In pursuance of a resolution of the last session of General Assembly the Executive proceeded to form a Contract with Messrs. Penet Windel & co. for the establishment of a manufactory of fire arms and foundery of ordnance on James river and for extending navigation through it’s falls. The several preliminary papers which passed between them are now transmitted to the General Assembly, that they may be enabled to judge of the obstacles the executive had to encounter, and to see the reasons explained which led them to the several conclusions. These articles also, as ultimately concluded, accompany this,1 together with a subsequent letter from Mr. Penet and memorial from Mr. Savarit desiring some alterations in two of the articles.

The several objects of this Contract must be admitted of the last importance: The depending on the transportation of arms across an element on which our enemies have reigned, for the defence of our Country, has been already found insecure and distressing. The endeavours of five years aided with some internal manufactures have not yet procured a tolerable supply of arms. To make them within ourselves then as well as the other implements of war, is as necessary as to make our bread within ourselves. The present contract seems really to afford a promising appearance of future supply. Should these Articles meet with ratification from the General Assembly, I must still inform them that obstacles are likely to arise of a very perplexing nature, from an unlucky connection of the public with a certain Mr. Ballendine who has entangled himself into every part of the subjects of this contract. Some of his rights are real, some only pretended. Unless they can be cleared away by legislative authority in a speedy mode, liberal compensation being first allowed him for such of them as shall be found just, the length of time which would be required to follow him through courts of justice in the ordinary course of proceedings, will defeat every hope which might be entertained from this contract. The duty imposed on the Executive by the resolution of assembly led them necessarily to an investigation of this mans rights and pretensions. That the assembly may have proper lights to conduct their enquiries I will analyse his claims as they have appeared to us. They refer to three several subjects, which I will endeavour to keep distinct, to avoid that confusion they might otherwise throw on one another. 1. to the Furnace in Buckingham. 2. to the Foundery at Westham. 3. to the construction of a navigable Canal at the falls of James river.

1. Mr. Ballendine with a partner Mr. Reveley received by order from the assembly £5000 in the year 1776 for the purpose of erecting a furnace in Buckingham and stipulated to repay it in pig iron at Seven pounds ten shillings the ton, which in fact amounted to a contract to pay the public 666 ⅔ tons of pig iron for it. In December 1777 he received a further sum of £2500. In may 1778 he petitioned the assembly to release him from the obligation of paying his debt in iron @ £7.10/ the ton, and to take it at the market price at the time of delivery of the iron. The assembly resolved that he should be allowed more than the £7.10. but not the market price at the time of delivery; thus signifying their sense that there was some intermediate ground on which they meant to take their stand, but not pointing out what that was. This led us to suppose that the market price of iron at the time of the paiment of the money to Ballendine might be what the assembly had probably in view. On settlement of his several accounts with the commissioners whom we appointed according to the resolution of assembly for that purpose and whose report is transmitted herewith, there arose on one of them a balance in his favor for part of 3T-10C-2qr. of pig iron delivered. The commissioners had extended it in money at £30. the ton, and transferred the balance of £42–5 which that produced to the credit of his account for the £5000. or 666 ⅔ ton of iron. We think they should have credited so much of the 3T–10C–2qr. of iron at £30. as would have balanced that account and transferred the residue, in iron, to the credit of his debt due in iron. This error would have been too trivial to have noted to you, Sir, but as it tended to introduce a false principle into the account, and to prevent us from informing you precisely that of the 666⅔ tons due to the public for the £5000. there has been paid only 1T–3C and nothing paid towards discharging the additional £2500. To secure these balances the lands in which the money was invested were conveyed to the trustees themselves, but under an implied trust, that on payment of the debt conveyances should be made to Ballendine and Reveley: so that it is apprehended they amount in fact to nothing more than mortgages. There is little hope that this balance will ever be paid; an opportunity now occurs not only of making these securities produce to the public the real worth of what was advanced on them, but also of producing it in arms and implements of war, the very articles originally proposed to be obtained by it, and which of all others are most immediately essential to the public safety. But a bill for foreclosing the trust to pass through the usual forms of proceedings in a Court of Chancery will hardly bring us relief till I hope we shall not need it.

2. The General Assembly in May 1776 having determined to erect a foundery at Westham for casting ordnance appointed commissioners for that purpose. For the Sum of £242.10. which they paid Mr. Ballendine they purchased from him for situating the foundery three acres and an half of land adjacent to a canal he was opening from Westham, and a right to deduce water from the canal for turning a boring Mill and other works necessary for the finishing the cannon. They were also to have free navigation down the canal to the foundery on contributing one moiety to the repairs of that part of the canal; after it should have been once completed, as he bound himself to compleat it. They erected their foundery and found it necessary to make advances of money to Ballendine to enable him to complete his canal and dam on which alone they depended for water. The balance due the Commonwealth on these advances is £2051–2–5 ½ as appears by one of the accounts transmitted herewith: for securing which payments a mortgage had been taken on 46 ½ acres of land the whole of the real property of the said Ballendine at that place. So that the public possessions and interests at this place are 3 ½ acres of land with the foundery on it, a right to draw off water for working their machines for completing the canon, a common in the navigation, paying one half the expence of keeping that part of the canal in repair, and a mortgage on 46½ acres of land for securing the paiment of £2051–2–5½. But for the state of Mr. Ballendine’s dam and canal and the prospect of obtaining water as long as he is to be depended on for it, I beg leave to refer you to the report of the same commissioner.

3. The extending navigation from Westham to Richmond, besides it’s other very general importance, being extremely requisite to promote the success of the proposed manufactory, by reducing the difficulty and expence attending the transportation of the bulky articles of coal, wood and other things necessary to be expended at it, and it’s own very weighty produce, we were led to enquire by what means Mr. Ballendine had got foothold there and on what pretensions he founds a right of constructing the navigable canal. In 1764. the assembly passed an act authorising the opening the falls of James river by subscriptions of money from individuals and appointing Trustees to take such subscriptions. Some persons accordingly subscribed, but no appearance arising of the work’s being ever compleated in this way, the assembly after waiting 8 years, to wit, in 1772. passed another act for putting the business into a different train. They directed that as soon as the former and subsequent subscribers or a majority of them should think a sufficient sum raised, any ten of them, being subscribers of £100. each at least, might appoint a general meeting at which a president and 11 directors should be elected, who should have power to agree with an undertaker to cut the canal proposed, provided such undertaker should first give sufficient security to perform his agreement: they gave to the adventurers authority to carry the canal through any person’s lands, paying the worth of them, allowed them certain tolls, and pointed out the precise mode in which they might transfer their shares in the undertaking, to wit, by deed executed by the president, the subscriber having first tendered his share to the directors who were to have the refusal at the same price. Very considerable sums were engaged under this act: but there never was a meeting of the subscribers to elect a president and directors, nor an undertaker employed. While this was in agitation Mr. Ballendine proposing to clear the falls of James river and the falls of Potowmack set on foot subscriptions for enabling him to go to England to learn how to do it. Great sums were subscribed. He went; returned, and brought some workmen. He purchased at the head of the falls of James river the 50 acres of land, three and a half of which were conveyed as before mentioned to the public for the foundery, and the other 46½ mortgaged to them. He opened a canal through this land and then of his own authority, without any act of assembly or even an order of court, as we are told, he made a dam across an arm of James river and drew off 50 feet width of water along his canal. In November 1777. by Petition to the assembly he informs them that the subscribers under the last act of assembly had transferred their interests to him, that he had made considerable progress in the canal, and should finish it if he met with no interruption from those through whose lands it must pass, and prays an act might pass vesting him with the powers of the former subscribers. Had the allegation in his Petition been true, that the former subscribers had transferred their interests to him, such an act would have been unnecessary, because he would have stood on their footing; but it could not be true, because the transfer being to be executed by the president, after a tender and refusal of the share to the company, and no president having ever been elected, there could have been no such transfer to him as he alledged. I have been thus particular Sir, in order to shew you that Mr. Ballendine has no legal right to the conducting the canal which can stand in the way of the present Contract. He has an equity of redemption in the 46 ½ acres of land before mentioned, and so far stands on the footing of every other landholder through whose lands the canal must pass. He prayed earnestly that their rights might be sacrificed to him, on his paying them the value: can he then with modesty now say that his rights shall not be sacrificed to others, paying him the value of the injury done him? It is now four years since he begun this canal; he has conducted it about one twentieth part of the whole distance: and this too while his workmen were with him, and his means, if he had any, were fresh. A very simple calculation then will inform us, that, in his hands the completion of this work will require near a century, and then a question arises whether Mr. Ballendine will live so long. I think we may fairly conclude that he will never complete it. It is right that in cases of such general importance, the interests of a few individuals should give way to the general good, full compensation being made them; and as right that Mr. Ballendine’s should, as those of the others whose lands were to have been laid open to him. He has had a long enough trial to convince the whole world he never will complete it. Other gentlemen now offer to do it within a reasonable term. As the assembly then after an eight years trial and failure of the act of 1764. made another experiment in 1772. it seems reasonable, after other seven years patience, to try yet other means. It is possible the present Undertakers may not find it necessary to make use of Mr. Ballendine’s canal at all, but may take out the water elsewhere. But should they find that it can be taken off no where else, it is submitted to the assembly, whether his having dug a canal along grounds thro’ which the navigable canal must necessarily pass, shall privilege those grounds, more than the meadows and grounds of others are privileged, and for ever obstruct the opening that river, and whether there can be any sound objection to the having in his case, as well as in those of others, a just valuation made of the injury he will sustain by the use which shall be made of his canal, and after withholding the £2051.2.5 ½ due from him to the public, on that particular account, to pay him the balance if the injury shall be found to exceed that sum.

In stating to you the several obstacles which oppose themselves to the execution of the resolution of assembly, I have been necessarily led to mention circumstances which are to be found among your own journals and acts, and of which therefore you had knowledge before. They were necessary to continue the thread of the relation so as to render it intelligible, and are desired to be considered only as references to your own records for more authentic and precise information.

I have the honour to be with the greatest respect Sir Your most obedient & most humble servt.,