From Jonathan Dayton1
Elizabeth Town [New Jersey] May 29th. 1790
In compliance with your request that I would commit to paper and transmit to you the reasons which I conceived would justify me in tendering military rights of land, so far as one seventh part of each payment stipulated to be made by Judge Symmes2 for his purchase between the Miami rivers, should extend, at the rate of an Acre for every Dollar to be paid, I have herein stated a few facts which appear to me to operate conclusively in favor of such an opinion.
Congress, in one of their resolutions of the 16th. of September 1776 pledged themselves to grant lands in the proportions therein prescribed, to such officers & soldiers as should engage in their service for the war and continue to the end thereof.3 Since the establishment of peace, the Secretary at war, in fulfilment of that promise, and in compliance with a particular order of the late Congress,4 has proceeded to issue warrants to military applicants in such proportions, as to number of Acres, as their respective ranks entitled them. It is expressed on the face of these warrants that they may be located “in any of the Districts appropriated for satisfying the bounties of land due to the late army.” By the report of a Committee approved by Congress and referred to the Board of Treasury to take order on the 23rd. of July 1787,5 the Board was authorized & empowered to contract with individuals or companies for a grant of a certain tract of land therein defined, & on certain conditions therein expressed. They were not to take less than one Dollar per Acre for the land within the tract, but were allowed in their discretion to make “a reduction by an allowance for bad land & all incidental charges and circumstances whatever” provided that such allowance did “not exceed in the whole one third of a Dollar per acre”. They were to admit military rights or bounties of land in discharge of the contract, acre for acre, provided that the aggregate of such rights should not exceed one seventh part of the land to be paid for. Under these powers, the Board of Treasury made two contracts, exactly similar as they respected the point in question; the one with Messrs. Cutler & Serjeant,6 the other with Mr. Symmes. My application to you was on behalf of Judge Symmes & his Associates, whose Agent I am, & in behalf of the Officers & soldiers of the late Jersey line who have appointed me to act for them. You will perceive by recurring to our contract with the Board, that each of our two first payments amounted to 82,198 Dollars, one seventh part or 11,742 Dollars of which were payable in military rights. The proportion of the two first payments which may be discharged by the warrants issued from the war-office, is 23,484 Dollars; for effecting which I have collected & am prepared to lodge with you the warrants so issued for 23,484 Acres. This statement brings the business to the point to be decided viz. whether warrants for 23,484 Acres of land will entitle us to a credit of 23,484 Dols. or whether in order to be entitled to that credit, we must lodge warrts. for 35,226 Acres. After making the greatest allowance in my own case, for the influence which our wishes or our interest too frequently & almost imperceptibly gain over our judgments & belief, I do not hesitate to say that, in point of right & fair construction, the former of the two positions should prevail.
The Board of Treasury had not power to sell the lands of the United States for less than a Dollar per Acre, but they had a discretionary power to make an allowance for bad lands, & for lakes, ponds & marshes, hardly, if at all, drainable, & for hills & mountains not tillable if accessible, by reducing the number of acres actually contained within any tract not more than one third, & thus requiring the payment for two thirds of the contents only. I appeal to your own recollection whether Congress did not mean by their resolves that the lands which were of a quality called good, or rather which were marketable, should bring a Dollar per Acre, & it would be to bring into too severe question the justice and generosity of that body, if it should be construed to have been the intention of Congress when they made the gift, or at any time since, to pay the army their bounty in either of the above descriptions, which they must have meant to have thrown in & to exempt from sale when they enabled the Board to make a deduction of one third in forming their contracts.
You will doubtless, sir, agree with me that every instrument of writing should, if possible, be so construed as to be consistent in all its parts. That When any sentence or expression contained in it admits of two constructions, the one adverse, the other favorable to the parts precedent, the favorable one should, for the sake of consistency, be adopted. In the powers under which the Board contracted there is a plain & strong injunction that “the price be not less than one Dollar per acre for the contents of the tract”7—it cannot be denied that the proviso immediately following might be construed to authorize the Board to receive five shillings in payment for each acre; but in this case it would be inconsistent with the first established price, & would be charging the Committee & Congress with the blunder of saying that their Commissioners shall not sell their land for less than a Dollar per acre, but for certain reasons may sell it at five shillings an acre; if, on the other hand, the construction, which I advocate, be given it, no such inconsistency will follow, but it will very properly stand thus. Congress directed the Board to dispose of lands at not less than a Dollar the acre, but knowing that in every tract of a million of Acres there would be lands which could not be occupied, or at least not without an expence equal to their full value, they empowered the Board to make a reduction or allowance from the quantity contained in any tract, provided such reduction should not exceed one third of such quantity. Judge Symmes & his Associates contracted for a tract of one million of acres, but of this million are only to pay for two thirds at the rate however of a Dollar per acre, the other third being the allowance for bad land &c.
That the sales thus made were, in your own belief, at not less than a Dollar the Acre, appears clearly from a declaration to that effect in your report to the house of Representatives on the subject of public credit. “The general price, says the report, at which the western lands have been heretofore sold, has been a Dollar per acre in public securities.”8 And as the lands sold to the Ohio company & to Symmes amount to seven eighths of the whole of the sales, it is plain that those contracts were particularly alluded to. Permit me to add that you have confirmed, as far as it was possible, the point which I contend for, not only by the declaration just mentioned, but by assuming that very price of a Dollar per Acre as the foundation of that calculation which makes a material part of your first proposition for funding the debt. If the lands, heretofore disposed of, were sold at two thirds of a Dollar, would twenty Cents estimated upon your own principles be “a fair valuation”? Would it “seem to bear an equitable proportion to the two considerations of value at the time & likelihood of increase”? Should the decision in this particular be against the army, would not your determination in the present instance seem to disagree with your assertion and proposition in the case of your report? Having thus made the statement you requested, I now most willingly submit to you the matter in question, &, whatever may be your decision, shall, for my own part, very cheerfully acquiesce, for I know it will be a just one. I should be happy in receiving a letter from you as soon as convenient on this subject, and am sir with very great respect & esteem Yours
The Honble Alexr. Hamilton Esqr.
ALS, Rutgers University Library, New Brunswick, New Jersey.
1. Dayton, a New Jersey lawyer, was a member of the state Council in 1789 and speaker of the Assembly in 1790. He was an associate of John Cleves Symmes in the Miami Purchase.
2. Symmes, a resident of Morristown, New Jersey, organized the New Jersey group that obtained the Miami Purchase in October, 1788. The grant comprised a million acres along the Ohio River and extended northward between the Miami and Little Miami rivers in Ohio. Congress and the President later reduced this grant to 311,000 acres after extended controversy with the Miami Associates.
When Washington appointed the governing officials of the Northwest Territory in August, 1789, he named Symmes as one of the judges.
4. On July 9, 1788, as part of “A supplement to an ordinance entitled An Ordinance for ascertaining the mode of disposing of lands in the Western territory” Congress ordered:
“That the Secretary at War issue warrants for bounties of land to the several Officers and soldiers of the late continental Army who may be entitled to such bounties, or to their respective assigns or legal representatives, certifying therein the rank or station of each Officer, and the line, regiment corps and company in which the Officer or soldier served.” (JCC description begins Journals of the Continental Congress, 1784–1789 (Washington, 1904–1937). description ends , XXXIV, 306–08.)