Note. for many of the facts & documents here stated reference must be had to State papers. Dec. 17.1800. Jan. 30. 1801. Apr. 8. 1802.

	Questions arising from time to time What is the plan of the city of Washington? have not unauthoritative alterations been made in it? how do these alterations affect the rights of individuals? it becomes necessary to review the on which they depend, to deduce principles from these, & to apply them to individual cases.
Act of Congr. 1790. c. 28.	prescribes to Commissioners, under the direction of the Pres. of the US. to survey, & by metes & bounds define & limit the territory &c to purchase or accept land, as the Pr. US. shall deem proper, for the use of the US. and to provide suitable buildings for the accomodation of Congress, & of the President, & for the public offices of the govmt of the US. according to such plans as the Pr. shall approve. the Pr. is authorised to accept grants of money for defraying the expence of such purchases & buildings.
1791 Apr.	The proprietors of the lands on which the city is laid, convey to trustees as follows. the lands to be laid out, with such streets, squares, parcels & lots as the Pr. US. for the time being shall approve. the trustees to convey to the Commrs. for the time being, for the use of the US. all the streets, & such squares, parcels & lots, as the Pr. shall deem proper for the use of the US. the residue of the lots to be divided one half to the proprietor, the other half to be sold on such terms & conditions &c. as the Pr. US. shall direct the trustees to convey to the purchasers, & the proceeds of the sales to be applied, 1st. to pay the for the lots, squares & parcels appropriated to the use of the US. at £25. per acre, the balance to the President as a grant of money, & to be applied for the purposes & according to the act of Congr. the conveyor to possess & occupy, until the same shall be occupied under the said appropriations for the use of the US. or by purchasers: & to cut & take the trees, timber & wood, except such of the trees & wood growing as the Pr. or Commrs. may judge proper & give notice shall be left for ornament; for which a just value to be paid. the trustees, at the request of the Pr. US. for the time being, to convey all the lands hereby conveyed to such person as he shall appoint subject to the trusts.
Oct. 17.	The first sale of lots took place. squares 77. 78. 79. 105. 106. 107. 127. 128. were divided, &1 were sold. it is to be observed that none of these touch the Pr’s square, either as then projected, or afterwards established.
1791. Oct. 25.	President Washington informs Congress of the state in which the business then was, to wit. that the district was located, & a city laid out on a plan which he should2 place before them. and Dec. 13. he communicated to them L’Enfant’s projet, & after time given for inspection, he withdrew it.
Dec: 19.	The legislature of Maryland pass an act. by §.5. all the squares, lots, pieces, & parcels of land within the city, which have been or shall be appropriated for the use of US. & also the streets, shall remain & be for the use of the US. and all the lots sold shall be to the purchasers according to the conditions of purchase. the Commrs. for the time being, shall from time to time, until Congress shall exercise the jurisdiction, have power to license the building of wharves adjoining the city, in the manner, & of the extent they may judge3 convenient, and agreeing with general order; but no wharf to be built before the land of another, nor without licence. they may direct as to ballast, materials for building, earth from cellars &c the thickness of walls, under penalties not exceeding £10. grant licences for retailing spirits.
1792. Mar. 14.	Pr. Washington having employed Ellicot to prepare the plan of the city for engraving,4 the groundwork of which was L’Enfant’s projet with several alterations approved by him, and particularly with an omission of the specific appropriations of the public squares, proposed in the projet, which, except those of the Capitol & President’s square were struck out and left for future determination as the uses should occur. Ellicot now compleated it: and it was put into the hands of engravers at Philadelphia & Boston to be engraved.
Apr. 20.	The commissioners having proposed to the President some further alterations, the Secretary of state informs the Commrs. that the Pr. declines making any alterations in the city, in consideration of the expediency of fixing the public opinion on the thing as stable & unalterable, the loss of work done if altered, the changing all the avenues which point to the Capitol, removing the two houses to a still greater distance, change in the engraving &c. [it may be conjectured that one of their proposed alterations was the removal of the Capitol Eastwardly to the highest part of the ground to save digging down that.]
Oct. 5	A sale of lots takes place, at which the Boston engraved plan was exhibited. in this the lines next to the water are omitted.
	At this sale a division took place between the Commrs. & Davidson, squares 167. & 186. are assigned to , & 200. 221. to the US. becomes the purchaser of 221. and 200 is sold to others,6 and he recieves payment at the rate of £25. per acre for every foot of the residue of the Pr’s square, & consequently for the very ground he since reclaims. on this occasion the Commrs. & enter into a written agreement that if any squares or buildings or other appropriations, except as a public square, are hereafter made on ’s part of the Pr’s square, bounded on the W. by 17th. street, N. by H. street, E. by 15th. S by Dav. Burnes’s line (except the two squares 167. & 221. already established & laid off),7 the sd Saml. should be entitled to his dividend thereof.
1795. July 20.	The Commrs. published regulations respecting wharves (expressing it to be under the authority given them by the act of Maryland.) they permit the of water lots to wharf as far out as they think proper, not injuring or interrupting the channel, leaving space where the plan of the streets requires it, and 60. f. at every 300. f. for a street where the plan indicates none.
1795. Oct. 5.	they permit mr Barry to wharf across the Georgia avenue.
	at various times they sell lots on the bank with a water privilege, viz. Nos. 1. 2. 3. 4. 5. 6. 7. 17. 18. square no. 8. sold to mr Templeman.
1797. Mar. 2.	Genl. Washington executes an instrument of directions to the Trustees to convey to the Commrs. all the streets as delineated in a plan said to be annexed, and 17. spaces of ground, as therein specially designated, for public reservations. by accident the plan was not annexed, but this annexation was supplied by President Adams July 23. 1798.
	Other appropriations8 of the reserved squares have been inferred from President Washington’s letters of Oct. 21. & Dec. 1. 1796. to wit of the 4th. reservation for an University, and of the 13th. for a Marine hospital. but the uncertain language of those letters is decided negatively by his subsequent omission of these appropriations in the Plan & Declaration of 1797.9 The 7th. reservn & the angular space between 78. and 101. have been regularly appropriated for a market.
1799. Apr.	President Adams designated10 the 14th. reservation to a Navy yard, & it has been assumed for that purpose: but the appropriation has not yet been formally made.
1801. Feb. 27.	Congress assume the jurisdiction of the territory.
1802. May 3.	Congress establish a corporation, giving them powers which in various instances abridge or supersede those of the Commissioners.

From these the following legal deductions may be drawn.

The power of the President to establish the plan of the city is derived solely from that part of the deeds of the which requires the trustees to convey to the Commissioners such streets and squares as the Presidt. should deem proper, for the use of the US. these having left him free as to the time & form of executing this power, we are to seek for those acts, words, or instruments proceeding from him which did amount in law to a full execution of his power, or a compleat declaration of all the streets and squares reserved, premising that it was not requisite that he should execute his power all at once, but by successive acts as he should find best.

1. The sales and divisions of squares & lots made by his authority, were an execution of his power as to so much of the plan as limited them, & their limits would thenceforward be established & unalterable. but these did not determine his power as to other parts not conveyed or divided.

2. His message to Congress of 1791. and communication of a first projet of the city by Lenfant, was merely a matter of information of the progress of the business, and not a determination of it. his letter of Feb. 20. 1797. to the Commrs. explicitly declares this, his subsequent alterations shew it, and the solemnity of his instrument of directions to the trustees for a more extensive execution of his powers when he thought the business ripe for it, are a conclusive proof of his intentions.

3. This direction of 1797. Mar. 2. to the trustees to convey streets & squares according to the plan annexed, was plainly intended as a solemn execution of his powers, and conclusive on him & his successors, as far as it went: and the plan therein referred to, the annexation of which was supplied by President Adams, taken in conjunction with the explanatory instrument of directions, may be considered to be the established plan of the city so far as it went.11 it appears indeed to have been made on a survey not accurate in every part, so that certain designations in it could not be applied to the ground, & were liable either to correction from that, or to nullity. such portions of the power as were not executed by this instrument, remained of course in the President. such were the future appropriations of the areas reserved except the Capitol & President’s squares: and the destination of many angular points formed between the intersections of streets, and the building squares delineated in the plan. these being left vacant in the plan, & not disposed of in the act of Mar. 2. 97. were left to be acted on thereafter. some of them have since been reserved & paid for, others divided as building squares; others still remain to be divided or reserved & paid for.

This plan of Pr. Washington’s is controuled by another circumstance. by the common law of England, presumed to be unaltered in Maryland in this particular, the property, tam aquae quam solé, of every river, susceptible of any navigation probably, but certainly of every one having flux & reflux, is in the king, who cannot grant it to a subject because it is a highway12 except for purposes which will increase the convenience of navigation. the ordinary low water mark is the limit of what is grantable by the crown to an individual. accordingly the grants from the crown, on such rivers, are ordinarily limited by the river: and so probably were the grants to the on the Potomak & Eastern branch. in the only deed I can recur to, that of Abraham Young, I observe he bounds his conveyance by & with the waters of the Eastern branch & Potomak river; and if the other have not done the same, the law has done it for them. the bed of the river vested, on the revolution in the states of Maryland & Virginia, & by their cessions was transferred to the US. but no act of the US. authorised the Pr. to lay out or establish the plan of a city. he recieved that authority only from the , & consequently it could extend no farther than their right extended, to the water edge. whatever parts of the plan therefore went beyond the water edge, were null for want of authority to lay them there.

Let us now proceed to examine the alterations which have been made and the effect they have on the rights of individuals.

1. The alteration pretended by mr , is no alteration at all. the building squares he claims were never established as such. they appeared indeed in the first project of Lenfant, but never were authorised by any act of the President’s. this is proved by mr ’s own agreement with the Commrs. in which the provision, that ‘if any building squares other than 167. & 221.13 should afterwards be established on his part of the Pr’s square the limits of which are there distinctly specified,14 he should have his dividend of them’ admits there were none then,15 and he recieves paiment at £25. an acre for the residue on the footing of a public square. it is proved by the authentic plan established in 97. and the written directions, reserving the ground expressly for the public use. it is explicitly declared by President Washington in his letter of Feb. 20. 97. and is said to have been also declared by Pr. Adams. it is impossible for any thing to be more definitively decided, and I will venture to affirm that there exists no where a power to alter16 it, not even in Congress. for as the were masters of their property, to give, or not to give, so were they of the conditions and limitations on which they would give. having more confidence in the cordiality of the then President, than in that of Congress, towards their new city, they preferred placing under his discretion even what they should give for the use of the US. they trusted that all the material powers would be executed in his time, as in fact they were, & by himself. as to trusts thus submitted to the President, Congress cannot legislate. e.g. they cannot change the location, direction or dimensions of streets or squares or otherwise alter the plan of the city, appropriate squares or building lots, alter the conditions of conveyance, as by authorising wooden houses* &c. on the other hand they have the right to legislate over every thing ceded to them by Maryland. but that cession contained an express reservation of all individual rights. they have the legislation over the bed of the river, may regulate wharves, bridges &c. built into or over it &c

2. the conversion into building lots17 of the angular spaces left vacant in the plan and declaration of 97. have been called alterations. but they are not: they are only successive & supplementory executions of the power, the location of the bed of the canal in 1795. and the establishment of more building lots on Nottley Young’s ground, than appear in the engraved plan, was previous to the plan and declaration of 1797. and expressly established by them. the actual location of squares 728. 729. being different from what they appear to be in the engraved plan, have been deemed alterations. so also the establishment of building squares in a space in Hamburg South of 104. which appears vacant in the engraved plan. but these are errors of the engraved plan; all of them having been laid off before it was engraved, altho’ it escaped Ellicot’s notice.

3. when the Plan & Declaration of 1797. were established, the whole of the delineations had not been actually made on the ground. hence it happened that when they came to be made, they were found impossible & inconsistent with the ground. thus the 15th. & 16th. reservations were intended for a market with a canal leading to it from the river. the actual ground was found too far withdrawn from the river, & that a canal could not be drawn to it. they were therefore corrected by being converted into building squares 852. & 881. and the reservation was located between them & the river.18 [it is now said that these alterations were before the authentic plan, and make a part of that plan.]

4. The plan & Declaration of 97. were void as to so much of them as projected beyond the water edge, beyond which the President’s power did not extend.

5. The bed of the river being vested in the state of Maryland, & by them ceded to the US. with a reservation of the right of legislation until it should be assumed by Congress, the alienations of the right of wharfing so far as they were actually made by the Commissioners before Feb. 27. 1801. consistently with the act of Maryland, were valid. but their regulations of July 20. 1795. did not convey a general right to all purchasers of Water lots. it was no more than an advertisement which they were free to depart from at any time before actual sale. the deed of conveyance is the only thing which could convey the right actually. the Commissioners possessed, as to wharves, not a mere naked power, but a power coupled with an interest: and could therefore vary their terms as a private individual may at any time before an actual contract.

On the whole the Question now recurs. What is the Plan of the city of Washington.

It is, as to it’s main part, the Plan and Declaration of 1797.

1st. emarginated as to so much as projected beyond the water edge.

2. with such wharves added as the Commrs. validly authorised before 1801.

[3. with the alterations of the 15th. & 16th. reservations & of squares 852. & 881.] qu?

4. with the insertion of such angular spaces as have been reserved or19 converted into building lots.

5. the insertion of the appropriation for a market &20 of the 14th. reservation to a Navy Yard.

Oct. 18. 1803. Since writing the above I have seen the opinion of mr Charles Lee, while Attorney Genl. on the subject above considered, and I concur in most of it’s contents. in the following particulars however, I do not.

1. he supposes the Pr.’s sanction will be necessary for such streets as shall be reclaimed from the water. I think that power rests with Congress.

2. he quotes these words of the constitution to wit, ‘Congress shall have power to dispose of and make all needful rules & regulations respecting the territory or other property belonging to the US.’ and supposes they give Congress a power over the squares reserved for the US. but they can have no power over them further than the have granted. the US. are the cestuy que trust, the President (not Congress) is the trustee. the only question in the case of the Queen of Portugal is whether a lot appropriated for the residence of her minister, is appropriated to a public use?

3. he thinks the angular spaces are public ways. I do not think any act of the President’s has made them so.

4. he thinks the Pr. could sell a public square, & lay out the money in other grounds for the same purpose. I think that having declared it reserved for public use, he has so far executed his power, & cannot afterwards alien it for private use.