61sT Congress, | SENATE. j Document M Session. f [ No. 286. F 195 ^1 ■1. .T24 RETROCESSION ACT OF 1846. Copy 1 Mr. Carter presented the following LETTER FROM HANNIS TAYLOR TO HON. THOMAS H. CARTER, UNITED STATES SENATOR, RENDERING AN OPINION AS TO THE CONSTITUTIONALITY OF THE ACT OF RETROCESSION OF 1846. January 17, 1910. — Referred to the Committee on the District of Columbia and with accompanying illustrations ordered to be printed. THE OPINION OF HANNIS TAYLOR AS TO THE CONSTITUTIONALITY OF THE ACT OF RETROCESSION OF 184(1 My Dear Senator: You have requested me to make a careful examination of every question of fact and law necessarily involved in the constitutionality of the act of July 9, 1846 (9 Stat., 35), entitled "An act to retrocede the county of Alexandria, in the District of Columbia to the State of Virginia." I will preface my conclusions, which are arranged under four heads, with a few observations as to the history of the original cession that will hardly be controverted by any one. " The contemporaneous evidence puts the fact beyond all question that the final definition of a district 10 miles square as the seat of our Federal Government was in a special sense the personal work of President Washington, whose task involved the acquisition of the title to the tract from three sources — the State of Virginia, the State of Maryland, and the 19 local proprietors who owned that part of the heart of the present city which underlies the Capitol, the Wliite House, and the Treasury. Washington's task was to induce the three parties who held the. title to cede to the Federal Government, without any direct pecuniary consideration, the entire area under a quadri- lateral contract in which that Government was the grantee and bene- ficiary, and Virginia, Maryland, and the 19 local proprietors the grantors. The real consideration moving to such grantors was the incidental benefits to accrue to them from their joint cession which, in the language of the act of July 16, 1790, "is hereby accepted for the permanent seat of the Government of the United States." That covenant represented the only consideration moving directly from the Federal Government, while the three grantors were bound to each other by the mutual considerations moving from the one to the other under interdependent grants. Maryland, the last to grant, expressed the idea of the mutual benefits to be derived from a common enterprise when her legislature declared that "it appears to this general assembly highly just and expedient that all the lands within the said city should contribute, in due 'proportion, in the means which have already greatly enJianced the value of the whole." Under that quadrilateral 2 \ EETEOCESSIOX ACT OF 1846. contract, supported by the foregoing- considerations, the Federal Government entered into possession with a perfect title, after the final cession made by Maryland, December 19, 1791. No one perhaps will deny that after the title to the entire area had thus passed from the three grantors into the corporate person of the nation neither the State of Virginia nor the State of ^Maryland could have, either in law or in equity, any claim to the common heritage superior to that of any other State. Under such conditions the Federal Government re- mained in peaceful possession of the entire area 10 miles square and governed the same under the Constitution for a period of fifty-five years. During that time the original boundaries as designed by Washington were marked by massive stone monuments, which still abide unimpaired. By the act of retrocession of July 9, 1846, the district was dismembered by a conveyance to Virginia of nearly one- half of the entire area for no pecuniary or property consideration whatever. Wliat was the real motive of the retrocession it is at this time difficult to ascertain. From a legal standpoint the fact that the portion reconveyed to Virginia liad originally been contributed by her IS of no significance whatever. Therefore, before argument begins, the mind wonders upon what constitutional principle such retro- cession could have been made. Two distinct parts of the Constitu- tion are involved: First, that part of section 8, Article I, which pro- vides that Congress shall have power "To exercise exclusive legisla- tion in all cases whatever, over such District (not exceeding 10 miles square) as may, by cession of ])articular States, and the acceptance of Congress, become the seat of government of the United States;" second, that part of section 10, Article I, which provides that "No State shall pass any bill of attainder, ex post facto law, or law impainng the obligation of contracts.'' During the memorable Senate debate led by Senator Haywood, of North Carolina, who, as chairman of the District Committee, bitterly assailed the constitutionality of the act of retrocession, the meaning and effect of section 8, Article I, was full}" explored. I can not doubt the soundness of the conclusion then reached by many leading statesmen of that day to the effect that, considered in reference to that part of the Constitution alone, the act of retrocession is null and void. AVhat I can not understand is the fact that in any debate, however liastih' conducted, the deeper and more obvious argument based on the contract clause of the Constitu- tion (Article I, section 10) should have been entirely overlooked. And yet the record shows that such was the fact. It never occurred to any one in 1846, or since that time, to look to the sources of the title in the quadrilateral contract upon which the ownership of the area, 10 miles square, really depends. What is said herein as to that branch of the subject is my personal contribution to the controversy. The Continental Congress, after passing its last act on October 10, 1788, expired, leaving to the new Congress that assembled at New York on March 4, 1789, the task of selecting a permanent seat of government under the mandate contained in section 8, Article I, of the Constitution. The discussion began on May 15 with Virginia's offer of an area 10 miles square, which was followed by like offers from Maryland, New Jersey, and Pennsylvania. On September 3 Mr. Goodhue said, in debate, that "the eastern and northern ]\lem- bers had made up their minds on the sul^ject, and were of opinion that on the eastern banks of the Susquehanna Congress should fix its permanent residence," introducing at the same time a resolution FEB 2 1910 4 S, EETEOCESSION ACT OF 1846. v 3 :o that effect. On September 7 Mr. Lee moved to amend Mr. Good- liue's resolution by substituting the ''north bank of the River Poto- mac, in the State of Maryland/' for "the east bank of the river Sus- quehanna, in the State of Pennsylvania." After prolonged discussion the act of July 16, 1790, was pas^sed, and the site of the District finally located, partly in Prince George and Montgomery counties, in the State of Maryland, and partly in Fairfax County, in the State of Virginia, by proclamation of President George Washington, March 30, 'l791, within the following bounds: ; Beginning at Jones Point, being the upper cape of Hunting Creek, in Virginia, and >at an angle in the outset of 45 degrees west of the north, and running in a direct line aO miles for the first line; then beginning again at the same Jones Point, and run- ning another direct line at a right angle with the first across the Potomac 10 miles for the second line; then from the terminations of the said fii-st and second lines running two other direct lines of 10 miles each, the one crossing the Eastern Branch 1 aforesaid and the other the Potomac, and meeting each other in a point. Southwestern side, 10 miles 230.6 feet. Northeastern side, 10 miles 263.1 feet. Southeastern side. 10 miles 70.5 feet. * Northwestern side, 10 miles 63 feet. 4 RETROCESSION ACT OF 1846. From the foregoing diagram it appears that the ''portion derivecll from and receded to Virginia" constitutes nearly one-half of thtj* territory of the District as originally defined in the proclamation of March 30, 1791. If the act of July 9, 1846 (9 Stats., 35), entitled "An act to retrocede the county of Alexandria , in the District of Columhia\ to the State of Virginia," is unconstitutional and yoid, the laws of the United States should now be executed by the President throughout the ''portion deriyed from and receded to Virginia." I. ACT OF 18-;6 UNCONSTITUTIONAL BECAUSE IN CONFLICT WIIH SECTION 8, ARTI- CLE 1, OF THE CONSTITUTION. That section provides that ' ' The Congress shall have power * * * to exercise exclusive legislation in all cases whatsoever over sucli District (not exceeding 10 miles square) as may by cession of par- ticular States, and the acceptance of Congress, become the seat of the Government of the United States." After the power to select the seat of government had been once exercised by Congress, after the cessions had been made for that purpose by ''particular States," after the area so ceded had been accepted by Congress under the act of July 16, 1790, declaring "the same is hereby accepted for the permanent seat of the Government of the United States," the power of Congress over the subject-matter was exhausted. Or, if it was not exhausted, it could not again be exercised, because no power re- mained to transfer the District as originally created and accepted or any portion of it to any State. In other words, after a districtj 10 miles square had once been established and accepted as a per-' manent seat of government. Congress possessed no power to acquire j another territory for another seat of government without vie-' lating the constitutional limitation which confined it to the 10 miles square. The Congress, an agent of limited authority, was expressly authorized to receive cessions from States of a limited amount of territory to be held as a permanent seat of government, but it was not authorized, expressly or impliedly, to give any part of such cessions away to anyone. Such was the constitutional difficulty which the Hon. R. M. T. Hunter attempted to overcome when the bill in cpiestion was up for debate in the House of Repre- sentatives, May 8, 1846. (See Cong. Globe, vol. 15, Xo. 2, Ap- pendix, pp. 894-898.) Wlien the bill passed to the Senate the chairman of the Committee on the District of Columbia, Senator Haj^wood, of North Carolina earnestly opposed it. In the proceedings of June 17, 1846, the fol- lowing appears: ''retrocession of ALEXANDRIA. "Mr. Haj^wood, from the Committee on the District of Columbia, I reported the bill for the retrocession of the city and county of Alex- ' andria with a recommendation that it be rejected." (Cong. Globe, vol. 15, No. 3, pp. 985-986.) In the debate which took place on June 30, Mr. Haywood said in part: "If there was any particular evil to be remedied by diminishing I the extent of the 10 miles square, the committee had not been apprised of it; if any i)articular good to be attained, they were not apprised. When the retrocession was first suggested to the considera- RETEOCESSION ACT OF 1846. 5 tion of the Senate, doubts were entertained by many how far it was competent for Congress to recede what the Constitution had for a particular purpose authorized them to accept. The States of Mary- lai'id and Virginia had ceded this territory to Congress, to be t-aken under its exclusive jurisdiction for the seat of government, and Con- gress, in the execution of that intention, solemnly declared by enact- ment its acceptance of the grant, and that this District should be per- petually the seat of government. Individual citizens of the District, a minority, if they chose to assume that they were so, had purchased property and become residents of the county under this pledge, and unless there were some evil to be remedied or decided advantage to be gained by the change, which would compensate those citizens, where was the propriety of violating that pledge?" Mr. Miller, who fol- lowed, said in part that "he was inclined to think that the subject was of more importance than he had at first view supposed. His first impressions were in favor of the bill, for he supposed that the whole matter depended upon the wishes of the people of Alexandria and Virginia. But, upon an examination of the subject, he found himself in great doubt as to whether Congress had the power to pass such an act ; and even if they had the power he was perfectly convinced that it would not be good pohcy to do it." He then conteiided "that if Congress had the power to cede away any part of the District, they had power to cede the whole, and thereby entirely defeat the inten- tion of the constitutional provision in regard to the seat of govern- ment." In the final debate, which took place on July 2, "Mr. Hay- wood 0]:)posed the bill, and in an elo({uent manner coiitended for the sacred immunity of the Constitution and the wise ari-angements of the sages of the Revolution. He also argued the constitutional (|ues- tion at considerable length and with characteristic ability." Thir- teen Senators joined Mr. Haywood in opposition to the bill, which passed by a vote of 32 to 14. (Cong. Globe, vol. 15, No. 3, p. 1046.) Section 8 of Article I of the Constitution, when taken as a whole, provides that ''The Congress shall have power * * * to exercise exclusive legislation in all cases whatsoever over such District (not exceeding 10 miles square) as may, bv cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States, and to exercise like authority over all places pur- chased by the consent of the legislature of tlie State in which the •jame shall be, for the erection of forts, magazines, arsenals, dock ^''ards, and other needful buildings." The delegation of power thus hade to Congress to acquire a seat of government for the United states, through a formal acceptance of cessions to be made by par- |icular States, is a distinct subject-matter, entirely separate and apart From the succeeding delegation of power to govern ''all places pur- chased by the consent of the legislature of the State in which the same shall be." Did the grant of an express power formally to accept sessions from particular States, which were to constitute and "become the seat of government of the United States," carry with it, as a tiecessary implication, the right to use the means necessary for the ?xecution of the power? In other words, did the implied "power to use such necessary means flow from the express power to accom]:)lish the end? In construing that clause which provides that Congress |hall have power "to make all laws which shall be necessary and )roper for carrying into execution the foregoing powers, and all other 6 KETROCESSION ACT OF 1846. powers vested by the Constitution in the Government of the United States, or in any department or officer thereof," it was held at an early day that the clause in question ''confers on Conc^ress the clioice of means and does not confine it to what is indispensably necessary. " (United States v. Fisher, 2 Cranch, 358.) In McCulloch v. Maryland (4 Wheat., 316) it was said that "The government which has a right to do an act, and has imposed on it the duty of ))erforming that act, must, according to the dictates of reason, be allowed to select the means; * * * Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not proliibited, but con- sistent with the letter and s})irit of the Constitution, are constitu- tional." In commenting on that conclusion in i\\e Legal Tender Case (12 Wall., 457) the Supreme Court said: "Suffice it to say in that case it was finally settled that in the gift by the Constitution to Con- gress of authorit}^ to enact laws 'necessar\^ and })roper' for the exe- cution of all the powers created by it, the necessity spoken of is not to be understood as an absolute one. On the contrary, this court then held that the sound construction of the Constitution must allow to the National Legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people." The express man- date was given by the Constitution to Congress to acquire a seat of government hy cessions from pariicuJar States, and in no other manner. Congress was powerless to force any State to nialve a cession; it could not go be^'ond the limits of the States. It could only persuade; it could not command. Congress did not offer to the ceding States any money consideration whatever for their cessions. The means, and the only means, Congress saw fit to emj^loy to accom- plish a vitally important end was the i)romise, made in the act of July 16, 1790, that the seat of government to be located on the ces- sions should be "permanent." The act expressly declared that "the district so defined, limited, and located shall be deemed the district accepted by this act for the iJirmanent seat of government of the United States. '^ When Mr. Madison moved, in the House of Representa- tives, to strike out the word "permanent" from this act, he was voted down; and thus we have a legislative inter])retation, j^ractically con- temporaneous, to the effect that the Constitution intended to confe upon Congress the power to make the seat of government permanent Contemporary interpretation of the Constitution, practiced and accjui esced in for vears, conclusively fixes its construction. (Stuart v Laird, 1 Cranch, 299: Martin f. Hunter, 1 Wlieat., 304; Cohens /' A^irginia, 6 Wheat., 264; Coolev r. Phila. Post Wowdens, 12 How. 299; Burrow Giles Lithogra])liic Co. v. Sarony, 111 U. S., 53.) Thus it was settled at the outset, by a practically contemporaneous con- struction of the Constitution, that Congress, as a means of executing the express power and duty to secure a seat of government by cessions from particular States, which could not be compelled to cede any- thing, and to which no direct consideration was paid, was authoiizedj to promise, as an inducement to the ceding States, that the seat of government to be fixed on the territory granted by them should be "permanent." Without the employment of such "necessary anc'' proper" means, how could the exi)ress power have been executed atj all? If tliat be true, then the power in question was exhausted b^j BETEOCESSIOK ACT OF 1846. 7 its exercise under the act of July 16, 1790, and the entire territory ceded and accepted hy Congress under tliat act vas forever dedicated as "the seat of tJie Government of the United States. " Such was the view of the 14 Senators who opposed the j^assage of the act of retrocession on July 2, 1846. I Some years ago when a movement was on foot to remove the qapital to the valley of the ^lississippi, the effect of the action of Con- ^iress under section 8, Article I, was fully discussed. I am informed hat it was then universally admitted that by the selection of the W'esent seat of government the power of Congress, under the section hi question, had been exhausted, and that any future removal can |)nly be accomplished through an amendment of the Constitution. l!l.— ACT OF 1846 UNCONSTITUTIONAL BECAUSE IN CONFLICT AVITH SECTION 10, ARTICLE I, OF THE CONSTITUTION. Conclusive as were the objections made in Congress to the const i- ftutionality of the act in cpiestion, under section 8, Article I, of the Constitution, an objection more conclusive still, depending upon an entirely different section, escaped observation through the failure of busv statesmen to examine the terms of the original cessions through ; which the territory in question was derived. The record shows that no examination whatever was made in that direction. When tlie three cessions through which the territory of the District was derived are examined, it appears that there were three grantors, the State of Virginia, the State of Maryland, and a group composed of 19 local proprietors. The grantee was "the Congress and Government of the United States." Thus it was that four parties entered into a quad- rilateral contract which passed, upon its execution, under the pro- tection of section 10 of Article I of the Constitution, which provides that no State shall "pass any bill of attainder, ex post facto law, or law impairing the obhgation of contracts." That phase of the mat- ter was in nowise considered during the debates of 1846. THE VIRGINIA GRANT OF DECEMBER, 1789. Section 2 of that act reads as follows: "Be it therefore enacted by the general assembly. That a tract of country, not exceeding ten miles square, or any lesser quantity to be located within tlie limits of this State and in any part thereof as Congress may by law direct, shall be >S and the same is forever ceded and relinquished to the Congress and Gov- ernment of the United States, in full and absolute right and jurisdiction, as well of soil as of persons residing or to reside thereon, pursuant to the tenor arid effect of the eighth section of tJie first article of the Constitution of the GovernTnent of the United States.'' GRANTS FROM NINETEEN LOCAL PROPRIETORS. On March 30, 1791, 19 local proprietors executed an agreement in which — We, the subscribers, in consideration of the great benefits we expect to derive from haAdng the federal city laid off upon our lands, do hereby agree and bind ourselves, heirs, executors, and administrators, to convey, in trust, to the President of the United States, or commissioners, or such person or persons as he shall appoint, by good and sufficient deeds, in fee simple, the whole of our respective lands which he may think proper to include Avithin the lines of the federal city, for the purposes and on the conditions following: The President shall have the sole power of directing the federal city to be laid off in what manner he pleases. 8 ' EETKOCESSION ACT OF 1846. lie may retain any number of squares he may think proper for public improv. ments, or other public uses; and the lots only which shall be laid off shall be a joii property between the trustees on behalf of the public and each present proprietoi and the same shall be fairly and equally di^'ided between the public and the indj \aduals, as soon as may be, the city shall be laid off. For the streets the proprietors shall receive no compensation; but for the squan or lands in any form, which shall be taken for public buildings, or any kind of pub lie improvements or uses, the proprietors whose lands shall be taken shall receive a the rate of £25 per acre, to be paid by the public. On or about June 29, 1791, these 19 original proprietors of tt greater part of the lands which now constitute the city of Washington in execution of the agreement of March 30, 1791, convej'ed them ii trust, by deeds in a form appended later on. In each one of thesi trust deeds it is provided that the lands in question are conveyed^ To and for the special trust following, and no other; that is to say: That all the said lands hereby bargained and sold, or such part thereof as may be thought necessary ox- proper to be laid out, together with other lands within the said limits, for a federal city, with such streets, squares, parcels, and lots as the President of the United Stated for the time being shall approve; and that the said Thomas Beall of George and John M. Gantt, or the sur\avor of them, or the heirs of such sur^dvor shall convey to the commissioners for the time being, appointed by \irtue of the act of Congress entitled "An act for establishing the temporary and permanent seat of the Government of the United States," and their successors, for the use of the United States forever. Thus it appears that the 19 local proprietors conveyed their lands to the United States forever, under the terms and conditions of section 2 of the act approved July 16, 1790, which provided ex- pressly as follows: "That the President of the United States be authorized to appoint, and by supplying vacancies happening from refusals to act or other causes, to keep in appointment as long as may be necessary, three commissioners, who, or any two of whom, shall, under the direction of the President, survey, and by proper metes and bounds define and limit a district of territory, under the limita- tions above mentioned; and the district so defined, limited, and located shall he deemed the district accepted by this act for the permanent seat of the Government of the United States.^' Acting under and by virtue of that section the President, by his proclamation of March 30, 1791, completed the acceptance and defined the boundaries of the said territory of 10 miles square. The terms of the proclamation are as follows : Now, therefore, for the purpose of amending and completing the location of the whole of said territory of 10 miles square, in conformity with the said amendatory act of Congress, I do hereby declare and make known that the whole of the said terri- tory shall be located and included within the four lines following; that is to say: Beginning at Jones Point, being the upper cape of Hunting Creek, in Virginia, and at an angle in the outset of forty-five degrees west of the north, and running in a direct line 10 miles, for the first line; then beginning again at the same Jones Point, and running another direct line, at a right angle with the first, across the Potomac 10 miles, for the second line; thence from the termination of said first and second lines, running two other lines of 10 miles each, the one crossing the Eastern Branch aforesaid and the other the Potomac, and meeting each other in a point. And I do accordingly direct the commissioners named under the authority of the said first-mentioned act of Congress to proceed forthwith to have the said four lines run, and by proper metes and bounds defined and limited, and thereof to make due report, under their hands and seals; and the territory so to he located, defined, and limited shall be the whole territory accepted by the said act of Congress as the district for the per- onancnt seat of the Government of the United States. It thus appears that three montJis before the 19 projyrietors made their grants to the Vnited States for a permanent seat of government, under the act of Congress of Julv 16, 1790, the President had EETEOCESSION ACT OF 1846. \ v.] The Mayor, etc., of Washington, and the United States, 4 Pet., 232. THE FINAL GRANT FROM MARYLAND. j|)finitely defined and accepted the territory of 10 miles square, g^cluding therein the grant from. Virginia. It thus appears that gpital condition precedent to the grant from the 19 proprietors was jTibodied in the fact that Virginia had ceded and tiie United States j^d accepted already from her a section of territory, constituting >'arly one-half of the total area embraced in "said territory of 10 (,.iles square.'" The border lines of the lands of the several original (jsmers of the site of the city of Washington, exclusive of Georgetown, ^ere laid down on the land, as a preliminary engineering ground- vj)rk, by Major L' Enfant in designing the map of the federal city, jid the plan of the city was subsequently mapped out over these> flies. In consequence of disputes as to the meaning of portions of tnje deeds from the original proprietors, the trustees refused to con- vey the streets and reservations to the commissioners to lay out the city, but the Supreme Court of the United States decided that the fe/e simple was vested in the United States._^ See Van Nessjmd wife I Maryland, the last to convej^, took no definitive or eft'ective action »rior to the passage of her act of December 19, 1791, entitled "An ct concerning the Territory of Columbia and the city of Washington." \ early as December 23, 1788, Maryland expressed her good inten- tijons in the following act under which no action w as ever taken: ACT To cede to Congress a district of 10 miles square in this State (Maryland) for the seat of the Government of the United States. Approved December 23, 1788. \ie it enacted by the general assunbly of Maryland, That the Representatives of this Si/ate in the House of Representatives of the Congress of the United States, appointed to] assemble at New York on the first Wednesday of March next, be, and they are hJereby, authorized and required, on behalf of this State, to cede to the Congress of tljie United States any district in this State not exceedinc; 10 miles square, which the CJongress may fix upon and accept for the seat of government of the United Slates. I As no conveyance could be made under this act except to "the Crongress," as distinguished from the Government of the United S^tates, and as no selection of a site had then been made there was no tjittempt to execute the power vested in the Representatives of Mary- iJand in the National House of Representatives. Virginia made her mant, which was the first grant, December 3, 1789; the 19 local ' proprietors perfected their grants on or about the 29th of June, 1791 ; Maryland did not make her grant until December 19, 1791. In that grant, embodied in a veiy elaborate act of 13 sections, Maryland put the fact beyond all question that the prior grants made by Virginia and the 19 proprietors vjere conditions precedent to her grant. In the S:'eamble the act recites the description of the boimdaries of the istrict in these terms: Beginning at Jones Point, being the upper point of Hunting Creek, in \'irginia, and at an angle at the out'^et forty-five degrees west of north, and running a direct line ten miles for the fiivt line; then beginning again at the same Jones Point and running another direct line at a right angle with the first across the Potomac ten miles for the second line; then from the terminations of the said first and second lines running two other direct lines ten miles each, the one across the Eastern Branch and the other Potomac, and meeting each other in a point, which has since been called the Territory of Columbia. 10 EETEOCESSION ACT OF 1846. After thus describing the prior grant from Virginia the Maryland act thus refers to tlie prior grant made by the 19 proprietors: Whereas Notley Young, Daniel Carroll, of Duddington, and many others, proprietors of the greater part of the land hereinafter mentioned to have been laid out in a city, came into an agreement, and have conveyed their lands in trust to Thomas Beall' son of George, and John Mackall Gantt, whereby they have subjected their lands to be laid out as a city, given up part to the United States, and subjected other parts to be sold to raise money as a donation to be employed according to the act of Congnjas for establishing the temporary and permanent seat of the Government of the Unitied States, under and upon the terms and conditions contained in each of the said dee(.,s; and many of the proprietors of lots in Carrollsburg and Hamburg have also come irito an agreement, subjecting their lots to be laid out anew, giving up one-half of the quan- tity thereof to be sold, and the money thence arising to be applied as a donation /as aforesaid, and they to he reinstated in one-half of the quantity of their lots in the nd^w location, or otherwise compensated in land in a different situation within the cii^y, by agreement between the commissioners and them, and in case of disagreement, that then a just and full compensation shall be made in money; yet some of tsae proprietors in Carrollsburg and Hamburg, as well as some of the proprietors of oth'er lands, have not, from imbecility and other causes, come into any agreement concernii^io their lands within the limits hereinafter mentioned, but a very great number of tl*ie landholders having agreed on the same terms, the President of the United State's directed a city to be laid out comprehending all the lands within a particuhir area defined by metes and bounds. With th«3 predicate thus laid the general assembly of Maryland enacted — That all that part of the said territory called Columbia which lies within the limits of this State shall be, and the same is hereby, acknowledged to be forever ceded ant 1 relinquished to the Congress and Government of the United States, and full aud absolute right and exclusive jurisdiction, as well of soil as of persons residing or i;o reside thereon, pursuant to the tenor and effect of the eighth section of the first artic le of the Constitution of Government of the United States. Immediately preceding that enacting clause we find, in the cor,- clusion of the preamble, the following declaration: • Whereas it appears to this general assembly highly just and expedient that all tthe lands ivithin the said city should contribute, in due proportion, in the means which haoe already greatly enhanced the value of the whole; that an incontrovertible title ought to b e made to the purchasers, under public sanction; that allowing foreigners to hold Ian d within the said territory will greatly contril)ute to the improvement and populatioi i thereof, and that many temporary provisions will be necessary till Congress exercisff'ect of such legislation nearly one-half of the subject- matter of the contract is withdrawn from its operation. The Supreme Court will determine for itself tli(> existence or nonexistence of the contract set up, and whether its obligation has been impaired by the state enactment. (Douglass v. Kentuck}', 168 U. S., 502, and cases cited.) In this case there can be no question that the c(uadri- lateral contract was executed between the ^States of Virginia, Mary- land, the 19 |)i()])ii(>t()rs, and tlie United States, and that such BETROCESSION AGT OF 1846. 13 V quadrilateral contract passed under the protection of the contract clause of the Constitution, before the District of Cohnnhia came into existence, for the simple and conclusive reason that the very exist- ence of such District was the result of the complete execution of such contract. Therefore as the c|uadrilateral contract was executed between the United States and the States in question, prdor to the existence of the District, section 10 of Article I, providing that "No State shall * * * pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts," operated upon it from the moment of its execution. That is no less true because such con- tract was executed between States. In Wolf v. New Orleans, 103 U. S., 367, it was held expressly that "The prohibition of the Consti- tution against the passage of laws impairing the obligation of con- tracts, applies to the contracts of the State, and to those of its agents acting under its authority, as well as to contracts between individ- uals. And that obligation so impaired, in the sense of the Consti- tution, when the means by which a contract at the time of its execu- tion could be enforced; that is, by which the parties could be obliged to perform it, are rendered less efficacious by legislation operating directly upon those means." In speaking of its duty in that regarcl in Murray v. Charleston (96 U. S., 448) the Supreme Court said that "it is one of the highest duties of this court to take care that the prohibition shall neither be evaded nor frittered away. Complete effect nmst be given to it in all its spirit." The attempted act of recession of 1846 is null and void because in conflict with sections 8 and 10 of Article I of the Constitution; the legislation of Virginia under irhich her sovereignty is now asserted is null and void because in conflict with section 10 of Article I of the Constitution. The practical dilemma is this: In 1846 two parties to a quadrilateral contract, protected by the contract clause of the Constitution — to wit, the t'nited States and Virginia — attempted to annul it without the assent of the other two parties, by withdrawing a large section of the consideration upon ivhich the contract was made. If that attempted recession upon the part of the United vStates and Virginia is valid, then the contract as a whole fails. Neither party is bound unless all are bound. If the United States and Virginia, as a matter of law, actually annuled the quadri- lateral contract, then Maryland and the representatives of the 19 proprietors can justly and legally claim every foot of land em- braced in the limits of the District as now defined. If the retroces- sion to Virginia is to stand, then the land underlying the Capitol, the White House, and the Treasure" belongs either to Maryland or the local propiietors by whom it was granted. The nation can only be protected against that result b}^ a judgment of the Supreme Court of the United States declaring the act of retrocession of 1846 to bo null and void. III. JURISDICTION OF THE SUPREME COURT OVER THE CONTROVERSY. Fortunately there is no real danger in the foregoing reductio ad horribiJe. The title of the United States to all the territory within the District as originally defined is perfect by reason of the fact that the act of recession of 1846 is clearly unconstitutional and void; (1) because of the reasons set forth in the debates in Congress at the 14 RETROCESSION ACT OF 1846. time of its j)iissresent location as is or shall be agreeably to law. And I do accordingly direct the said commissioners, appointed agreeably to the tenor of the said act. to proceed forthwith to run the said lities of experiment, and, the same being nm, to survey and, by proper metes and bounds, to define and limit the part wnthin the same which is hereinbefore directed for immediate location and acceptance, and thereof to make due report to me under their hands and seals. In testimony whereof 1 have caused the seal of the United States to be atfixed to these presents, and signed the same with my hand. Done at the city of Philadelphia the 24th day of Januarv. in the vtsar of our Lord 1791, and of the Independence of the United States the fifteenth. Georoe Washington. By the President: Thomas .Jefferso.nt. No. 4.— THE AMENDATORY ACT OF MARCH 3, 1791. AN ACT To amend " An act for establishing the temporarv and permanent seat of the Government of the United States." Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That so much of the act entitled "An act for establishing the temporary and permanent seat of the Government of the United States" as requires that the whole of the district of territory, not exceeding ten miles square, to be located on the river Potomac, for the permanent seat of the Government of the United States, shall be located above the mouth of the Eastern Branch, be, and is hereby, repealed, and that it shall be lawful for the President to make any part of the territory below the said limit, and above the mouth of Hunting Creek, a part of the said district, so as to include a convenient part of the Eastern Branch, and of the lands lying on the lower side thereof, and also the town of Alexandria, and the territory so to be included shall form a part of the district not exceeding ten miles square, for the permanent seat of the Government of the United States, in like manner aud to all intents and purposes as if the same had been within the purview of the above-recited act: Provided, That nothing herein ctmtained shall authorize the erection of the public buildings other- wise than on the Maryland side of the river Potomac, as required by the aforesaid act. Approved March 3, 1791. (1 Stats., 214.) RETKOCESSION ACT OF 1846. 19 V Xo.o— PKKSIDENT'S PROCLAMATION OF MAIU'll :«). 17!il. Whereas, by proclamation bearing date the 24th day of January, of this present year* and in pursuance of certain acts of the States of Maryland and Virginia and the Con" gress of the United States, therein mentioned, certain lines of experiment were directed to be run in the neighborhood of (leorgetown, in Maryland, for the purpose of locating a part of the territory of ten miles scjuare, for the permanent seat of Gov- ernment of the United States, and a certain part was directed to be located within the said lines of experiment on both sid(-s of the Potomac, and above the limits of the Eastern Branch, prescribed by the said acts of Congress; And Congress, by an amendatory act, passed on the 8d da>' oi this present month of March, ha^'e given further authority to the President of the United States "to make any part of Ihc said territoiif below the said limit and above the mouth of Hunting Creelc a part of said district, so as to include a convenient part of the Eastern Branch, and of the ■lands lying on the lower side thereof, and also the town of Alexandria:" Now, therefore, for the purpose of amending and completing the location of the whole of said territory of ten miles square, in conformity with the said amendatory act of Congress, I do hereljy declare and make known that the whole of the said terri- tory shall be located and included within the four lines following, that is to say: Beginning at Jones's Point, being the upper cape of Hunting Creek, in Virginia, and at an angle in the outset of forty-five degrees west of the north, and running in a direct line ten miles, for the first line; then beginning again at the same Jones's Point, and running another direct line, at a right angle with the first, across the Potomac ten miles, for the second line; thence from the termination of said first and second lines, running two other lines of ten miles each, the one crossing the Eastern Branch aforesaid and the other the Potomac, and meeting each other in a point. And I do accordingly direct the connnissioners named under the authority of the said first-mentioned act of Congress to proceed forthwith to have the said four lines run, and by proper metea and bounds defined and limited, and thereof to make due report, under their hands and seals; and the territory so to be located, defined, and limited shall be the whole territory accepted by the said act of Congress as. the district for the permanent seat (jf the Gf)vernment of the United States. In testimony whereof 1 hav(^ caused the seal of the United States to be afKxed to these presents, and signed the same with my own hand. Done at Georgetown afore- said the 30th day of ^larch, in the year of our Lord 1791. and of the Indep<-ndence of the United States the fifteenth. [seal.] Ge()R(;i-: Wa.'^hinctox. By the President: Thomas Jekferson. No. »).— A(iREEMENT OF THE ORIGINAL PROPKIKTORS OF MARCH m, 17in. On March 28, 1791, President Washington reached (Tcorgetown, and on the 29th he rode over the proposed site of the Federal city, in company with the three commis- sioners and the two surveyors, Andrew EUicott and Maj. Peter Charles L'Enfant. On the evening of the same day a meeting was held for the purpose of effecting a friendly agreement between the proprietors of the lands constituting the site of the Federal city and the United States commissioners, and Washington's good counsel on that occasion had so favorable an el'fect that the general features w ere settled that very evening for the agreement, whidi was signed and executed by nineteen property holders the next day. and thereby the rights of and titles to property within this Dis- trict and city may be said to have been decided on that evening. This agreement, which was accepted by the commissioners and recorded in their hooks on A])ril 12, 1791. was as follows: "We, the subscribers, in consideration of the great benefits we expect to derive from having the I'Y'deral city laid off upon oui- lands, do hereby agree and bind our- selves, heirs, executors, and administrators, to convey, in trust, to the President of the United States, or commissioners, or such person or |)ersons as he shall appoint, by good and sufticient deeds, in fee simple, the whole of our respective lands which he may think proper to include witliin the li?ies of the Federal city, fcr the purposes and •on the conditions following: "The President shall ha\'e the sole j)ower of directing the l''ederal city to be laid off in what manner he pleases. "He may retain any number of squares he may think proper for public improve- ments, or other public uses; and the lots only which shall be laid off shall be a joint property between the trustees s, or any kind of pub- lic improvements or uses, the proprietors whose lands shall ))p taken shall receive at the rate of 25 pounds per acre, to be paid by the public. ■"The whole wood on the lands shall be the property of the proprietors, and should any be desired by the President to be reserved or left standing, the same shall be paid for by the public at a just and reasonable valuation, exclusive of the £25 per acre to be paid for the land on which the same shall remain. "Each proprietor shall retain the full possession and use of his land until the same shall be sold and occu])ied by the purchase of the lots laid out thereon, and in all cases where the public arrangements as the streets, lots, etc., will admit of it, each proprietor shall jiossess his buildings and other improvements and graveyards, pay- ing to the public only one-half the present estimated value of the land, on which the same shall be, or £12 lOsh. per acre; but in cases where the arrangements of the streets, lots, squares, etc., will not adniit of this, and it shall become necessary to remove such buildings, etc., the proprietors of tljc same shall be paid the reasonable value thereof b>- the public. ■'Nothing herein contained shall affect the lots any of the paities to this agreement may hold in the towns of Hamburgh or Carrolsburg. "In M'itness whereof we have hereunto set our hands and seals this 30th day of -M.irch, in the year of our Lord 1791. " ROHEKT PeTEK. [seal.] "David Burxes. [seal.] ■Jas. M. Lingan. [seal.] ■"I'hiah Forrest. [seal.] [Jenjamix Stoduekt "notley youxg. "Daxiel Carroll of IKdoingtox. "OVERTOX CaRR. ■'Thomas Beale oi- George. "Chas. Beatty. "Anthony IIolmead. [seal.] 'Wm. Youxg. "Edward Pierce. "Abraham Youxg. "Jas. Pierce. [seal.] seal.] seal.] seal.] seal.] SEAL.] seal.] SEAL.] SEAL.] SEAL.l SEAL.] SEAL.] ""^^'M. PrOUT. ■ Robert Peter, ''As Attorney in Fad for EUphas Douglass. "Benjamin Stoddert, [seal.] "For Jas. Warren, hi/ irritteri aufhoriti/ from IV. Warren. "Wm. King. [seal.] "Signed and sealed in presence of Mr. Thomas Beale. makiiii: an exception of the laud he sold A. C. Young not yet conveyed. • "'Witness to all subscribers, including Wni. Yihiiil;. "Wm. Bailey. "'Wm. Robertson. "'John Luter. "Sam. Davidso.n (witness to Abraham Young signing. "'Benjamin Stoddert (witness to Pierce's signingi. "'Joseph E. Rowles (for Jno. Warring). ■"Wm. 1)k.aki\(;. Jr. (for Wm. Prout and Win. Kiuiii. ' No. 7.— FOKM OF TRUST DEED USED BY THE NINETEEN ORIGINAL PROPRIETORS On or about the 29th of June, 1791, nineteen original jjroprietors of the greater parts of the lands which now constitute the cit\' of Washington conveyed them in trust, by deeds in the following form, viz: [Copy of the deed iu tnisi from au original proprietor of t lie ground on wliicb the city of Washington is located to the trustees appointed hy authority of the united States to receive the same.] This indenture, made this 29th day of June, in the year of our Lord one thousand seven hundred and ninety-one, between (here is inserted the name of the grantor), of the State of Maryland, of the one part, and Thomas Beall, of George; and John M. Gantt, of the State of Maryland, of the other part, witnesseth: That the said — (the grantor), for and in consideration of the sum of five shillings, to him in hand paid bv the same Thomas Beall, of (ieorge, and John M. (iantt. before the sealing and de- BETROOESSIOX ACT OF 184fi. 21 • livery of these presents, the receipt whereof he cloth hereby acknowledge, and thereof doth acquit the said Thomas Beall. of George, and John M. Gantt, their executors and administrators; and also, for and in consideration of the uses and trust hereinafter mentioned, to be performed by the said Thomas Beall, of George, and John M. Gantt, and the survivor of them, and the heirs of such survivor, according to the true intent and meaning thereof, hath granted, bargained, sold, aliened, released, and confirmed, and by these presents doth grant, bargain, sell, alien, release, and confirm unto the said Thomas Beall, of George, and John M. "Gantt, and the survivor of them, and the heirs of such survivor, all the lands of him, the said (grantor) lying and being within the following limits, boundaries, and lines, to wit: Beginning on the east side of Rock Greek, at a stone standing in the middle of the main road leading from Georgetown to Bladensburg; thence along the middle of the said road to a stone standing on the east side of the Reedy Branch of Goose Creek; thence southeasterly, making an angle of 61 degrees and twenty minutes with the meridian, to a stone standing in the road leading from Bladensburg to the Eastern Branch ferry; thence south, to a stone eighty poles north of the east-and-west line already drawn from the mouth of Goose Creek, to the Eastern Branch; then east, parallel to the said east-and-west line, to the Eastern Branch; thence by and with the waters of the Eastern ]3ranch, Potomac River, and Rock Creek to the beginning, with their appurtenances, except all and every lot and lots of which the said (the grantor) is seized or to which he is entitled in Carrollsburg or Hamburg; to have and to hold the hereby bargained and sold lands with their appurtenances to the said Thomas Beall of George and John M. Gantt, and the survivor of them, and the heirs of such survivor forever: To and for the special trust following, and no other; that is to say: That all the said lands hereby bargained and sold, or such part thereof as may be thought necessary or proper to he laid out, together with other lands within the said limits, for a Federal city, with such streets, squares, parcels, and k)ts as the President of the United States for the time being shall approve; and that the said Thomas Beall. of George, and John M. Gantt, or the survivor of them, or the heirs of such survivor shall convey to the commissioners for the time being, appointed by virtue of the act of Congress entitled "An act for establishing the temporary and jiermanent seat of the Government of the United States," and their successors, for the use of the United States fqrever, all the said streets and such of the said squares, ])arcels, and lots as the President shall deem proper, for the use of the United States: and that as to the residue of the said lots, into which the said lands hereby bargained and sold shall have been laid off and divided, that a fair and equal division of them shall be made. And if no other mode of division shall be agreecl on by consent of the said (the grantor) and the commissioners for the time being, then such residue of the said lots shall be divided, every other lot alternate to the said (the grantor), and it shall, in that event, be determined by lot, whether the said (the grantor ) shall begin with the lot of the lowest number laid out on the said lands or the following number. And all the said lots which may in any manner be divided or assigned to the •said (the grantor i shall, thereupon, together with any part of the bar- gained and sold lands, if any, which shall not have been laid out in the said city, be conveyed by the said Thomas Beall of George and John M. Gantt, or the survivor of them, or the heirs of such survivor, to him, the said (the grantor), his heirs and assigns. And that the said other lots .shall and may be sold at such time or times, in such manner, and on such terms and conditions as the President of the United States for the time being shall direct; and that the said Thomas Beall of George and John M. Gantt, or the survivor of them, or the heirs of such survivor, will, on the order and direction of the President, convey all the said lots so sold and ordered to be conveyed to the respective purchasers in fee simple, according to the terms and con- ditions of such ])urchases; and the produce of the sale of the said lots when sold as aforesaid shall in the first place be applied to the payment in money to the said (the grantor), his executors, administrators, or assigns, for all the part of the land hereby bargained and sold which shall have been laid off into lots, squares, or parcels, and appropriated as aforesaid to the use of the United States, at the rate of twenty-five pounds per acre, not accounting the said streets as part thereof. And the said twenty-five pounds per acre, being so paid, or in any other manner satis- tied, that then the produce of the same sale, or what thereof may remain as aforesaid, in money or securities of anj- kind, shall be paid, assigned, transferred, and delivered over to the President of the United States, for the time being, as a grant of money, and to be applied for the purposes and according to the act of Congress aforesaid. But the said conveyance to the said — (the grant(ir), his heirs or assigns, as well as the conveyance to the purchasers, shall be on, and subject to such terms and con- ditions as shall be thought reasonalde, by the President, for the time being, for regu- lating the materials and manner of the buildings and improvements on the lots, generally, in the said city, or in particular streets, or parts thereof, for common con- A'enience, safety, and order: Frovided. Such terms and conditions be declared before 22 RETRO<_;ESSI()^' act of 1«4(). the sales of any of the said lots, under the direction of the President. And in trust further, and on the agreement that the said . (the graiitor), his heirs or assigns, shall aud may continue his possession and occupation of the said lands hereby bargained and sold, at his and their will and pleasure, until they shall be occupied under the said appropriations for the use of the United State.s as aforesaid, or by pur- chasei's; aud when any lots or parcels shall be occtipied under purchase or appropri- ations as aforesaid, then, and not until then, shall the said (the grantor) relinquish his occupation thereof. And in trust also, as to the trees, timber, and wood, on the premises, that he the said (the grantor), his heirs or assigns, may freely cut down, take, and carry away, and use the same as his and their property, except such of the trees and wood growing as the President (ir c-omnii-ia and the city of \\asliinj;lon. (l^assed Decemtier ISi, 1791.] Whereas the President of the I'nited States, by virtue of se\-eral acts of ("ougress. and acts of the assemblies of .Maryland and Virginia, l»y his [jroclaination, dated at Georgetown on the thirtieth day of March, seventeen hundred and ninety-one, did declare and make known that the whole of the territorj- of ten miles square, for the permanent seat of government of the United States, shall be located and included within the four lines following, that is to say: Beginning at Jones Point, being the upper point of Hunting Creek, in \irginia, and at an angle at the outset forty-five degrees west of north, and running a direct line ten miles for the first line; then begin- ning again at the same Jones Point and running another direct line at a right angle with the first across the Potomac ten miles for the second line; then from the termina- tions of the said first and second lines running two other direct lines ten miles each. KETKOOESSION ACT OF 1846. 23 V the oue acro^^ the Easterji Branch ann called the City of Washington; and Whereas it appears to this general asseml)ly highly just and ex])edient that all the lauds within the said city should contribute, in due ])roportion, in the means which have already greatly enhanced tlie value of the whole; that an incontrovertible title ought to be made to the purchasers, under public sanction; that allowing foreigners to hold land within the said territory will greatly contribute to the improvement and popula- tion thereof; and that many temporary provisions will be necessary till Congress exercise the jurisdiction and government over the said territory; and Whereas in the cession of this State, heretofore made, of territory for the (Government of the United States, the lines of such cession could not be particularly designated; and it being expedient and propter that the same should be recognized in the acts of this State — 2. Be it enacted by the General Assembly of Maryland, That all that part of the said territory called Columbia which lies within the limits of this State shall be, and the same is hereby, acknowledged to be forever ceded and relinquished to the Congress and Government of the United States, and full and absolute right and exclusive jiu-is- diction, as well of soil as of persons residing or to reside thereon, pursuant to the tenor and effect of the eighth section of the first article of the Constitution of Government of the United States: Provided, That nothing herein contained shall be so construed to vest in the United States any right of property in the soil as to affect the rights of individuals therein, otherwise than the same shall or may be transferred by such individuals to the United States: And provided also, That the jm-isdiction of the laws of this State over the persons and property of individuals residing within the limits of the cession aforesaid shall not cease or determine until Congress shall, by law, provide for the government thereof, under their jurisdiction, in manner proAdded by the article of the Constitution before recited. 3. And be it enacted, That all the lauds belonging to minors, persons absent out of the State, married women, or persons non compos mentis, or the lands the property of this State, within the limits of Carrollsbiu'g and Hamburg, shall be and are hereby sub- jected to the terms and conditions hereinbefore recited, as to the lots where the propri- etors thereof have agreed concerning the same; and all the other lands, belonging as aforesaid, within the limits of the said city of Washington, shall be, and are hereby, sub- jected to the same terms and conditions as the said Notley Young, Daniel Carroll of Dud- dington, and others, have, by their said agreements and deeds, subjected thek lands to, and where no conveyances have been made, the legal estate and trust are hereby invested in the said Thomas Beall, son of George, and .John Mackall Gantt, in the same 24 RETEOCESSTOA' ACT OF 1846. manner as if eacli proprietor had been competent to make, and had made a h-gai con- veyance of his or her knd, according to the form of those ah-eady mentioned, with proper acknowledgments of the execution thereof, and where necessary, of release of dower, and in every case where the proprietor is an infant, a married woman, insane, absent out of the State, or shall not attend on tlu'ee months" advertisement of notice in the Maryland Journal and Baltimore Advertiser, the Maryland Herald, and in the Georgetown and Alexandria papers, so that allotment can not take place by agree- ment, the commissioners aforesaid, or any two of them, may allot or assign the portion or share of such proprietor as near the old situation as may be, in Carrollsburg and Ham- burg, and to the full value of what the party might claim under tlie terms before recited; and as to the otlier lands within the said city, the commissioners aforesaid, or any two of them, shall make such allotment and assignment, within tlie lands belonging to the same person, in alternate lots^ determined by lot or ballot, whether the party shal)_ begin with the lowest number: Proiidefl, That in the cases of cover- ture and infancy, if the husband, guardian, or next friend will agree with the com- missioners, or any two of them, then an effectual division may l)e made by consent; and in case of contrary claims, if the claimants will not jointly agree, the commissioners may proceeil as if the pro])rietor was absent; and all person;^ to whom allotments and assignments of lauds shall he made by the commissioners, or any two of them, on con- sent and agreement, or pursuant to this act without consent, shall hold the same in their former estate and interest, and in lieu of their former (piantity, and subject in every respect to all such limitations, conditions, and incumbrances as their former estate and interest, and in lieu of their former quantity, and subject in every respect to all such limitations, conditions, incumbrances as then- former estates and interests were subject to, and as if the same had been actually reconveyed pursuant to the said deed in trust . ' 4. And he it eitarted, That where I he proprietor or jiropricior.-, possessor or posses- sors, of any lands within ihe limits of the city of Washington, or wiihin the limits of CarroUsburg or Hamburg, who haAe not alreatly, or who shall not, wiihin three months of this act, execute deeds in trust to the aforesaid Thomas l^eall and John M. Gantt, of all their land within the limits of the said city of \\'ashington, and on the terms and conditions mentioned in the deeds already executed by Xotl(>y Young and others, and execute deeds in trust to the said Thomas Beall and ,Iohn M. (lantt of all their lots in the towns of Carrollsliurg and Hamburg on the same terms and conditions contained in the deeds already executed by the greater part of the i)roprietors of lots in the said towns, the said commissioners, or any two of them, shall and may, at any time or times thereafter, issue a process, directed to the sheriff of Prince Georges County, com- manding him, in the name of the State, to summon five good, substantial freeholders, who are not of kin to any proprietor or proprietors of the lands aforesaid, and who are not proprietors themselves, to meet on a certain day, and at a certain place within the limits of the said city, to inquire of the value of the estate of such i)roprietor or pro- prietors, po.ssessor or possessors, on which day and place the said sheriff shall attend, with the freeholders by him summoned, which freeholders shall take the following oath, or affirmation, on the land to be by them valued, to wit: "I, A. 13., do solemnly swear (or affirm) that I will, to the best of my judgment, value the lands of CD. now to be valued so as to do equal right and justice to the said 0. D. and to the public, taking into consideration all circumstances," and shall then proceed to value the said lands; and such valuation, under their hands and seals and under the hand and seal of the said sheriff, shall be annexed to the said process and returned 1)\- the sheriff to the clerk appointed by virtue of this act, who shall make record of the same, and the said lands shall, on the payment of such valuation, be and is hereby vested in the said commissioners in trust, to be disposed of by them or otherwise employed to the use of the said city of Washington; and the sheriff aforesaid and freeholders aforesaid shall be allowed the same fees for their trouble as are allowed to a sheriff and juryman in executing a writ of inquiry; and in all cases where the proprietor or ])ossessor is tenant in right of dower or by the courtesy the freeholders aforesaid shall ascertain the annual value of the lands and the gross value of such estate therein, and upon i>aying such gross value or securing to the possessor the i)aymeut of the annual Naluation, at the option of the proprietor or possessor, the commissioners shall be and are hereby vested with the whole estate of such tenant, in manner and for the uses ai\d ])urposes aforesaid. 5. And he it enacted, That all the squares, lots, and parcels of laud within the said city which have been or shall be appropriated for the use of the United States, and all the lots and parcels which have been or .shall l>e sold to raise money as a donation a.s aforesaid shall remain and be to the purcha-sers, according to the terms and conditions of their respective purchase; and purchases and leases from private persons claiming to be proprietors, and having, or those under whom they claim having, been in the possession of the lands purchased or leased, in their own right, five whole years next before the passing of this act, shall be good and effectual for the estate, and on the RETROCESSION ACT OF 1846. 25 terms and conditions of such purchases and leases, respectively, without impe'ach- ment, and against any contrary title now existing; but if any person hath made a con- veyance, or shall make. a conveyance or lease, of any lands within the said city, not having right and title to do so, the person who might be entitled to recover the land under a contrary title now existing may, either by way of ejectment against the tenant or in an action for money had and received for his use against the bargainer or lessor, his heirs, executors, administrators, or devisees, as the case may require, recover all money received by him for the squares, pieces, or parcels appropriated for the use of the United States, as well as for lots or parcels sold and rents received by the person not having title as aforesaid, with interest from the time of receipt; and, on such recovery in ejectment, where the land is in lease, the tenant shall thereafter hold under, and pay the rent reserved to, the person making title to and recovering the land; but the possession bona fide acquired in none of the said cases shall be changed. 6. And be it enacted, That any foreigner may, by deed or will hereafter to be made, take and hold lands within that part of the said territory which lies within this State in the same manner as if he were a citizen of this State; and the same lands may be conveyed by him and transmitted to and inherited by his heirs or relations as if he and they were citizens of this State; provided that no foreigner shall, in virtue hereof, be entitled to any further or other privilege of a citizen. 7. And be it enacted, That the said commissioners, or any two of them, may appoint a clerk for recording deeds of land within the said territory, who shall provide a proper book for the purpose, and therein record, in a strong, legible hand, all deeds duly acknowledged, of lands in the said territory delivered to him to be recorded, and in the same book make due entries of all divisions and allotments of lands and lots made by the commissioners in pursuance of this act, and certificates granted by them of sales, and the purchase money having been paid, with a proper alphabet in the same book of the deeds and entries aforesaid, and the same book shall carefully preserve and deliver over to the commissioners aforesaid, or their successors, or such person or persons as Congress shall hereafter appoint, which clerk shall continue such during good behavior, and shall be removable only on a conviction of misbehavior in a court of law; but before he acts as such he shall take an oath or affirmation well and truly to execute his office, and he shall be entitled to the same fees as are or may be allowed to the clerks of the county courts for searches, copying, and recording. 8. And be it eruicted, That acknowledgments of deeds made before a person in the manner and certified as the laws of this State direct, or made l^efore and certified by either of the commissioners shall be effectual; and that no deed hereafter to be made, of or for lands within that part of the said territory which lies within this State, shall operate as a legal conveyance, nor shall any lease for more than seven years be effectual, unless the deed shall have been acknowledged as aforesaid, and delivered to the said clerk to be recorded within six calendar months from the date thereof. 9. And be it enacted. That the commissioners aforesaid, or some two of them, shall direct an entry to be made in the said record book of every allotment and assignment to the respective proprietors in jjursuance of this act. 10. And for the encouragement of master builders to undertake the building and finishing houses within the said city by securing to them a just and effectual remedy for their advances and earnings, Be it enacted. That for all sums due and owing on written contracts for the building any house in the said city, or the brickwork or car- penters' or joiners" work thereon, the undertaker or workmen employed by the person for whose use the house shall be built shall have a lien on the house and the ground on which the same is erected, as well as for the materials found by him: Provided, The said written contract shall have been acknowledged before one of the commissioners, a justice of the i)eace, or an alderman of the corporation of (Jeorgetown and recorded in the office of the clerk for recording deeds, herein created, within six calendar mouths from the time of acknowledgment as aforesaid, and if within two years after the last of the work is done he proceeds in equity he shall have as upcm a mortgage, or if he proceeds at law within the same time he may have executiun against the house and land, in whose hands soever the same may be; but this retnedy shall be considered as additional only, nor shall, as to the land, take place of any legal incumhrancf made prior to the commencement of such claim. 11. And be it enacted. That the treasiu'er of the western shore be empowered and required to pay the seventy-two thousand dollars agreed to be advanced to the Pres- ident by resolutions of the last sessions of assembly, in stuns as the same may come to his hands on the appointed funds, Avithout waiting for the day appointed for the payment thereof. 12. And he it enacted. That the commissioners aforesaid for the time being, or any two of them, shall from time to time, until Congress shall exercise the jurisdiction and government within the said territory, have power to license the building of wharves S. Doc. 286, 61-2 3 26 RETROCESSION ACT OE 1846. jn the water? of the Potomac and the Eastern Branch, adjoining the .-aid city, of the materials, in the manner and of the extent they may judge durable, convenient, and agreeing with the general order; but no license shall be granted to one to build a wharf before the land of another, nor shall any wharf be built in the waters A\-ithout license as aforesaid; and if any wharf shall be built mthout such license, or different there- from, the same is hereby declared a common nuisance. They may also, from time to time, make regulations for the discharge and laying of ballast from ships or vessels lying in the Potomac River above the lower line of the said territory and Georgetown, and from ships and vessels lying in the Eastern Branch. They may also, from time to time, make regulations for landing and laying materials for building the said city, for disposing and laying earth which may be dug out of the wells, cellars, and founda- tions and for ascertaining the thickness of the walls of houses, and to enforce the observ- ance of all such regulations by appointing penalties for the breach of any one of them not exceeding ten pounds current money, which may be recovered in the name of the said commissioners, by warrant, before a justice of the peace, as in case of small debts, and disposed of as a donation for the purpose of the said act of Congress. And the said commissioners, or any two of them, may grant licenses for retailing distilled .spirits within the limits of the said city, and suspend or declare the same void. And if any person shall retail or sell any distilled spirits, mixed or unmixed, in less than ten gallons to the same person, or at the .same time actually delivered, he or she shall forfeit for every such sale three pounds, to be recovered and applied as aforesaid. 13. And be it enacted, That an act of assembly of this State to condemn lands, if necessary, for the public l)uildings of the United States be. and is hereby, repealed. LIBRftRY OF CONGRESS 009 880 200 9 LIBRARY OF CONGRESS 009 880 200 9 ^