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A supplement to the act, entitled, an act appropriating certain militia fines to the improvement of public roads,' except the following, viz.
Sect. 1. line 8, strike out and those who refused to march under the orders of general Kelso,' in which amendment they have non-concurred.
Senate receded from the foregoing amendment, non-concurred by the House of Representatives.
Ordered, That the clerk inform the House of Representatives accordingly.
On motion of Mr. Welles and Mr. Lowrie,
Ordered, That an item of unfinished business relative to the seat of justice of Tioga county, be referred to a committee, and That Mr. Welles, Mr. Ross, Mr. Shoemaker, Mr. Smith and I. Weaver be the committee.
Mr. Welles presented sundry documents relating to the above item of unfinished business, which were read and referred to the last named committee.
The bill, entitled
'An act for the better securing the free navigation of the river Delaware, was read the second time as reported by a committee of the whole yesterday, considered by section and agreed to, and Ordered,That said bill be prepared for a third reading.
The bill, entitled
An act to authorize the Governor to incorporate a company a company for erecting a permanent bridge over the river Susquehanna, at or near Clark's ferry in the county of Cumberland,' was read the second time as reported by a committee of the whole yesterday.
Section 1. having been considered,
On the question,
Will Senate agree to said section?
The yeas and nays were required by Mr. Beale and Mr. Ewing, and are as follow, to wit.
So it was determined in the affirmative.
The remaining sections and title having been agreed to,
The Secretary of the Commonwealth being introduced, presented a message from the Governor, with the documents therein referred to, which were read as follow, to wit.
To the Senate and House of Representatives of the Commonwealth of Pennsylvania.
I have this day approved and signed the following acts of the General Assembly, and directed the Secretary of the Commonwealth to return them to the houses in which they respectively originated, viz.
1. An additional supplement to an act, entitled, an act directing the mode of selecting and returning jurors.
2. An act to regulate the payment of costs in certain cases of trespass therein mentioned.
3. An act enabling the Governor to incorporate a company for making an artificial road from the state line near the town of Emmetsburg in the state of Maryland, to intersect the Chambersburg and Bedford turnpike road, at or near Loudontown in Franklin county.
4. An act concerning the sale of a tract of land of which John Burnside died possessed.
5. An act to vest in Isabella M'Intyre the right of this commonwealth to the estate of her husband Thomas M'Intyre, formerly of the city of Philadelphia, deceased.
6. An act to enable the representatives of Thomas Allibone, late of the city of Philadelphia, deceased, who are of full age, and the guardian of those who are minors, to convey and assure a lot of ground in the Northern Liberties of the city of Philadelphia.
7. An act to enable Joseph Crawford and William Hamill, executors of the last will and testament of William Clennal an alien, late of Montgomery county, deceased, to convey certain real estate.
8. An act authorizing the Governor to incorporate the North-. ampton Water Company.
9. An act for the improvement of a road beginning at the point where the Coshecton and Great Bend turnpike passes through the Moosic mountain in a western direction to the west line of the state, and for other purposes.
I lay before you copies of letters from the governors of the states of Ohio, Vermont and Tennessee, accompanied with the
results from a submission to the legislatures of those states re spectively, of certain propositions by the legislatures of Massachusetts and Connecticut for amending the constitution of the United States.
I transmit also, copies of a correspondence between William Mitchell and John Ross, Esqs. commissioners appointed under a resolution passed by the last legislature, and the governor of New Jersey, relative to a supposed infringement by that state of a compact heretofore entered into, between said government and Pennsylvania, for securing to the citizens of both states the benefit of an unobstructed and free navigation of the river Delaware. This correspondence is accompanied as well by a draught of that part of the river, where obstruction is contemplated to be created, as by the result generally, from the execution of what is commanded by the said resolution, in a report made and signed by said commissioners, dated January 16, 1816.
Harrisburg, February 15, 1816.
To his excellency SIMON SNYDER, Esq. Governor of the Commonwealth of Pennsylvania.
SIR-The undesigned, commissioners appointed by your excellency the 15th day of March 1815, in pursuance of a resolution of the Senate and House of Representatives of the commonwealth of Pennsylvania, passed the 15th 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 degree to violate or infringe the agreement entered into on the 26th day of April 1785, 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 suggested such opinions, and made such enquiries, as they deemed necessary to a fair understanding of the respective 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 excellency 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 waters, 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 thereby 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 their concurrent acts of assembly authorizing the building of bridges, regulating fisheries, prohibiting fish-baskets, 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 Apri. 1783, between the commissioners of the two states respectively.
The legislature of New Jersey, by the condition upon which they authorize the erection of the contemplated dam, 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 the said. Daniel W. Coxe, Samuel Wright, jun. and Peter S. Smith, or the survivors or survivor of them, his or their heirs or assigns, shall form, build and complete a lock on 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 feet wide."
If that part of the river contemplated to be damed has been accustomed to be navigated, the legislature of New Jersey have no right, without the consent of Pennsylvania, to say it shall in future not be navigated, or if navigated, it shall be in a different manner or upon different terms from what it has been accustomed to be, or subject to such regulations or locks as they in their wisdom may think proper to establish; and yet this is precisely what the legislature of New Jersey have undertaken to do.
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, and attempted to be carried into operation by the legislature 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 one of the most invaluable rights of Pennsylvania.
January 16, 1816.
For the remainder of said documents see appendix.
The bill, entitled
An act to enable Edward Duffield and Joseph K. Swift, executors of John Swift, deceased, to sell and convey a certain tract of land therein mentioned,' was read the second time as reported by a committee of the whole yesterday, considered by section and agreed to, and
Ordered, That said bill be transcribed for a third reading.
An act directing certain payments to be made to the first troop of city cavalry,' was read the second time as reported by a committee of the whole yesterday, considered by section and agreed to.
Ordered, That it be prepared for a third reading.
On motion of Mr. Smith and Mr. Lowrie,
The Senate resolved itself into a committee of the whole, Mr.