Memorandum on Land Dispute with John Harvie, Jr.
[after 12 Feb. 1790]
Notes on my title to 485. acres of land surveyed for me Mar. 27. 1788. and to 490. acres adjoining the same and the lands of Colo. T. M. Randolph surveyed for James Marks Nov. 29. 1783.
My titles have a double foundation.
Ist. An Order of council in the following words. ‘At a council held March 11th. 1773. On the petition of Thomas Jefferson, leave is given him to survey and sue out a patent for one thousand acres of land on the South West mountains in Albemarle, between the lines of Thomas Mann Randolph, James Hickman, the said petitioner, Martin Key and William Watson. Copy John Blair Cl. Conc.’
II. Two entries in the following words. ‘Oct. 21. 1774. Thomas Jefferson esqr. enters for 800. acres of land to be included by two entries of 400. acres each to adjoin the land of Thomas Mann Randolph on the South West mountains. Copy Anderson Bryan S.A.C.’
I. As to the order of council.
1. This was completely suppressed by the act. of ass. 1779. c.12.s.3. ‘All orders of council or entries for land in the council books, (except so far as such orders or entries respectively have been carried into execution by actual surveys) shall be, and they are hereby declared void and of no effect.’
[Sect. 10. of this act, referred to by Mr. Harvey, respects claims for lands upon surveys under order of council, which it directs to be laid before the court of appeals. For the policy of the act was to abolish ipso facto all orders of council not carried into execution by survey, and as to those carried into execution by survey, to refer their merits to the court of appeals. This 10th. section therefore concerns the latter only, and not the former, consequently not my order of council.]
[Act. of ass. 1779. c.27. sect.3. Octob. session. respects also only those claims under actual survey which the act beforementioned of the May session of the same year had directed to be laid before the court of Appeals. Consequently this act, also referred to by Mr. Harvie, does not apply to my order of council which was not surveyed, but was completly suppressed by the former act.]
2. The act ass. 1781. c.29. sect.8. completely re-establishes my order of council in the following words. ‘And whereas by the said law for establishing the land office all orders of council or entries in the council books for lands not carried into execution by actual survey, were made void, which, so far as it respected lands on the Eastern waters, produced much injury to individuals and no utility to the public: be it therefore enacted that all orders of council and entries in the council books for lands on the Eastern waters which were in force at the passing of the said act, and which have [not] been precluded from revival by entries or surveys regularly made for the same lands since the passing of the said act, shall stand revived and re-established, and the rights accruing thereon be vested in the persons then owning the same, their heirs or other representatives: and that the said orders of council, or entries in the Council books shall stand on the footing of entries in the surveyor’s books, and as such be considered to every intent and purpose, save only that where they exceed the quantity of 400. as. they shall be good for their whole quantity so far as they would have been good by authority of the said orders of council or entries in the council books before the passing of the said act.’ [It is well known that an order of counc. for more than 1000. as. was void.] My order of council being thus revived I was entitled to 1000. as. if there were so much within the limits therein described, or so much as was within those limits. There proved in event to be but 485 + 490. = 975 acres. I am entitled to the whole of this.
Note. The word ‘not’ in the section of the act last cited was omitted in the first printed acts of the session, and the Chancellor’s revisal, copying that edition, have retained the error but noted it among the errata1 Recourse must be had to the Rolls if disputed. In fact the absurdity of the act, without the correction, reviving only those orders which had been since taken by others under the faith of the law, and not reviving those which had not been so taken, is sufficient evidence of the intention of the legislators.
II. The entries of 1774. seem to have been intended as supplementary to the order of council both as to title and quantity.
Act. ass. 1779. c.12. sect. 2. ‘Where any person, before the end of this present session of assembly, hath made a regular entry according to act of assembly, with the county surveyor for any tract of land not exceeding 400. as. upon any of the eastern waters, which hath not been surveyed or forfeited, according to the laws and rules of government in force at the time of making such entry, the surveyor of the county where such land lies, shall after advertising legal notice thereof, proceed to survey the same accordingly, and shall deliver to the proprietor a plat and certificate of survey thereof within three months: and if such person shall fail to attend at the time and place so appointed for making such survey, with chain carriers and a person to mark the lines, or shall fail to deliver such plat and certificate into the land office, according to the rules and regulations of the same, together with the Auditors certificate of the Treasurer’s reciept for the composition money herein after mentioned, and pay the office fees, he or she shall forfeit his or her right and title, but upon performance of these requisitions shall be entitled to a grant for such tract of land as in other cases.’
Act. ass. 1780. c.9. gives further time.
Act ass. 1781. c. 29. sect. 7. renders the time indefinite as follows. ‘And whereas by the act of Gen. ass. for adjusting and settling the titles of claimers to unpatented lands, a certain time was limited within which the surveyors of the counties on the Eastern waters should survey all lands within their counties regularly entered for before the end of the session of ass. in which the said act was passed, which time was, by subsequent acts, extended to other definitive periods and it not being in the power of the party claiming such entries to compel the surveyor to a performance of his duty, or to controul those accidents which may sometimes render such performance impracticable, it is therefore unjust that he should lose his rights on any failure of duty in the surveyor, whether wilful or involuntary: be it therefore enacted, that the surveyors of the several counties on the said Eastern waters shall proceed, with all practicable dispatch, to survey the said entries before described, and for this purpose shall proceed in notifying the party, making the survey, delivering a plat and certificate, and in all other circumstances as by the act for establishing the land office is directed in the case of surveys to be made on entries subequent to the end of the said session of assembly; and the party interested shall be subject also to the same forfeitures of right if he fail in any thing prescribed by the same act last mentioned, to be done on his part.’
Obj. My entry of 1774. is not sufficiently special.
Ans. ‘Two entries of 400. as. each to adjoin the lands of Th. M. Rand. on the S.W. mountains.’ There were no vacant lands adjoining his but these, consequently no others to which this description could apply. The description designates these lands as perfectly and fully as could be required. Any other additional terms of description would have been surplusage, and the want of a surplusage never vitiates.
Obj. Colo. Randolph’s entry.
Ans. I never intended to prejudice any entry which Colo. Randolph may have there. But I really doubt his having any. Without calling for his entry however I did intend to accomodate him with a part of these lands, if any of them suited him particularly. But this intention was merely voluntary, and directed personally to him as tenant of Edgehill. If he sells Edgehill, I am under no legal obligation, and feel no moral one to convey my lands to a purchaser. If Colo. R. retains Edgehill, and my title under the entries be alone confirmed, then he must take the surplus 175. acres in part of his entry.2
Refer for further explanations to my three following letters to Mr. Harvie
- 1790. Jan. 11.
- Nov. 2
- 1791. Apr. 7.
MS (MHi); entirely in TJ’s hand; undated, but assigned on the basis of internal and collateral evidence cited below; last five lines added at a later date; brackets in original. PrC (CSmH); lacks last five lines; endorsed in ink by TJ: “Harvie John.”
In this document TJ addressed points about a disputed tract of land raised in a letter from John Harvie, Jr., of 2 Feb. 1790 that he received ten days later. Internal evidence and the existence of a press copy suggest that TJ intended the memorandum for arbitrators or, possibly, for presentation to Harvie himself in Richmond, where TJ at one point hoped they would meet to settle the disagreement (see TJ to Harvie, 2 Nov. 1790). In any event, it seems likely that TJ completed it before he prepared his 2 Nov. 1790 answer to Harvie, which made many of the same arguments, and he certainly composed it before 3 Feb. 1791, when he received Harvie’s letter of 25 Jan. 1791, to which he replied on 7 Apr. 1791 relinquishing a part of the claim being defended in the memorandum. The concluding five lines were added no earlier than 7 Apr. 1791 and probably around December 1799, when TJ composed a fuller statement of his position in this protracted and complex dispute (TJ to Harvie, 5 Dec. 1799).
Chancellor’s revisal: see Vol. 2: 321.
1. Preceding six words interlined.
2. Remainder of text lacking in PrC.