To Bushrod Washington
Monticello Oct. 1. 1795.
Some months ago a subpoena in Chancery at the suit of Mr. Banks was served on me as former governor of Virginia, calling on me and others not named [but I suppose the Counsellors of that day] to appear &c. Presuming it was for some act done on behalf of the commonwealth I wrote to the governor to know whether I must defend, or whether the executive would not undertake it for the Commonwealth, as they were possessed of the records and materials of defence. In his answer he assures me it shall be defended by the executive. Still however, as I dislike being in court even as a nominal defendant, I wish to be withdrawn, if possible, and must get the favor of you to appear for me. As it is a case in which I am not personally responsible, I mean to take every possible advantage in defence. The following means occur. 1. dismiss his suit rigorously for want of a bill, for he had not filed one at the date of the Governor’s letter. 2. plead the act of limitations, if the case admits it. 3. plead that I did the act in the name, on behalf, and as the servant of the Commonwealth, against which therefore and not against me his suit lies. 4. justify under the acts of assembly, if there were any which authorized it, for not knowing what wrong he complains of, I do not know whether there was a law authorizing it or indemnifying. 5. justify by public necessity; I have no doubt that such a necessity existed. 6. plead former decisions of the executive or legislature or courts against him, for it is suggested to me that the object of his suit has been before decided against him. I mention these several matters to you from which you will be pleased to select such as may suit the case as soon as we know what it is. The most desireable thing to me is to be dismissed out of court with my costs as soon as possible, which is the chief object of my asking the favor of you to appear for me, personally, and whenever you can get me discharged, leaving the cause afterwards to the management of the commonwealth. Inclosed in this letter I send your fee, and am with great esteem Dr. Sir Your most obedt. servt.
RC (ViU); brackets in original; addressed: “Bushrod Washington esq. Atty at law Richmond”; endorsed.
I wrote to the governor: TJ to Robert Brooke, 24 May 1795. His answer: Brooke to TJ, 4 Sep. 1795. The enclosed fee was £5.3.2½ (MB description begins James A. Bear, Jr., and Lucia C. Stanton, eds., Jefferson’s Memorandum Books: Accounts, with Legal Records and Miscellany, 1767–1826, Princeton, 1997, The Papers of Thomas Jefferson, Second Series description ends , 2 Oct. 1795).
SJL records letters (now missing) from Washington to TJ of 12 and 24 Oct. 1795, received respectively on 15 and 26 Oct. 1795, and from TJ to Washington of 29 Oct. 1795.