To John Harvie, Jr.
Monticello Nov. 2. 1790.
Having had occasion to go to Richmond soon after my arrival here, I took with me the papers relative to the 490. as. of land, in hopes of seeing you there and settling that question. But you were gone to Caroline. Being now near my departure, I see no prospect of settling it before my return, the epoch of which is uncertain. I cannot help thinking but, were we to meet, we could convince one another: for both of us are capable of understanding the law, and neither would wish to oppose it. You cite the acts of assembly May 1779. c. 12. sect. 3. and 10. and Oct. 1779. c. 27. sect. 3. But be pleased to observe that of these it is only 1779. c. 12. sect. 3. which concerns our case, as relating to orders of council not carried into execution by actual survey: of which description mine was. Sect. 10. of the same act and sect. 3. of the October act relate only to orders of council carried into execution by actual survey. The law keeps these two descriptions perfectly separate and clear. It abolishes those not surveyed ipso facto, and totally: those surveyed it orders to be laid before the court of appeals to be decided on by them. I admit then that all orders of council, prior to 1779. not surveyed, were abolished by the act of May 1779. c. 12. sect. 3. and that mine was consequently completely abolished. [This general abolition was the basis of Mr. Mason’s plan to get all the large grants out of the way, and he could not find a just discrimination between orders on the Eastern and Western waters, so as to condemn the latter only and leave the former subsisting. But so great was the clamour against abolishing orders of council on the Eastern waters against which there were no objections either of justice or policy, merely to countenance such an abolition on the Western waters where policy, either public or private, called for it, that the assembly in 1781. by their act c. 29. sect. 8. as completely re-established all orders of council, on the Eastern waters, not precluded from revival by entries or surveys made during their abolition. This revived my order of council so clearly, that I am at a loss to guess the objection to it.
Again, consider my right under the two entries of 1774 which were subsidiary to the order of council both as to title and quantity, for it was suggested there was more than 1000 acres. The act of ass. of May 1779, c.12. sect. 2. required the surveyors to survey all entries on the Eastern waters which had not been surveyed (of which description mine was) within 3. months, and declared that the party attending and complying with the regulations there specified, should be entitled to a grant. This term of 3. months was prolonged by subsequent acts till the assembly of 1781. impressed by the injustice of requiring surveyors to do in 3. months what was impossible to be done in many counties in 10. years, and by the public clamour against so wanton an ex post facto violation of private rights, by their same law c. 29. sect. 7. gave an indefinite time to their completion, only enjoining on the surveyors all practicable dispatch. Here then my entries, which from the ‘failure of the surveyor, either wilful or involuntary,’ as the act expresses it, had been in jeopardy, were placed again on just, reasonable, and safe ground. Neither before nor since this act was there ever a moment’s failure on my part. I constantly pressed the surveyor to survey, which he postponed till he could have time to search out Colo. Randolph’s line on which I was to bound. As soon as my back was turned, that is the next month ensuing my departure for Congress and Europe, he was induced by Mr. Marks, on what motives I have no opportunity of knowing, to survey 490 acres for him under a junior entry, and it was not till 5 years after that he would survey mine, and then he finds only 485. acres for me, tho’ I was entitled to 1800 if there were so much. He sais in his justification in a letter to me of Jan. 10. 1790 that ‘Mr. Marks assured him the land would be given up on my making it appear that my claim was prior.’ He knew that it was prior, as well as Mr. Marks, but it was intended to effect by a juggle what could not be effected by law, and what the law will condemn now that it has been effected.]1 On this view of my right then under the entries I cannot see an objection that can be raised. Yet, my dear Sir, if you can make any which are solid, I shall be ready to yeild to them. If we should stumble, in the course of our discussion, on any part of the law which we understand differently, we shall at least by discussion have brought the matter to it’s true point, and that we will refer to the arbitration of any of the judges. You say my entries were not sufficiently special. Yet certainly they do apply exactly to the lands in question, and to no other spot of land on the globe. The order of council indeed mentions more of the landholders to whom these vacant lands were contiguous: but this was not necessary. It was never required to name all the contiguous landholders, nor any given proportion of them. Such an enumeration was mere surplusage, and the omission of a surplusage never vitiates. I have never seen Mr. Marks’s entry. Perhaps that has not pretended to enumerate all the contiguous landholders. Can you take the trouble of writing to me at Philadelphia to see if we can agree ourselves whose is the right, or otherwise know the point on which it is to hang, that that may be ready for arbitration the first visit I make to this country?
My letters from thence may give you news. From this place you will expect none. I have only to add therefore assurances of the unalterable esteem with which I am Dear Sir Your affectionate friend & servt,
PrC (MHi); extremely blurred, but text has been verified from a subsequent Tr (MHi) in TJ’s hand (which varies as indicated below in note 1) and from a 19th-century Tr (ViU) in the hand of an amanuensis.
1. At this point in TJ’s Tr the passage in brackets (supplied) is omitted. In its place is the following (including brackets): “[here followed in this letter a discussion of the effect of the acts. But as the whole substance of it is presented in a subsequent paper, and some additional considerations, the trouble of copying and reading this part of the letter may be saved. It proceeds thus].” On the tract in dispute, see TJ to Harvie, 11 Jan. 1790; see also TJ to Bryan, 6 Jan. 1790.