Bill for Establishing a Manufactory of Arms and Extending Navigation through the Falls of James River
[30 October 1779]
Whereas in consequence of certain resolutions of General assembly the Governor with the advice of the council of state on behalf of this commonwealth hath entered into articles of agreement with Messrs. Peter Penet Windel and company of the kingdom of France, which articles are in these words following to wit. Articles of agreement entered into and concluded on the twenty second day of July in the year of our lord one thousand seven hundred and seventy nine between the Governor of the commonwealth of Virginia with advice of the council of state on behalf of the said commonwealth on the one part, and Messrs. Peter Penet, Windel and company of the kingdom of France on the other part.
First. The said Peter Penet, Windel and company covenant and agree that they will establish at their own expence a Manufactory of arms, and Foundery of Cannon at such place on James river as they shall think suitable, that they will provide the same with able artists and workmen, that they will support and carry on the said Manufactory and Foundery for ever, and to such extent as that they shall at all times and so often as they shall be called on after the first nine years hereafter more particularly mentioned be able from the manufactory particularly to furnish ten thousand stand of arms complete and well made within one year after the same shall have been called for by the Governor and council for the time being.
Second. The said Peter Penet, Windel and company will begin to erect the buildings and other works necessary for the said Manufactory and Foundery as soon as the place shall have been fixed on and procured for them.
Third. They covenant and agree to make at the said Manufactory and Foundery and deliver to the Governour or order six thousand complete stand of arms each stand to consist of a musket, bayonet and scabbard, two hundred and fifty carbines, two hundred and fifty pair of horsemen’s pistols, and two hundred and fifty swords within two years after the said place shall have been fixed on and procured for them, and the like number every year after for seven succeeding years, making in the whole forty eight thousand stand of arms two thousand carbines, two thousand pair of pistols, and two thousand swords reserving to themselves nevertheless a power of delivering the whole quantity before mentioned within such shorter time as they shall think proper. They will also make at the said Foundery such and so many Ordnance as shall hereafter be agreed on. The patterns for the muskets, bayonets and carbines shall be either the French model of one thousand seven hundred and sixty three or such as are now used in the British army at the election of the Governour and council to be declared at any time when such declaration shall be called for by the company such call not to be sooner than six months after the date of these presents the pattern of the pistols shall be the French model of one thousand seven hundred and seventy two or such as are now in use in the British cavalry at the like election of the Governour and council, to be declared as before provided in the case of the muskets. The swords shall be such as are used in the French cavalry, and shall be mounted with brass, there shall be duplicates of these patterns provided by the Governour and council, one of each to be deposited with the company, the other to be kept by themselves.
Fourth. The said Ordnance and fire arms shall be proved in presence of some person to be appointed by the Governour and council with a double charge of powder and ball three times repeated, the first proof to be at the expence of the company, the second and third proofs at the expence of the state. The Governor shall not be obliged to take any arms which fail under either of these proofs. The person so to be appointed shall attend at the Manufactory and Foundery at stated times to see the arms proved, and give certificates to the company.
Fifth. The Governour shall receive the said arms at the Manufactory and Foundery.
Sixth. The Governour and council shall have right once in every two years to direct any alteration in the form or materials of the said arms which they shall think proper, they taking such arms as shall be on hand, finished, at the time of the alteration directed, and paying such additional price for those to be afterwards made as shall be agreed on if the alteration should enhance the cost of the workmanship or materials. Such agreement to be made amicably between the parties before the alteration takes place.
Seventh. The Governour and council covenant that they will use their best endeavors to procure for the said company such situation within the description of the first article as the said company shall fix on, together with a right to the water and other conveniencies necessary for the said Manufactory and Foundery; also three thousand acres of land in one or more parcels in the neighborhood of the said situation. If they cannot do it without committing violations on private property which the laws will not authorize, or without giving such exorbitant prices as the importance of this contract will not justify they will report the same to the General assembly at their next meeting; and if the assembly shall not devise means of having it done, the whole contract shall become void.
Eighth. The said Peter Penet, Windel and company covenant and agree that the articles so to be procured for them by the Governor and council as stated in the preceding covenant shall be estimated by honest and judicious persons, to be chosen by joint consent of both parties according to their real worth in gold and silver at the time they shall be purchased, but if the public shall have paid nothing for the water nothing shall be required to be paid them for it, and the said company will repay the sum at which the said articles shall be estimated either in arms to be made at the said Manufactory or Foundery at the prices herein after agreed on for other arms, or in arms or other merchandize to be specified by the Governour, and imported from France by the Governour and council or, if they chuse it, by the said company at the risque and expence of the commonwealth. The right of determining in which of the said ways paiment shall be made or how much in the one and how much in the other shall be in the Governour and council: and so much as shall be called for by importation from France shall be ordered by the company so soon as the situation, land and other conveniencies before mentioned shall be procured for the company.
Ninth. The Governour and council agree that if the said Peter Penet, Windel and company shall fail in the execution of the preceding articles through too great difficulties or other unforeseen causes they shall not be liable to the commonwealth for damages for breach of contract. But in case of failure from any cause whatever the land water and other conveniencies procured for them with all improvements thereon shall become the absolute property of the commonwealth; the said commonwealth repaying to the said company the price which it shall have received under the eighth article for the said lands.
Tenth. The Governour and council will recommend to the General assembly the exempting for twenty one years the managers, artists and domestics imported by the company and employed in and about the Manufactory and Foundery from all public labors and from military service either in the militia or elsewhere. And in order to ascertain the persons entitled to this exemption, their several contracts with the company shall be exhibited to the clerk of the county in which the Manufactory shall be, to be by him copied and safely kept for the inspection of officers civil and military, courts of justice, and others concerned: if the assembly shall refuse such exemption the company shall be at liberty to declare the whole contract void.
Eleventh. The Governor and council will inhibit all officers from enlisting into military service before the determination of their engagements with the company, the artists and domestics which the company shall import and employ in and about the Manufactory and Foundery and which shall be ascertained as provided in the preceding article; and if enlisted, will have them discharged: and will recommend to the General assembly to make provision by law for preventing the citizens of this commonwealth from taking them into their service or seducing them away during the same term.
Twelfth. The Governour and council will recommend to the General assembly to make provision by law for enforcing the persons described and ascertained in the two preceding articles to a specific performance of their contracts for service, and to authorize the company to pass by—laws for the government of the said persons, inflicting penalties of fine and imprisonment where necessary: provided that such by—laws shall not be in force until approved by the General assembly.
Thirteenth. The Governour will receive the arms contracted for in the third article in time and manner as there specified; and the commonwealth within six months after receiving them shall pay to the company for every musket, bayonet and scabbard thirty livres ten sous Tournois money of France, for every Carbine mounted with brass, thirty eight livres ten sous of like money, for every pair of pistols for cavalry, forty livres ten sous of like money for every horseman’s sword mounted with brass with it’s scabbard twelve livres of like money.
Fourteenth. The Governour and council will undertake to purchase for the company one mine of iron, one of copper, and one of coal all of good quality if they can do it without committing violations on private property which the laws will not authorize, or if such mines can be found in unappropriated lands the company shall be entitled to a grant of one of each kind gratis: so as that they shall be entitled to but one of each kind by grant and purchase. They shall have liberty to search in any unappropriated lands for such mines, and the Governor and council will endeavor to get leave for them to search also in appropriated lands for the like mines. The Governour and council will undertake under the like reservation as to the rights of private property to purchase for, or grant to, the company five thousand acres of land adjacent to each of the said mines, and the streams of water necessary for working them. If any of the said mines shall become exhausted, the like shall be purchased or granted in the same manner and under the same reservation in lieu thereof. The said company covenants that the purchase money or cost of such mines, lands and streams of water shall be estimated by honest and judicious men to be chosen by joint consent of both parties according to it’s real worth in gold and silver at the time the paiment of such purchase money or price shall become due from the state, and that it shall be repaid by the company as is before covenanted by them in the eighth article as to paiment for the matters stated in the seventh article. The state shall at it’s own expence open a road from each mine to the river if that be practicable, or, if not, then to the nearest high road.
Fifteenth. The company shall have a right to conduct a canal from W[estham] to Richmond, and erect it’s banks on and through any lands whether [of public] or private property with a saving only as to the rights of John Ballendine so far as they shall be maintaineable in law and equity. But as to the rights of the said Ballendine the Governour and council are of opinion that there being no reasonable prospect that he will ever complete the canal, his rights ought not to obstruct the completing it for the public convenience by other hands any more than the rights of others, and will therefore refer to the General assembly the subjecting his property in like manner with that of other individuals and also that the lands of individuals which shall be occupied by the canal and it’s banks, and damages sustained by them in consequence thereof shall be paid for by the commonwealth, and such paiment not redemanded from the company. The breadth of the said canal and horseway on each side, and the depth of water for navigation, as also the toll to be allowed to the company and mode of levying it shall be as the General assembly shall prescribe. The company shall declare before the first day of January one thousand seven hundred and eighty one or so soon after as the General assembly shall have prescribed the circumstances just before mentioned whether they will undertake the canal or not, and at the same time shall declare within what term they will complete it. If that term shall exceed ten years the General assembly shall be at liberty to declare the several articles of this contract relative to the said canal, to be void. If they undertake and fail to complete it within the term agreed; their rights under the same articles shall vest in the commonwealth. It shall be lawful for the General assembly at any time after the year one thousand eight hundred and forty to take into the hands of the commonwealth the property of the canal, it’s water locks, banks and other appendages, and the necessary privileges in the adjacent ground for repairing them, leaving to the undertakers the use of such portions of the water and in such places for working of their machines as they shall have applied to that use during the first twenty five years after their undertaking it, and paying to them the double of what the opening the said canal, building the locks, banks, and other the said appendages thereof shall have cost them; the amount of which cost shall be kept by the company separate and apart from that of their other works and shall annually with their vouchers be laid before persons jointly to be chosen by the Governour and council and the company, to be by them examined and certified so far as they find them just, and a copy of such certificate to be given each party and to be binding between them. Where such cost shall have been defrayed in paper money or commodities the true worth thereof in gold and silver at the time of the expenditure and at the place where expended shall be estimated by the same persons, and the repaiment thereof, as also of all expenditures of gold and silver shall be made in double the quantity of gold and silver as before agreed. In consideration of this right of resumption reserved to the commonwealth, the Governour and council will recommend to the General assembly to take the same into their consideration when they shall proceed to establish the toll and to allow such toll as will with tolerable certainty reimburse the company within the term of fifty years, and also to give a right of passage toll free to all the productions of the Manufactory and Foundery and the necessaries for them ’till the year one thousand eight hundred and ninety.
Sixteenth. In case of the impracticability or too great difficulty of opening the canal aforesaid the state will at it’s own expence prepare a firm and commodious road from the Manufactory and Foundery into the main road leading to Richmond, for transporting the Cannon and other productions of the Manufactory and foundery.
Seventeenth. The Governour and council will extend to the company all protection assistance and privileges which to them shall appear reasonable, and shall be within their power, and will recommend the same to be done by the General assembly.
Eighteenth. The Governour and council covenant and agree that the preceding articles shall be binding on them and their successors on behalf of the commonwealth, and the said Peter Penet, Windel and company covenant and agree that the said preceding articles shall be binding on them jointly and severally, their joint and several heirs, executors and administrators.
In witness whereof Thomas Jefferson esq. Governour of the commonwealth of Virginia, on the part of the commonwealth and with advice of the council of state and Peter Penet on the part of the said Peter Penet, Windel and company have hereto interchangeably set their hands and seals on the day and year first above written.
Now therefore for confirming the said Articles so far as the same were absolutely and completely ascertained and covenanted by the Governour, and for completing so much of them as were by him covenanted to be recommended or referred to the discretion of the General assembly, so far as is thought consistent with the public good;
Be it enacted by the General assembly that the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, thirteenth, fourteenth, sixteenth, seventeenth and eighteenth of the said articles shall be and the same are hereby absolutely ratified and confirmed on the part of this commonwealth and declared to be obligatory thereon.1
And whereas the Commonwealth is entitled to a trust in certain lands in the county of Buckingham for securing the paiment of certain large sums of money lent to a certain John Ballendine and John Reevely in pig iron at the rate of seven pounds ten shillings currency per ton; and are also entitled to a trust in three acres and an half of land in the county of Henrico adjacent to the falls of James river whereon is a foundery and other works, in absolute right, and have a mortgage on forty six acres and an half of lands adjoining to the said three and an half acres, from the said John Ballendine for securing to the commonwealth the paiment of certain other large sums of money lent to the said Ballendine; and it may the more effectually enable the Governour to carry into execution the seventh and fourteenth articles before confirmed if he shall be vested with power to transfer the public rights therein to the said Penet, Windel & company, be it therefore enacted that it shall be lawful for the Governour with advice of the council of state to agree with the said company on the mode of having the public right in the said lands estimated to convey the same to the said company in part towards performance of the said seventh and fourteenth articles, and to have paiment made of the said estimated value in the manner therein stipulated: and that the public may be availed of the opportunity of disposing of their interests in the said mortgaged lands in such manner as may save the advances made to the said Ballendine or Ballendine & Reevely in the said lands to await the ordinary delays of proceedings in equity and, reasonable time being allowed them for putting in their answers and other pleadings, and collecting their evidence, they will not have cause to complain merely for the expedition of justice; be it further enacted, that after a bill or bills shall have been filed against them or either of them for any the purposes beforementioned, and notice thereof actually served by a proper officer or left at the most usual place of their respective residences they shall be allowed one month and no more for filing their answer, plea, or demurrer respectively; within which time if there be a failure to answer, plead or demur, or if the answer, plea, or demurrer filed be adjudged insufficient or overruled, the bill shall be taken for confessed and a decree accordingly; and in like manner after a replication or any other pleading filed on the part of the Commonwealth and actual notice thereof served or left as aforesaid one month and no more shall be allowed to file the proper pleading in answer thereto, subject to the like condition of a decree as if the bill were confessed on failure to file the same within such time, or on it’s being overruled or adjudged insufficient. And after issue in law or fact shall have been made up one month or on failure to answer or file any pleading in sufficient manner as before directed, a final decree shall be pronounced at the first court which shall be held after the expiration of the said month or failure as aforesaid, or at the court which shall be in session at the time of such expiration or failure: and in case of any appeal, such appeal shall be heard and finally determined by the court to which it is made at their first sitting after the said appeal prayed. And if any day after the decree pronounced shall be given to the said Ballendine or Ballendine and Reeveley for the redemption of any of the said lands, such redemption shall be allowed only on condition of specific performance of the agreement on which the monies were advanced, and the day given shall not exceed one month after that on which such decree shall have been actually pronounced. But as a part of the monies advanced to the said Ballendine and Reevely to be repaid in iron, were paid by the Treasurer after the price of iron had risen in some degree, it shall be lawful for any court before whom the said proceedings shall be depending to take into consideration the rise in the price of iron at the several times at which the said monies were paid out of the treasury, and to allow the said Ballendine and Reeveley to repay the said monies in iron at such advanced prices.
The managers, artists and domestics imported by the said company from any place other than any of the United states of America and employed in and about the said Manufactory and Foundery shall be exempted until the first day of January which shall be in the year one thousand eight hundred and one from all public labours and from military service as well in the militia as elsewhere: and in order to ascertain the persons entitled to this exemption, the contracts of such persons with the said company shall be exhibited to the clerk of the county in which the Manufactory shall be, to be by him registered in a separate book to be provided for that purpose and safely kept for the inspection of officers civil and military, courts of justice and others concerned. And if before the same day and during their engagements with the said company any of the said artists or domestics shall be enlisted into military service, or shall enter into the service or employment of any individual or of any body politic or corporate, it shall be lawful for the said company or any their agents or servants to retake such artist or domestic, or to make complaint to any justice of the peace in the county where such artist or domestic shall be, who thereon shall issue his warrant to the sheriff or any constable of his county commanding him to retake and deliver such artist or domestic to the person complaining: and moreover the person who enlisted him into military service, or took him into his service or employment, if he knew or had reason to beleive him to be an artist or domestic under engagements as aforesaid to the said company shall be liable to the said company for all damages they may sustain by the enlistment or employment of the said artist or domestic, and shall moreover be amerced.
And the more effectually to enable the said company to carry into execution the several covenants entered into on their part, all managers, artists, and domestics imported by them from any place other than any one of the United states of America and employed in and about the Manufactory or Foundery and ascertained and registered as before directed shall be compelled to a specific performance of their contracts for service until they shall have actually served seven years if their contract so long bound them to serve: and the said company shall moreover have full power and authority to pass by and for the government of the said managers, artists and domestics beforementioned, with clauses for inflicting penalties by way of fine and imprisonment; provided that such by-laws shall not be in force until approved by the General assembly and shall be subject at any time after to be repealed by them.
And whereas by an act of General assembly passed in the year one thousand seven hundred and sixty four and intituled ‘an act for clearing the great falls of James river, the river Chickahominy, and the North [branch] of James river’ certain trustees were appointed with powers to receive subscriptions of money for extending the navigation of James river from Westham downwards through the great falls and recovering the said monies, and to perform such other acts as were necessary for carrying the said purpose into execution, under which acts divers persons subscribed certain sums of money, but the said trustees surceasing to proceed on the said work afterwards, to wit, in the year one thousand seven hundred and seventy two, one other act of General assembly was passed intituled ‘an act for opening the falls of James river and for other purposes,’ enacting that as soon as the persons who had theretofore subscribed together with such as should thereafter subscribe, or a majority of them, should think a sufficient sum for effecting the work might be raised, any ten who had subscribed one hundred pounds each should appoint a general meeting of the subscribers in the manner therein specially directed, and that the subscribers so met should be impowered to elect a president and eleven trustees and directors who should have authority to agree with an undertaker or undertakers for cutting the said canal, erecting locks and other necessary works, with a proviso that such undertaker or undertakers should first give sufficient security to perform his or their agreement allowing certain tolls or duties for the passage of vessels along the said canal to be demanded and received, vesting the said canal with it’s appurtenances in the subscribers, and their heirs and assigns, authorizing them severally to sell and transfer their right or interest in the said canal, tolls or duties by deed of conveyance to be executed by the said President, such subscriber, when desirous of selling, having first offered the same to the trustees, who it was thereby declared should have the preference in all such sales if they would give the same consideration for which any proprietor should really and bonafide sell; and declaring the said canal when compleated should be open and common as a navigable water to all leige persons of the state paying the tolls therein prescribed, together with many other particulars in the said act provided; under which act also other large sums of money were subscribed by divers persons: but a majority of the said subscribers having failed ever to meet, and to give opinion that a sufficient sum for effecting the work might be raised, and in consequence thereof no ten qualified as the said act directed having appointed a general meeting of the subscribers as therein directed, and no subscribers met under such appointment, having elected a president and trustees and directors; no persons have ever been vested with authority to agree with an undertaker or undertakers to execute the said work or to take from such Undertaker or Undertakers sufficient security for the performance of his or their agreement: and the said subscribers having never sold or transferred their right or interest in the said canal, tolls or duties, and having for a long time altogether surceased proceeding in the said undertaking, it becomes necessary for the public good that the offers of emolument by the said work made to them and2 not complied with, should now be tendered to others, in like manner as those made to the subscribers under the first act abovementioned, and not complied with were transferred to those under the second; be it therefore enacted that the two acts of General assembly beforementioned shall be hereby repealed, and that all right, title, interest and authority derived to any person whatever under the said acts or either of them shall henceforth cease and become void as if no such act or acts had ever been made.
And whereas the said Peter Penet, Windel and company have in the fifteenth of the before recited articles proposed to undertake to open or construct a navigable canal from Westham to Richmond on certain conditions therein pointed out and others to be prescribed by the General assembly, if such additional conditions shall be approved of by themselves; be it therefore enacted that the said Peter Penet, Windel and company shall have power and authority at any and all times before the first day of January which shall be in the year one thousand seven hundred and eighty one with proper engineers, surveyors and assistants to enter into any lands adjacent to James river between Westham or Beverley town and the town of Richmond, and to make such examination and surveys as may be necessary previous to their determining on the said undertaking, and if they shall determine to undertake the same, and shall make declaration thereof before the same day to the Governour by writing subscribed and sealed, then it shall be lawful for them to open or construct a canal for continuing the navigation to the said river from the said town of Beverley to the tide waters at Richmond, and to erect it’s banks and locks on and through any lands whether of public or private property: that the breadth of the said canal shall be fifty feet, and the depth of water through the whole breadth and length thereof shall be inches: that there shall be a horseway on each side twenty feet in breadth and of a convenient height above the water for the towage of boats and other vessels: that the property in the bed of the said canal when completed it’s water horseways and banks to the extent of one hundred feet on each side measuring from the middle of the said canal, shall be vested in the said Peter Penet, Windel and company or such of them as shall then be citizens of this commonwealth and their heirs as tenants in common; subject nevertheless to the laws of escheat on their becoming aliens at any time after; and saving to all persons, bodies politic and corporate all mills and other engines already completed with their ducts of water and other necessary appendages as they now actually exist: that it shall be lawful for the said Peter Penet, Windel and company to erect a dam or dams in any part of the river for the purpose of diverting the water thereof into the said canal and to abut the same against and into the shores or banks in any part: and that they may demand and receive at such fixed place on the said canal or it’s banks as they shall think proper for every hogshead one fourth of a dollar, every barrel one twelfth of a dollar, every bushel of grain or salt one seventy secondth of a dollar, every chaldron of coal one fourth of a dollar, every hundred pipe staves one sixth of a dollar, every hundred hogshead staves one eighth of a dollar, every hundred barrel staves one twelfth of a dollar, every hundred cubic feet of plank or timber one sixth of a dollar, every cubic yard of stone one twenty fourth of a dollar, every cubic yard of oar one twelfth of a dollar, and for every hundred weight of other merchandize whatsoever one twenty fourth of a dollar, and so in proportion for a greater or less quantity which shall enter the said canal and pass the place where the toll shall be demanded, in any boat or other vessel, and for every such boat or other vessel not laded (other than those which having passed upwards or downwards shall be on their return) five sixths of a dollar: which paiments shall be made in gold or silver or the worth thereof in paper bills of credit at such rate of exchange as shall have been last fixed for the purpose by the General assembly according to the true and actual difference at market between gold or silver and paper bills of credit and in case of neglect or refusal of paiment of such toll on demand, it shall be lawful for the said company to make distress on the said vessel which passed or the goods laden on board thereof, or the horses towing the same, and such distress to detain as a pledge till paiment in like manner as is allowed by the law in cases of distress for toll in a fair or market.
The said canal from the time of the first toll paid shall be deemed a navigable water and with the horseways on each side thereof shall be common to all the citizens of this commonwealth for the purpose of transporting along the said water their goods and merchandize paying the tolls herein before stated.
When the said company shall have determined on the course of the said canal and shall be ready to enter therewith the lands of any particular tenant, they shall make application after ten days previous notice to the proprietor if he be to be found in the county, and if not, then to his agent therein if any he hath that such application would be made to the court of the county of Henrico or to the General court who shall thereupon order a writ to be issued in the nature of a writ of Ad quod damnum directed to their sheriff commanding him to summon and impanel a jury of twelve fit persons to meet on the said tenement on a certain day to be named by the court and inserted in the writ, of which notice shall be given by the sheriff to the said proprietor or his agent as before directed, if neither of them were present in court at the time of the order made, which jurors taking nothing (on pain of being discharged from the inquest and immediately imprisoned by the sheriff) either of meat or drink from any person whatever, from the time they shall come to the said tenement until their inquest sealed, and being duly charged by the sheriff shall describe by certain metes and bounds the lands so to be occupied by the said canal, it’s horseways and banks one hundred feet each way from the middle of the said canal except where they shall be restrained by mills or other engines or their appendages within the saving herein before provided: and shall estimate the true value thereof in so many different parts as there shall be different persons entitled thereto and according to their several estates therein, and shall also say to what damage it will be of the said several persons over and above the estimated value of their estate in the said lands, for the said Canal to be opened or constructed as so described: and if the said inquest cannot be completed in one day the sheriff may adjourn the jury from day to day until the same be compleated: which inquest sealed with the seals of the said jurors shall be returned by the sheriff to the court from which the order issued there to be recorded and a copy thereof shall be delivered by the clerk of the said court to each person found to have any estate in the said lands, who producing the same to the Auditors, and obtaining their warrant shall be entitled to receive from the Treasurer the value of his estate in the said lands and the damages estimated and assessed to him by the jury, in full satisfaction and bar of his right and title to the lands and to all damages which he may afterwards sustain by the opening constructing or establishing the said canal: which proceeding shall be repeated and observed with every several tenement whensoever the said company shall be ready to enter the same with the canal.
And whereas a certain John Ballendine is intitled to an equity of redemption in forty six and an half acres of land on the said river formerly the property of Patrick Coutts deceased and adjoining to the lands of the commonwealth whereon the Foundery was erected, the legal estate in which said forty six and an half acres of land is in Richard Adams, Nathaniel Wilkinson and Turner Southall in trust for the commonwealth as a pledge for the performance of certain covenants wherein the said John Ballendine is bound to the commonwealth and for the repaiment of certain monies advanced to him on the public behalf, and the said John Ballendine, giving out in speeches that he would open and construct a navigable Canal from Westham to Richmond, did, without authority from the legislature, without obtaining legal conveyances of the rights and authorities of the subscribers according to the act of assembly before mentioned passed in the year one thousand seven hundred and seventy two, and without order from any court of justice, begin a canal and open the same through the greater part of the tenement aforesaid, and erect a dam across an arm of the said river for the purpose of diverting the water thereof into the said canal, but hath now for a long time surceased doing any thing towards continuing the said canal and is visibly and notoriously unable to compleat the same had he authority so to do, yet nevertheless it will be just if the public convenience should require that the said canal or dam should be used for continuing the navigation proposed from Beverley town to the tide waters at Richmond, that the said John Ballendine should be allowed so much as the construction of the said dam and canal would cost under good management and oeconomy.
Be it therefore enacted that if the said company shall propose for the purpose of compleating the said navigation to make use of the dam or canal so begun by the said John Ballendine, the jury so to be summoned and charged as before directed for describing by metes and bounds the lands to be vested in the said company for estimating the value thereof, and saying to what other damage of the said John Ballendine it will be, shall in assessing such damage take into their consideration and allow as part thereof what the construction of the said dam and canal in the state in which they shall then be would cost under good management and oeconomy for which estimated value and damages the said John Ballendine shall have credit in the public account against him for monies lent and secured by mortgage of the said forty six and an half acres of land: or instead of a jury so to be summoned it shall be lawful for the Governour with the advice of the council of state in the particular case of the said John Ballendine if the said John Ballendine shall so elect and desire, to appoint five persons of judgment and integrity sworn to perform the duties which the said jury would otherwise have performed, having been first charged before a justice of the peace to do the same impartially and to the best of their skill and judgment, whose report shall be returned by them into the General court and have the force of a verdict rendered by a jury: and if any of the persons so appointed die, decline or delay to act, the Governour may in like manner appoint another in his stead as often as the case shall happen, provided that the said John Ballendine shall make election to have persons so nominated by the Governour instead of a jury and shall make application accordingly to the Governour within one week after the said company or some one on their part and by authority from them shall have required him to make such election, which requisition it shall be incumbent on them to make of the said John Ballendine one month before their application to any court for the empanelling of a jury to perform the said duties.
The said company at the same time and in the same instrument wherein they shall declare to the Governour their determination to undertake the said canal shall moreover declare within what term they will complete the same: and if the said term shall exceed ten years the General assembly shall be at perfect liberty at their first session next ensuing such declaration to disagree to the several articles of agreement before recited relating to the said canal, and to revoke all the powers and interests hereby given to the said Peter Penet, Windel and company in and about the said canal. If the said company undertake and fail to complete the said canal within the term declared, their rights under the same articles shall become forfeited to and vested in the commonwealth it shall be lawful for the General assembly at any time after the year one thousand eight hundred and forty to take into the hands of the commonwealth the property of the said canal, its water, locks, banks and other appendages, and the necessary privileges in the adjacent ground for repairing them, leaving to the said company of Undertakers the use of such portions of the water and in such places for working their machines as they shall have applied to that use during the first twenty five years after their undertaking it, and paying to them the double of what the opening the said canal, building the locks, banks, and other the said appendages thereof shall have cost them, the amount of which cost shall be kept by the company separate and apart from that of their other works and shall annually with their vouchers be laid before persons jointly to be chosen by the Governour with the advice of council and the company, to be by them examined and certified so far as they find them just, and a copy of such certificate to be given to each party and to be binding. Where such cost shall have been defrayed in paper money or commodities, the true worth thereof in gold or silver at the time of the expenditure and at the place where expended shall be estimated by the same persons, and the repaiment thereof, as also of all expenditures of gold and silver, shall be made in double the quantity of gold and silver as before mentioned. In case of such resumption of the said canal into the hands of the commonwealth the said company shall have a right of passage along the same toll free for all the productions of the manufactory of arms, and foundery before mentioned and the necessaries for them until the beginning of the year one thousand eight hundred and ninety.
MS (DLC); a fair copy in the hand of Anderson Bryan and endorsed by the clerk: “A Bill for establishing a manufactory of Arms, and foundery: and for extending navigation through the falls of James river.” The MS contains one long and significant paragraph inserted by TJ in a blank left by the clerk (see note 1, below) and also a number of small corrections and insertions by TJ (not individually noted here), indicating that he went over the fair copy very carefully. The composition draft of the last portion of the bill (see note 2, below), entirely in TJ’s hand and much interlined and corrected, was written on three blank pages of Gen. Phillips’ letter to TJ, 12 Aug. 1779 (letter owned by Lloyd W. Smith, Madison, N.J., 1946).
For the background of this bill see Contract between the State of Virginia and Penet, Windel & Co., 22 July 1779, and especially TJ to Harrison, 30 Oct. 1779. It is not known when TJ drew it up in such characteristic detail, though he must have done so after 12 Aug. and presumably about the time he submitted to Speaker Harrison all the papers pertaining to the proposed transfer of Ballendine’s rights to Penet and his backers. On 13 Dec. 1779 Gen. Nelson reported for the Committee of Propositions and Grievances, and it was agreed by the House, that the proposed contract be referred to the consideration of the next session but that buildings be erected in Richmond for the accommodation of the workers expected from France (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1779, 1827 edn., p. 87–8). However, no workers ever sailed from France, for (as Penet reported to TJ, 20 May 1780) the French government had prohibited the emigration of munitions workers. This was the end of TJ’s hopeful arrangements with Penet, but meanwhile John Reevely (or Reveley), in spite of entanglements with Ballendine, was actually producing munitions and ordnance at the public foundry at Westham, which he succeeded in wagoning out; see Kathleen Bruce, Virginia Iron Manufacture in the Slave Era, N.Y. and London, 1930, p. 52–4. In Jan. 1781 the foundry was destroyed by Lt. Col. John Graves Simcoe, acting under Gen. Benedict Arnold’s orders, together with such stores as the workers had been unable to ferry across the river; TJ himself had supervised the hurried and incomplete evacuation (same, p. 60–2; TJ’s Diary of Arnold’s Invasion, printed under date of 31 Dec. 1780, below; also TJ’s correspondence of Jan. 1781). The Acts of 1765 (not 1764 as mistakenly cited by TJ) and 1772 for extending the navigation of James river will be found in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends viii, 148–50, and 564–70, respectively. With the first of these TJ had himself been intimately connected (see his Project for Making the Rivanna River Navigable, 1771), but the canal around the Great Falls was not constructed until after the formation of the James River Company in 1785 (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xi, 450–62; W. F. Dunaway, History of the James River and Kanawha Company, N.Y., 1922, ch. ii).
1. The following paragraph is in TJ’s hand, inserted in a long blank left by the copyist.
2. The surviving fragment of TJ’s draft of the bill begins at this point and includes all that follows.