From Thomas Jefferson
Philadelphia Dec. 11. 1791.
I have given you the trouble of more reading on the subject of Major Lenfant’s letter, than you perhaps intended.1 I have done it from an apprehension that your mind might not be thoroughly satisfied whether he was not equally justifiable in the demolition of mister Carrol’s house, as in the demolition of trees & other obstacles, which he urges in his own justification. the truth is that without orders he was justifiable in neither: and he certainly never had orders to pull down houses.2 I am with the most perfect respect & attachment Sir Your most obedt & most humble servt
ALS (letterpress copy), DLC: Thomas Jefferson Papers.
For the background to this letter, see Pierre L’Enfant to GW, 21 Nov. 1791, editorial note.
1. GW had referred L’Enfant’s letter of 7 Dec. to Jefferson for his opinion, which Jefferson provided as an enclosure, signed and dated 11 Dec., to the above letter: “Observations on Majr L’enfant’s letter of Dec. 7. 1791. to the President, justifying his demolition of the house of mister Carrol of Duddington. He says that ‘mister Carrol erected his house partly on a main street, & altogether on ground to which the public had a more immediate title than himself could claim.’ when blaming mister Carrol then he considers this as a street; but when justifying himself he considers it not yet as a street. for, to account for his not having pointed out to Carrol a situation where he might build, he says ‘the President had not yet sanctioned the plan of distribution for the city, nor determined if he would approve the situation of the several areas proposed to him in that plan for public use, & that I would have been highly to be blamed to have anticipated his opinion thereon.’ this latter exculpation is solid; the first without foundation. the plan of the city has been not yet definitively determined by the President. sale to individuals or partition decide the plan as far as these sales or partitions go. a deed with the whole plan annexed, executed by the President and recorded, will ultimately fix it. but till a sale or partition, or deed, it is open to alteration, consequently there is as yet no such thing as a street except adjacent to the lots actually sold or divided; ‘the erection of a house in any part of the ground cannot as yet be a nuisance in law. mister Carrol is tenant in common of the soil, with the public, and the erection of a house by a tenant in common on the common property is no nuisance. mister Carrol has acted imprudently, in temperately, foolishly; but he has not acted illegally. there must be an establishment of the streets before his house can become a nuisance in the eye of the law. therefore till that establishment neither Majr Lenfant, nor the Commissioners would have had a right to demolish his house without his consent. The Majr says he had as much right to pull down a house, as to cut down a tree. This is true, if he has received no authority to do either. but still there will be this difference. to cut down a tree or to demolish a house in the soil of another is a trespass. but the cutting a tree in this country is so slight a trespass, that a man would be thought litigious, who should prosecute it: if he prosecuted civilly, a jury would give small damages; if criminally, the judge would not inflict imprisonment, nor impose but a small fine. but the demolition of a house is so gross a trespass, that every man would prosecute it; if civilly, a jury would give great damages; if criminally, the judge would punish heavily by fine & imprisonment, in the present case, if Carrol was to bring a civil action the jury would probably punish his folly by small damages: but if he were to prosecute criminally, the judge would as probably vindicate the insult on the laws and the breach of the peace by heavy fine & imprisonment. so that if Majr Lenfant is right in saying he had as much authority to pull down a house as to cut down a tree, still he would feel a difference in the punishment of the law. But is he right in saying he had as much authority to pull down a house as cut down a tree? I do not know what have been the authorities given him expressly or by implication, but I can very readily conceive that the authorities which he has recieved, whether from the President or from the Commissioners, whether verbal, or written, may have gone to the demolition of trees, & not of houses. I am sure that he has received no authority either from the President or Commissioners, either expressly or by implication, to pull down houses. an order to him to mark on the ground the lines of the streets & lots, might imply an order to remove trees or small obstructions where they insuperably prevented his operations; but a person must know little of geometry, who could not, in an open feild, designate streets & lots, even where a line passed through a house, without pulling the house down. In truth the blame on Majr Lenfant, is for having pulled down the house of his own authority, & when he had reason to beleive he was in opposition to the sentiments of the President: & his fault is aggravated by it’s having been done to gratify private resentment against mister Carrol, and most palpably not because it was necessary: and the style in which he writes the justification of his act, shews that a continuation of the same resentment renders him still unable to acquiesce under the authority from which he has been reproved. He desires a line of demarcation between his office & that of the Commissioners. What should be this line? & who is to draw it? if we consider the matter under the act of Congress only, the President has authority only to name the Commissioners, & to approve or disapprove certain proceedings of theirs. they have the whole executive power, and stand between the President and the subordinate agents. in this view, they may employ or dismiss, order & countermand, take on themselves such parts of the execution as they please, and assign other parts to subordinate agents. consequently, under the act of Congress their will is the line of demarcation between subordinate agents, while no such line can exist between themselves and their agents. Under the deed from the Proprietors to the President, his powers are much more ample. I do not accurately recollect the tenor of the deed; but I am pretty sure it was such as to put much more ample power into the hands of the President, and to commit to him the whole execution of whatever is to be done under the deed. and this goes particularly to the laying out the town. so that as to this, the President is certainly authorised to draw the line of demarcation between L’enfant and the Commissioners. but I believe there is no necessity for it. as far as I have been able to judge, from conversations & consultations with the Commissioners, I think they are disposed to follow implicitly the will of the President whenever they can find it out. But Lenfant’s letters do not breathe the same moderation or acquiescence: and I think it would be much safer to say to him ‘the orders of the Commissioners are your line of demarcation,’ than, by attempting to define his powers, to give him a line where he may meet with the commissioners foot to foot, and chicane & raise opposition to their orders whenever he thinks they pass his line. I confess, that on a view of Lenfant’s proceedings and letters latterly, I am thoroughly persuaded that to render him useful, his temper must be subdued: and that the only means of preventing his giving constant trouble to the President is to submit him to the unlimited controul of the Commissioners. we know the discretion & forbearance with which they will exercise it” (DLC: Jefferson Papers).