To John Harvie, Jr.
Philadelphia Apr. 7. 1791.
The recess of Congress, and a relaxation in the business which immediately ensues their separation, permits me now to turn my attention a little to my own affairs. I resume therefore the subject of my letters to you of Jan. 11. and Nov. 2. 1790. and yours to me of Jan. 25. 1791. respecting my right to the 490. acres of land included in my order of council of Mar. 11. 1773. for 1000. acres, and also in my two entries of Oct. 21. 1774. for 400. acres each, surveyed for James Marks on a junior entry, and purchased from him and Colo. Randolph and patented by you.
With respect to the moiety of the 490. acres sold to you by Colo. Randolph, as I never had an idea of using my orders or entries to injure any right he had, so I will not now avail myself of them to injure any right he thought he had, and in consequence conveyed to you. And if I mention some circumstances on this subject, it is only to bring facts to rights, and to place myself in that point of view which a thousand such tracts of land would not induce me to relinquish. The transaction is a very antient one: no wonder therefore if Colo. Randolph’s memory and my own confound some circumstances. Colo. Randolph says to you ‘that about 18. or 20. years past I told him I had made an entry for him with the surveyor of Albemarle (Staples) for vacant lands adjoining Edgehill which I would have surveyed for him.’
Ans. Exactly 18. years ago, to wit in 1773. I obtained my order of council for 1000 acres adjoining Edgehill. I had understood that Colo. Randolph had an entry or survey there for either one or two hundred acres, which I apprehended was liable to a caveat, and I told him my order of council should cover it for him. I repeated the same thing to Bryan the surveyor from time to time, and it was the delay occasioned by seeking after the supposed lines of Colo. Randolph’s survey, which prevented Bryan from making mine. Colo. Randolph therefore only mis-remembers my covering his entry for him, instead of my making an entry for him with Staples. This could not be, as Staples had been then dead 6. or 8 years, for I think he died in 1763. or 1764. before I came of age, and 3. or 4. years before I removed from Williamsburg to live in Albemarle. This is mentioned only to shew that there was foundation for the substance of what Colo. Randolph thinks he recollects, so far as that I was to cover an entry for him. The entry he was supposed by me to have was either of one or two hundred acres of land, which I am now satisfied had been surveyed before and patented to him, and is no part of either the 490. in question or my 485. However, I mention these things only to rectify ideas as to the fact. I never did, from my cradle to this moment, consider Colo. Randolph’s interests as alien to me; I am much less disposed to do it after circumstances have in some degree identified our interests. I therefore relinquish all claim to the moiety of the 490. acres sold by him to you, and I hereby confirm the same so as to place him clear of any demand or responsibility on that account. And I reduce my claim to the moiety held under James Marks.
As to this moiety, my right rests on the general statement contained in my letters of Jan. 11. and Nov. 2. I shall now therefore only subjoin short sketches of answers to some objections contained in yours of Jan. 25.
You observe that you had never heard of my claim till I wrote to you on the subject. I never had an idea, my dear Sir, of your being in the least conusant of the transactions which I complain to have been smuggled into a semblance of right, during my absence from the country, to take my property from me. I know you to be as incapable of it as any man on earth, and from the bottom of my soul acquit you of it. But I expressly charge Mr. Marks with having made his entry, surveyed and sold it, knowing of my prior right, because he and I had one, if not more, pointed conversations on it, beforehand, and because he was expressly warned of my right by Bryan, who I agree with you was very reprehensible for surveying for Mr. Marks. Towards no man would he be so reprehensible as towards myself. But this does not lessen the mala fides of Mr. Marks, nor could he make his title the better by conveying it to an innocent purchaser.1
Obj. Your survey was returned in 1784. and open to a caveat till 1786. Ans. The survey was made after I left the country on public business, under public privilege and protection, and the term for a remedy by caveat run out before my return. I arrived at my own house the 23d. of December, 1789. and wrote to you on the subject the 11th. of the ensuing month.
Obj. When a grant has been fraudulently or surreptitiously obtained it will not stand in equity, but throughout this whole business your title wears a very different aspect.’
Ans. I again confirm, my dear Sir, the innocence of your conduct. But Mr. Marks knew of my right, and Mr. Bryan knew of it. It was fraud and surprise in the former and collusion in the latter to enter and survey what both knew to be mine. Bryan indeed says that he did it on ‘Mr. Marks assuring him the land would be given up on my making it appear that my claim was prior.’ This is a poor palliative for him. Your title, tho’ innocently acquired by you, is still built on original wrong, and must stand or fall with that wrong. Let me add too that equity does not confine itself to the vacation of fraudulent or surreptitious grants; it reforms those also obtained by error. If Mr. Marks had obtained a grant of my lands, not knowing they were mine, Equity would vacate his grant.
I close with you in submitting this decision to indifferent persons. I repeat that the subject now claimed is only the moiety of the 490. acres which you hold under Mr. Marks. Whatever award shall be rendered, I make it obligatory on myself and my heirs. I would chuse that the arbitrators should be taken from among the judges, federal, or of the state, and would as live they should be the three eldest (Mr. Wythe excepted, whose peculiar friendship to me, I would not wish to embarrass with such a reference). I believe Mr. Pendleton, Mr. Blair and Mr. Lyons are of the oldest commissions. These or any others you please may decide it. I do not wish to lay any thing before them but this and my two former letters, in which the matter is stated as far as my time will permit. The letter from Bryan of Jan. 10. 1790. as also my original order of council and copies of my two entries are in possession of Colo. N. Lewis who can himself give perhaps some information on the subject. I recollect nothing else which can be material. If there is any important fact to be supported, other than these will support, I should wish to be apprised of it. Otherwise let the matter be settled whenever and wherever these gentlemen shall happen to be assembled. The sooner the better, and you in possessing my three letters, and at hand to procure from Mr. Lewis the documents before mentioned, can have it settled when you please.—I wish, my dear friend, I could have abandoned to you the whole instead of the half of these lands. But they adjoin on the back of my lands also, as on yours; they are most excellently timbered, and lying on the mountain which leads down into all my lands on that side of the river, are a valuable resource for that article. I am told too there is as much land in the tract, of the very first quality as would employ 8. or 10. hands for a tobacco plantation. Knowing my right to be the most antient, believing it the most just, having for 18. years been doing every thing in my power to have it completed, I hope I shall be viewed by you as only endeavoring to hold what is my own, not as attacking the property of another. It is not pleasant to have even differences of opinion about property with a friend, and especially with one whom I esteem as sincerely and highly as I do you: but it is comfortable at least, if one is to support a right, that it is against a reasonable competitor, and one as capable of a chearful acquiescence, as I am myself, under whatever award shall take place. In fine, be it yours, or be it mine, I shall for ever cherish the sentiments of cordial esteem & attachment with which I am, my dear Sir, Your sincere & affectionate friend,
P.S. Your favor of Mar. 19. and the letter it inclosed are recieved. This shall be forwarded by a vessel which sails in a few days for Havre.2
PrC (MHi); first page only; second page in ViU: Edgehill-Randolph Papers; final four pages in CSmH, being attached to PrC of TJ to Ross, 6 May 1791. Tr (MHi); entirely in TJ’s hand and probably made by him in 1795; at head of text in TJ’s hand: “Copy.”
The present letter, together with those of 11 Jan. and 2 Nov. 1790, states TJ’s claim with precision. For a note on the other documents in the case and for a survey showing the location of the 490 acres in dispute, see TJ to Harvie, 11 Jan. 1790. Conusant: a legal term meaning cognizant or having an actual knowledge of a matter. As TJ had learned from Sir Edward Coke’s Institutes, a conusant was one who, knowing of an agreement in which he had an interest, made no objection to it. In using this term, as in stating his case with such precision in the letters referred to, TJ seemed to be addressing himself less to Harvie than to the arbitrators to whom he urged that the matter be submitted.
1. At this point in Tr, TJ added the following: “[add to all this that my prior right was on record, and a record is notice to all the world].”
2. P.S. omitted from Tr.