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To George Washington from the Commissioners for the District of Columbia, 20 April 1795

From the Commissioners for the District of Columbia

George Town [D.C.] [20] April 17951


It being our earnest wish that every means of just information should be furnished to form a proper Opinion on Mr Johnsons claim under the Contract entered into by the late Board with Morris & Greenleaf;2 we beg leave to forward to you in addition to the Statement handed in by Dr Thornton—the Contract with Greenleaf (see page 3rd marked with double Lines) The State of the Case and opinion of the Attorney General The extraordinary Entries of Jany the 9th Stated by Mr Johnson in his Bill in Chancery The official Letters written to Mr Johnson and to Mr Cranch on the first application of Mr Forrest to purchase a part of the property in Question & Mr Johnsons Bill filed against the Commissioners.3

These are all the papers which appear to us to be necessary, and which being so numerous, we meant not to obtrude on the few leisure moments you have to spare, had not the subject been introduced by others. Whatever complaints we had of Mr Johnsons conduct and of the difficulties it had occasioned; it was our fixed determination to leave the decision of the question between us to that tribunal to which he has appealed: the Decision of which in favor of the City we have little Doubt. The measure now adopted by us is of necessity not choice. If we do not defend our own official Acts from unjust impressions, it is difficult to calculate into what Dilemmas we may be thrown. If once the public are induced to suspect our Integrity, what must be our situation, and how wretched the execution of the Trust delegated to us!

The Statement of facts signed by Us, was drawn up and filed in the Office immediately after Mr Johnson’s claim and his threats of a bill in Chancery were made known with a view while facts were well remembered, to meet his false allegations in a Court of Equity; where our answer was of course to be on Oath. The Entries of Jany 9th made in an old discarded Minute Book, in our absence, and in direct Contradiction to the declared Opinion of the Board publicly given in the presence of Mr Johnson having been found inadequate to the purposes intended; every possible means have been since used to induce us to expunge them: so that this pretended Claim might rest solely on the Construction of Morris & Greenleaf’s Contract⟨.⟩ This we have refused because, Mr Forrest a fair purchaser for a full consideration has an immediate interest in every public Document which concerns the title of that Square; and because we think those Entries will give such a complexion to this business in a Court of Equity as to be alone a sufficient bar to a recovery: it being a first principle there that those who seek Equity must come into that Court with clean Hands and must first do Equity.

The Sale having been made to Colo. Forrest before an actual division had been made of the Square; has been much urged by Mr Johnson against the Commissioners.4 A Short review of that part of the Case will evince that no equitable Ground of complaint against the Board can arise on that score. Had the public part of that Square been permitted by Mr Johnson to remain on the footing it did before he procured a Deed from Mr Peter the Board could at any time have compelled a Division;5 and the public’s half of that Square might have been sold for the purposes of raising a Revenue. It was thought proper for reasons not very difficult to divine to place the legal Estate of the whole of that Square in the Commissioners. Shall Mr Johnson then in a Court of Equity complain of an Act naturally resulting as a necessary Consequence from his own Conduct; and which Conduct must be accounted for upon Oath. No Court of Equity we conceive can countenance such measures. Mr Johnson well knows that a flat negative had been given to his claim, and the Deed from Mr Peter could be intended for no other purposes but to lock up the property in Question and take the chance of Events. It is difficult to account for the bringing forward this Deed under the very peculiar Circumstances mentioned in our Statement upon any other principles especially when it is remembered that Greenleafs claim of water property on Rock Creek was determined by the unanimous voice of the Board to be inadmissible as appears by their Letter to Mr Cranch, and by Mr Carrolls frequent Declarations, that he is Confident that a majority of the Board never meant to admit Mr Johnson’s claim.

Mr Carroll seems when this letter to Cranch was written to have been clearly of opinion that the Lots in question were not included in Greenleafs Contract. Fully impressed with the fatal consequences which must flow from explaining or contradicting the most solemn written Contracts by the recollection of the parties, we made the admissibility of such evidence a part of the Case for the opinion of the Attorney General: his answer is inclosed. Without the aid of legal information, every man of tolerable experience must see that if the most Solemn Contracts were to be explained and construed by the fleeting memory of Witnesses, that one of the surest foundations of every species of property would be destroyed. We believe that the Municiple Laws of no Civilized Country whatever has countenanced a Rule of evidence so absurd. And that the first adoption of it has been left for a ci-devant Chief Justice of Maryland to raise to himself a Revenue of 9d. at the loss of a noble to the revenues of the City of Washington.

It is remarkable that notwithstanding the repeated endeavors to induce us to obliterate the entries of Jany 9th that Mr Johnson in his Bill in Chancery charges as a fact “that the Commissioners had agreed to make him a Title to the Square in question whenever so many Lots as are contained in it should be due to Morris and Greenleaf on their Contract.” Not contented with charging us in his labored private Correspondence, some times addressed to us in our private Characters without even the colour of public business with partiality, knavery, and utter ignorance, the technical language of the Law is Studiously avoided, to introduce the vilest abuse in his Bill in Chancery. And we stand publicly charged on the roles of the high Court of Chancery with evading a Contract Solemnly entered into with him; and with a design to defraud him. In public or in private life we trust we have hitherto been marked with no stain, and it would be too much to suppose we can set down contented under the Load of crimes thrown upon us by Mr Johnson. Official Duty alone led to the measures which have been adopted. However disagreeable the Consequences, a rigid perseverance in those measures appear to us upon every ground to be necessary. We are utterly at a loss to suggest a principle either in Law or Equity on which this pretended claim can be Sustained. Whatever favorable impressions of Mr Johnson we brought with us into Office, Candor requires us to say, he has entirely done away: but Resentment forms no part of the motives to our public Conduct, and we trust never will. Mr Johnson received from us every mark of Politeness and Attention. And we know of no cause of complaint against us except that the Board would not sell to another however liberal the price, without first making an offer to him, at the very moment he was slandering our title and preventing a sale to others. The pursuit of his pretended Claim in a regular train of Judicial enquiry we presumed not to censure; tho’ we vainly hoped that the small Interest he had at stake would not have proved a motive Sufficient to stir a question which eventually might strike so deeply at the Revenues of the City: not indeed for his benefit, but of those who had already fattened too much on its Ruins. Personal abuse and Invective formed no necessary part of an Investigation of Right. We neither in the first instance excited such Conduct, nor led to a continuance of it by Answers. Such Letters as appeared to us to require official Replies were respectfully answered. Those distinguished by nothing but the purity of the Language and the keeness of the satire, are carefully preserved among the Archives of the City, for the benefit of learned posterity; and to be laid before the public when necessary.

This Dispute with Mr Johnson, notwithstanding his constant endeavors to make it a personal one, still remains a mere question of Right. It’s importance to the Revenues of the City, entitled it to our best Consideration. We have given it the maturest Deliberation: and in every possible point of view we think the Claim neither just nor legal. The Attorney General and another weighty Law Authority have given very decided opinions against this claim upon the Construction of the Contract the only Grounds we then judged it prudent to bring forward; there remains however another very strong Ground on which this claim may be defeated; That is, that Morris and Greenleaf are according to their express stipulations entitled to no Conveyances until they comply with their part of the Contract. We are strongly justified in point of facts to say they have not complied with their Contract. There has hitherto been no just ground to bring forward an investigation of this subject and it is believed that the present dispute will be brought to a very happy Issue without it’s aid. It therefore has not been Stated to counsel or made a Subject of Discussion. Had no opinions been obtained we were certainly bound to act up to our own Impressions of what was proper & right. Miserable indeed would be the situation of those in public Office if compelled to act upon any other principle. It was too soon evident that the Board would not be unanimous in all their measures: but our public as well as private Characters naturally dictated to us to act up to our own Impressions of Justice; and we rely with Confidence on the well known wisdom of the executive to countenance our just proceedings.

We yet see no reason to Abandon measures adopted on cool Deliberation; and supported by the most respectable Law Authorities until we do, it will be impossible for us to pursue a different line of Conduct. Tho’ misrepresented, traduced and abused, we have hitherto been impelled by the interest of the City to forbear holding up to the public, the most indisputable evidence of the falsehood of these charges. There is however a certain point beyond which we must not be pressed. The Consciousness of acting right, and from the purest motives will always yield a solid satisfaction, but we owe to the public and to ourselves a justification of our Characters and Conduct.

Impressed with the importance of this Subject and ardently desirous of retaining the good opinion of all virtuous men we have taken the liberty of laying before you all the papers relating to this Subject and we hold ourselves bound to answer for the truth of every allegation made by us. we can with perfect truth say that next to the approbation [of] our own minds, yours will ever yield us the most heart felt Satisfaction. We are with the highest Sentiments of regard and respect Sir &c.

Gusts Scott
William Thornton

LB, DNA: RG 42, Records of the Commissioners for the District of Columbia, Letters Sent.

1The letter-book copyist apparently erroneously recorded the date of the letter as 21 April. GW’s letter to the D.C. commissioners of 24 April and that of Edmund Randolph to the president on 6 July indicate that the date should be 20 April.

2The commissioners referred to their agreement with James Greenleaf and Robert Morris of 24 Dec. 1793, which permitted the two men to purchase a total of 6,000 lots and modified some of the conditions of an earlier sale of 3,000 lots to Greenleaf on 23 Sept. 1793 (see D.C. commissioners to GW, 23 Dec. 1793, and n.1 to that document).

3The papers related to the ongoing dispute between Thomas Johnson and the current commissioners concerning his claim to a right to purchase lots along Rock Creek from James Greenleaf. Johnson based his claim on Greenleaf’s contract of 23 Sept. 1793 with the commissioners (see GW to the commissioners, 20 Aug. 1793, and n.3). That body, however, contended that Greenleaf’s contract excluded him from the selection of water lots, and declined to acknowledge Johnson’s claim (see Johnson to GW, 12 Feb., and n.2 to that document; Edmund Randolph to GW, 27 Feb., n.2; GW to Tobias Lear, 4 March; and Lear to GW, 8 March). Johnson insisted that the restriction applied only to lots along the Potomac River.

The enclosed contract with Greenleaf has not been identified. A copy of the contract is found at PHi: North American Land Company Records. The enclosed statement of the case and the opinion of the attorney general have not been identified.

The commissioners recorded a “Statement of the facts” about the 9 Jan. entries in their proceedings of 18 February. They stated that on or about 8 Jan., Daniel Carroll requested a meeting of the commissioners to receive information from Johnson. At that session, Johnson “made application for half of Square west of Square No. 4, in the City of Washington” on Rock Creek, “in Virtue of Mr Greenleaf’s Contract with the late Board.” Gustavus Scott and William Thornton quickly replied “that Mr Greenleaf was excluded from a selection in Water Lots, and that we could not grant a Certificate under Mr Greenleaf’s Right.” Carroll “spoke very doubtfully indeed, and did not … give any positive Opinion; but both he and Mr Johnson intimated that such had not been their Ideas at the time the Contract was entered into. Our Opinion was repeated more than once, and with firmness.” Johnson then requested several lots in square number 4 and for “the Board to take an equal number in exchange from Mr Greenleaf in some of his Squares.” The commissioners eventually decided “not to grant such Certificate, on any other Condition than Mr Greenleaf’s giving the public the power of Selecting as many Lots, from any of his property not improved, in lieu of them.”

Later, Johnson came back into the room and informed the Board that square number 15 met his needs, “which he would rather do than that Mr Greenleaf should make so great a sacrifice of his property, as to give a Selection from all the unimproved part of it.” When Johnson left the room, the commissioners decided not to grant any certificates “unless they were paid for, or until Mr Greenleaf’s payment under his Contract of December 1794 should entitle him to such Conveyance.” Johnson returned, “and this unanimous Determination was communicated to him by Mr Carroll, who observed that the Board had come to this decision. Mr Scott immediately asked Mr Carroll if it had not been the unanimous determination of the Board?” Johnson asked if he could give a paper to the board “signifying such Consent on the terms mentioned” and received an “Affirmative” answer. He brought the papers, as recorded in the minutes of 9 Jan., and the commissioners agreed to receive them and placed the papers with the secretary in their office.

They made no entry of that day’s proceedings, nor did any member or Johnson request such action, and “the paper alluded to was taken either by Mr Carroll or by Mr Johnson, for the Secretary did not attend this meeting.” During most of the previous board meetings, and at all times when actions of the commissioners “appeared to require it, minutes were made, and handed over to the Secretary, and afterwards entered on the Minute Book … nor does any Instance occur of a deviation from this Rule as to an Entry of the Minutes, unless the present be one.”

Nothing else took place about square number 4 or the square west of 4, and no additional meeting of the board was requested. Late the next evening when the commissioners gathered together, they received a plat of the square west of number 4, possibly delivered by Carroll or Johnson, but without any previous notice. It contained the signature of Robert Peter and a memorandum signed by William Cranch. The members reasoned “that as the public were not likely to be injured by the signature of the Commissioners to a paper which vested in the public the whole of a Square of which they had before a claim to only half, we need not hesitate; accordingly the whole Board consented, and signed. Nothing was said on the subject while we remained in the Room, but as we came out Mr Scott remarked to Dr Thornton that he suggested Mr Johnson had relinquished his pretended Claim to Square west of Square 4 … as the claim was unjust, and in his opinion disreputable; in which Dr Thornton joined, and such was really their opinion.”

The commissioners met again on 14 Jan. and observed that no entry was made of the square west of number 4, “which Mr Peter had consented the public should hold, a blank was left in the minute-book sufficient to hold the Entry, and the Proceedings of the 14th entered in the next page.” No commissioner mentioned the events of 9 Jan. at a meeting “except an Enquiry made by Mr Scott, whether the plat of the Square transferred had been returned,” until Uriah Forrest applied to the board on 5 Feb. to purchase part of the waterfront of the square. At that time, “Mr Cranch’s Letter respecting the said Square was taken up, and answered, without the most distant Intimation of the Board’s having given their consent that Mr Greenleaf was entitled to a Selection in that Square.” Daniel Carroll called for the letter, and the commissioners “unanimously agreed on giving a Negative to his pretended claim.” They declared “in the most clear and positive terms” an “opinion that Mr Greanleaf had no right to Water Lots in that Square, nor to any Water Lots, not expressly included by the terms of his Contract: nor did they by any Act or Words of theirs give any just grounds for a contrary opinion; the papers on the Minutes of the 9th of January never having been produced by Mr Johnson nor asked by him to be received until immediately after his application for a Certificate of the Lots in Square No. 15 to which alone it relates, as Mr Johnson himself well knows.

“Mr Johnson never asked of the Commissioners to enter on their Minutes, any application of his to them respecting Square west of Square 4; nor was it known to a Majority of the Boards that any notice on their Minutes had been taken of either of Mr Cranch’s Letters, until Mr Johnson himself, on his Arrival in George town on the 8th or 9th of February, hinted to Mr Scott, that it would appear from our own Entries that we had consented he should have that Square. The same Idea was about the same time communicated to Dr Thornton by Mr Stoddert who was informed by Colo Deakins that he had it from Mr Johnson. This information led to an examination of the Minutes of the 9th Jany made without orders from the Board, in their absence, and without their knowledge.” A statement followed that “For the full disclosure of the truth, the Board have thought it highly necessary” to question the secretary about the entry and have the information filed in their office and recorded in the minutes (DNA: RG 42, Records of the Commissioners for the District of Columbia, Proceedings).

On 5 Feb. the commissioners received the first application from Forrest to purchase property in the square west of square 4. They sent a letter to William Cranch, Greenleaf’s attorney, that same day: “The Board have taken your application for a Conveyance of the Square west of No. 4, into consideration and must observe that, considering the square alluded to as water property they presume Mr Greenleaf is excluded from his selection there by virtue of his Contract.”

Also on 5 Feb. they wrote to Johnson: “We are offered ten pounds per foot front payable in negotiable paper at 90 days for our part of Square west of Square 4 which we have not accepted but shall unless you will give a better price, as we think ourselves bound to sell to the first & best Bidder, unless better terms are offered by others. We shall wait for your answer ’till Thursday, the return of Post and if you do not then purchase we intend to close with the offer made.” A postscript was added that the commissioners received Johnson’s letter of 17 Jan. and agreed to let him purchase five lots in square 4 “at one eighth of Dollar the Square foot” (all in DNA: RG 42, Records of the Commissioners for the District of Columbia, Letters Sent). A discussion of how the commissioners amended that letter is in the 5 Feb. entry of the minutes (DNA: RG 42, Records of the Commissioners for the District of Columbia, Proceedings).

Johnson’s bill of Chancery was filed on 20 March. It argued that the sale to Forrest, in the face of Johnson’s contrary claim, was designed to “defraud” Johnson (MdAA: Chancery Papers, “Thomas Johnson vs. Daniel Carroll, Gustavus Scott, William Thornton, Uriah Forrest, and William Campbell. PG. Title to lots in Washington, D.C.”).

The papers handed in by Thornton have not been specifically identified but probably were the materials brought to Philadelphia by Thornton and discussed in Randolph to GW, 27 February.

4Following Forrest’s offer of 5 Feb. to purchase property in the square west of square 4, Johnson stated his claim to the square and made enquiries thereon in his letters to the commissioners of 12, 13, 15, and 21 Feb., and of 15, 18, and 19 March (DNA: RG 42, Records of the Commissioners for the District of Columbia, Letters Received).

5The commissioners’ minutes note the reception of a letter with Johnson’s deed from Peter for half of the square west of square 4 on 20 Feb. (DNA: RG 42, Records of the Commissioners for the District of Columbia, Proceedings).

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