or so square miles of the Chesapeake Bay watershed, not the provincial and expansionist views of individual states in the watershed, no matter what their current constitutional rights may be. To obtain that goal requires further constitutional changes at the Federal and State level, beyond the relatively powerless and advisory role of the Interstate Commission the Potomac River Basin (ICPRB).32 We get there by putting teeth into regional compacts in which local sovereign powers are surrendered by constitutional amendment to regional authorities that cross state boundaries. That is what the process of writing constitutions is all about. Perhaps it is time to revisit Jefferson on this issue as well. In a letter to Madison written in 1789, Jefferson mused that Constitutions need to be re-visited every 19 years. Maryland has such a provision in its State Constitution.33 Perhaps it is time to return to the negotiating table, if not to the Supreme Court, for a reversal of Virginia vs. Maryland through constitutional amendment and not litigation, that simply limits the use of our most precious resource?34

1See editions of Poor Richard's Almanac on google for the text. According to one source: For Want of a Nail: Changing Conceptions of Agency. The year 1640 marks the first appearance in print (in any language) of a well-known proverb: For want of a naile the shoe is lost for want of a shoe the horse is lost for want of a horse the rider is lost.1 The saying first surfaced in George Herberts Outlandish Proverbs published ten years after the authors death in 1630. A well-known poet Herbert may have authored the maxim. [sources:] Post August 17 1931 8 (Available from ProQuest: "Display Ad 8"). Moon Paul. "Blending Popular Culture and Religious Instruction: Herbert's Outlandish Proverbs." Early Modern Literary Studies 2 no. 1 (1996): 1-6. Saunders Allen. "Mary Worth's Family." Los Angeles Times March 19 1944 D11 (Available from ProQuest: "Comic 11"). Stich Herman J. "Two Minutes of Optimism: Little Things and Big Effects." Los Angeles Times August 11 1922 4 (Available from ProQuest). Tomes Nancy. The Gospel of Germs : Men Women

2Review of this essay by Profesor Garrett Power, retired professor of Law, University of Maryland School of Law, to the author. Professor Power agrees with the Court and discounts the importance of the cartographic evidence presented here. In part he writes “According to the English common law a private owner of land abutting a public waterway had riparian (AKA littoral) rights to make to make reasonable use of the waters. The VA/ Md dispute is distinctive in that it is the sovereign state of VA claiming a riparian right to consume Potomac waters (rather than the private owner of waterfront property). What constitutes “reasonable” use has been decided on a case by case basis in thousands of decisions in over hundreds of years. There are no reliable “bright line” rules. In Va. v. Md (2003) the U.S Supreme Court is in essence deciding that the sovereign state of VA is reasonable exercising its riparian rights to Potomac waters when it withdraws freshwater for public water supply purposes. The adoption of this pragmatic “rule of reason” is not inconsistent with the history or maps from the region.” For riparian rights, littoral rights, and the Thalweg doctrine see helpful articles in Wikipedia:,, The problem with this argument is that Riparian rights cannot adversely affect other riparian owners and water ought not to be taken out of the watershed, which is exactly what Fairfax is doing with the water. The riparian owners of Virginia have the right to drink the water of the Potomac, but they must use the facilities or the woods in the watershed to return it to ground, and the sovereign state of Maryland has the right to regulate the use thereof as the river is wholly within the bounds of the State.

3Baida, Andrew H. "The Art of Appellate Advocacy: Virginia v. Maryland: The real reason why Virginia won." The Daily Record, 8 October 2004.



6See: Professor Kenneth Lasson's historical analysis of the dispute over regulation of the Potomac in the report is both exhaustive and compelling in its narrative of the jurisdictional disputes between Maryland and Virginia to 1976, but does not attempt to judge which State's interpretation is correct. What he does make clear is that neither side has given ground and that none of the legal and rhetorical maneuvering of either side over the years amounts to concession one way or the other in the evidence set before the Special Master in the recent Supreme Court case, although the Master interprets it otherwise in favor of Virginia.

7 Note that the web site contains tabulated data from all states including Maryland. Close attention should be paid to this underlying data and what it actually means. In my zip code, 21210, the worst polluter by state records was our local swimming pool with 76 infractions. What does this mean? How helpful are the recording practices? What is being missed? Staffing levels at the Maryland Department of the Environment, as is true of all similar county agencies are faced with enormous budget pressures which may in fact make a mockery of investigation and enforcement.

8As George Mason, one of the negotiators at Mount Vernon for Virginia pointed out, the Virginia delegation's instructions, which they received only after they had concluded their deliberations, limited them to negotiating about the Potomac River only. When the broader agreement reached Richmond, James Madison,the floor leader, ignored the instructions and shepherded the agreement through passage unchanged by the Virginia legislature. See Robert A. Rutland, The Papers of George Mason, 1725-1792, Vol. II, 1779-1786, Chapel Hill: University of North Carolina Press, 1970, pp. 812-838. The historical evidence, apart from maps is expertly reviewed by Ron Hoffman in 2001 in his affidavit filed on behalf of Maryland in the Virginia v. Maryland case. See: Dr. Hoffman makes a strong case for the two spheres argument (above and below tidewater) presented here as it applies to the Compact of 1785, but does not examine the cartographic evidence.

9The Annapolis 'White House” was on the site of the current annex to the Anne Arundel Court House and was owned by Daniel Dulany, Sr., a prominent Annapolis lawyer who did not support the Revolution, but remained in Maryland as a non-juror, protected by his many friends. The details of Jefferson's rental and use of the house while in Annapolis are documented in a forthcoming essay by the author.

10Thomas Jefferson to James Madison, May 25, 1784,

11Coolie Verner, The Maps and Plates Appearing with the Several Editions of Mr. Jefferson's “Notes on the State of Virginia” in the Virginia Magazine of History and Biography, vol. 59, no. 1, January 1951, pp. 21-33.

12Smith, Republic of Letters, I:302-303

13 Smith, Republic of Letters, I:310

14Rutland, The Papers of George Mason, vol II, p. 818.

15 “Thus, in effect, they gave one another assurances of River access in exchange for the identical, reciprocal pledge. The mutual promise was sensible enough since at the time both parties claimed to own the whole River, and equally, therefore, neither accepted the other’s claim to have any right to gain access to the River. The Compact, in essence, was a predictable and intelligent hedging agreement (protecting both from the danger that at some later point the other’s claim to full and clear title would be confirmed by a competent legal authority).” Justice Kennedy believes that once sovereignty is established and accepted, it ought not to be compromised by judicial action.

16Madison took a keen interest in the work of the Commissioners, and if a clerk had not failed to deliver his appointment in a timely fashion, probably would have attended the negotiations. On July 3, 1784, Madison wrote Jefferson that Col. Mason, the Attorney, Mr. Henderson and myself are to negociate with Maryland if she will appoint Commissioners to establish regulations for the Potowmac. Smith, The Republic of Letters, I:323. As Robert Rutland points out in his edition of George Mason's papers, even Mason did not get official word of his appointment and the meeting. He and Henderson joined the deliberations because the Maryland delegation told him they were on their way. So ineptly did the Richmond government handle the appointments that Mason and Henderson negotiated in the dark without instructions, only to find that they had gone far beyond what the Virginia General Assembly instructed them to do. Rutland, The Papers of George Mason, vol. II, pp. 812-814.

17Jefferson Papers, VIII:113

18George Mason to James Madison, December 7, 1785. (Mason Papers, vol. II, pp.837-838.


20; Interestingly enough he reached an entirely different conclusion in a case involving New Jersey and Delaware. There he upheld the sovereignty of Delaware, but in this case chose to ignore the ignore the sovereign rights of Maryland over the waters of the Potomac, a point made in the dissents of Justices Kennedy and Stevens.

21Smith, Republic of Letters, I:960-61;≠xt_filecode=mtj&prev_filecode=mtj&itemnum=11&ndocs=18

22This is a complex case which deserved greater critical attention than it received from the Special Master. All of the relevant documents in the two related decisions of the Supreme Court (1910 and 1912) are to be found at: Maryland State Archives, 1891/10, U. S. Supreme Court, Original No. 1: State of Maryland vs State of West Virginia. Bill of Complaint and Answer (Old Accession No.: 18,011-1) MSA S 58-15 For multilayer tif images of MSA S 58-15 for whole document printing, click here. These tend to be very large images and will take some time to load

23 Special Master's report and appendix

24Edward C. Papenfuse and Joseph M. Coale III, The Hammond Harwood House Atlas of Historical Maps of Maryland, 1608-1908, Baltimore: The Johns Hopkins University Press, 1982, pp. 48-53, and notes 9-15, p. 125. A revised edition in 2002 takes the Special Master to task for ignoring the cartographic evidence of Virginia's acceding to Maryland's regulation of slots and fishing on piers off the Virginia shores below tidewater.


26; see quote on page 1 of the first edition and in all subsequent editions in Jefferson's lifetime. Also note that none of the on-line editions scanned by Google contain the accompanying maps. The map for this study was obtained from the copy owned by the American Antiquarian Society, and has been generally available for a number of years through their microcard edition of works published in America prior to 1820. See Verner, Maps and Plates, for a full discussion of the maps accompanying the many editions of Jefferson's Notes on Virginia.

27As quoted in Verner, Maps and Plates, p. 27

28See P. Lee Phillips, “Some Early Maps of Virginia and the Makers, Including Plates Relating to the First Settlement of Jamestown”, in the Virginia Magazine of History and Biography, vol 15, pt. 1, 1907, pp. 71 ff. ... Washington, for example, was a surveyor and maker of maps, although none of his work is in printed form. The Library of Congress has several manuscript plans of his dating from 1750 to 1775. The most interesting is the large map (79 by 24 inches) made by him in '775. showing lands on the Great Kanawha river, in West Virginia, granted by the British Government in 1763 for his services in the Braddock Exposition. As stated on the map, it is "A copy of a survey made by Mr. Samuel Lewis, 1774, for G. Washington, for 2950 acres." That the question of the disposal of this land was receiving deep thought and consideration from Washington is shown in his correspondence of that time. The copy, entirely in Washington's handwriting, contains detailed notes, tables and explanatory plats, as would Ire expected from one so painstaking in all his affairs.

29Verner, Maps and Plates, p. 28.

30While all his later maps of Virginia and their derivatives adhere to the depiction of the boundary as he presented it for Jefferson's Notes, there are later editions of his atlas maps of Maryland that do not carry the boundary of the state on the south bank as far as great falls (see his 1795 map of Maryland) and later maps that follow Lewis do not show an administrative boundary at all. Why Lewis failed to extend his boundary line on the south bank as far a Great Falls on his 1795 map of Maryland is a mystery, but it does not affect the argument that what he did for Jefferson accurately reflects Jefferson's perception of the administrative boundary between the two States. As with all evidence, the historical context of creation is key to evaluating importance and relevance. A good place to view Lewis's maps on line is David Rumsey's map collection,, although Rumsey does not have a copy of the map on line that Lewis drew for Jefferson and was included in the 1794 edition of Jefferson's Notes.

31See Stuart S. Schwartz, “Multiobjective Management of Potomac River Consumptive Use”, Journal of water Resource Planning and Management, September/October 2000, pp. 277-287.”

32For the interstate/DC agreements on the Potomac River Basin see: Note that the problem of water from the Potomac directly is not the only issue between Virginia and Maryland over water use. Wells on the Maryland side of the river below tidewater are causing wells in the Northern Neck to dry up. See the Virginia complaints at: See also:

33SEC. 2. It shall be the duty of the General Assembly to provide by Law for taking, at the general election to be held in the year nineteen hundred and seventy, and every twenty years thereafter, the sense of the People in regard to calling a Convention for altering this Constitution; and if a majority of voters at such election or elections shall vote for a Convention, the General Assembly, at its next session, shall provide by Law for the assembling of such convention, and for the election of Delegates thereto. Each County, and Legislative District of the City of Baltimore, shall have in such Convention a number of Delegates equal to its representation in both Houses at the time at which the Convention is called. But any Constitution, or change, or amendment of the existing Constitution, which may be adopted by such Convention, shall be submitted to the voters of this State, and shall have no effect unless the same shall have been adopted by a majority of the voters voting thereon (amended by Chapter 99, Acts of 1956, ratified Nov. 6, 1956).

34No society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation…Every constitution, then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force and not of right.” —Thomas Jefferson (in a letter to James Madison from Paris, September 6, 1789).