Statement for Arbitrators in Land Dispute with John Harvie
[ca. 5 Dec.1799]
Case between T. Jefferson and John Harvie1
Thos. M. Randolph decd. James Hickman, Martin Key William Watson, myself & others held lands on both sides of the S.W. mountains in Alb. the headlines of our several tracts on or near the summit of the mountain encompassing some vacant lands, in the form shewn by the Surveyor’s plat.
There was an idea that Colo. R. had an entry or survey for one or two hundred acres within the same limits, liable to a caveat. I told him my order should not prejudice his right, whatever it might be3 but should cover it.4
In June 1773. Anderson Bryan became surveyor of the county, & some circumstances relative to his coming to the office have had too remarkeable an effect on the present case not to be noted. mr Bryan was a clerk to mr Wayles. on his death, being likely to be out of business, I taught him to survey, procured the surveyorship of Alb. for him, became his security, took him into my family & gave him his board for some years. in return he now & then aided me in writing, but was particularly to do my surveying without fees. as soon as he was appointed, I notified my ord. of conc. to him, and desired him to survey as soon as convenient. but being pennyless it was necessary for him to work first where he might get some money. on a suggestion afterwards that5 there might be more than 1000. as. of lands in the vacancy beforementd. I made with him 2 entries for 400. as. each in the followg words.
‘Oct. 21.1774. Thos. Jefferson enters for 800. as.6 &c
The law required nothing further of me than to be ready whenever the surveyor should notify me to attend the making these surveys, but I valued the lands too highly not to be anxious for completing my title. however the supposed entry or survey of Colo. TMR. the lines of which if they existed,7 were necessary to be found, threw some real difficulties in the way of the surveyor. he made now & then an effort to find the lines, as I did also: but they were never found, because in truth there existed no such entry or survey.
In the mean time James Marks makes an entry with Bryan for lands within the same limits. Bryan informed him of my prior order & entries; but made the entry for him, as it would be good if there were more land than I claimed. mr Marks applied to me to let him run out his entry, but I expressly refused it.
The Revolution now came on, & suspended the means of obtaining grants of land. independance was declared in 1776. but it was not till 3. years after that the legislature re-opened the land office. mr Mason then came forward with his plan of a land law. his great object was to remove out of the way the great & numerous orders of council to the Ohio co. Loyal co. Missisipi co. Vandalia co. Indiana co. &c. and the thousands of entries for lands with surveyors of counties, which covered the whole Western country; & not being able to find a proper8 discrimination between those on the Eastern & Western waters, so as to condemn the latter, & leave the former subsisting (to which there was no objection) he involved the whole in the sweeping clauses which follow.
Act. ass. 1779. c. 12. §.3. ‘All orders of council, or entries for land in the council books (except as far as such orders or entries respectively have been carried into execution by actual surveys) shall be, & they are hereby declared void & of no effect.’
By this clause my order of council was compleatly abolished; because it had not been carried into execution by actual survey. if it had been surveyed, it would have been one of those to be laid before the Court of appeals.
The section next before of the same act had given as fatal a blow to entries for land with the surveyors, in these words.
§.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. acres upon any of the Eastern waters, which hath not been surveyed or forfieted 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, & shall deliver to the proprietor a plat & certificate of survey thereof within 3. months: & if such person shall fail to attend at the time & place so appointed for making such survey, with chain carriers and a person to [mark the lines, or shall fail to deliver]9 such plat & certificate into the land [office, according] to the [rules and regulations] of the same, together with the Auditor’s [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.’
To annul all entries which should not be surveyed within 3. months, was to spare a small proportion of them indeed. however so great were the clamors against the injustice of abolishing orders of [council, &]10 vacating entries on the Eastern waters, against which there were no objections either of right or policy, merely to countenance such an abolition on the Western waters, where policy, either public or private called for it, that […] an intermediate act (1780. c. 9) giving further time, the assembly in 1781. by their act c. 29. reestablished all orders of council & entries on the Eastern waters, not precluded by entries or surveys made during their abolition, by the following clauses in that act.
§.7. ‘And whereas by the [act of]11 General assembly for adjusting & 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 sd act was passed, [which time was] by subsequent acts extended to other definitive periods, & 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 [impractica]ble, 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 sd Eastern waters [shall pro]ceed with all practicable dispatch to survey the sd entries before described, & for this purpose shall proceed in notifying the party, making [the survey,] delivering a plat & certificate, & 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] subsequent to the end of the sd session of assembly: & the party [interested] shall be subject also to the same forfietures of right if he fail [in anything prescribed] by the [same act last mentioned], to be done on his part.
[§.8. ‘And whereas by the sd 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 & no utility to the public: be it therefore enacted that all orders of council & entries in the council books for lands on the Eastern waters, which were in force at the passing of the said act, & which have *[not]12 been precluded from revival by entries or surveys regularly made for the same lands since the passing of the sd act, shall stand revived & re-established, & the rights accruing thereon be vested in the persons then owning the same, their heirs or other representatives: & that the sd orders of council, or entries in the council books shall stand on the footing of entries in the surveyor’s books, & as such be considered to every intent & 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 sd orders of council or entries in the council books before the passing of the sd act.’
*Note the word ‘not’ was omitted in the first printed acts of the session, and the Chancellor’s revisal copying that edition, has retained the error, but noted it among the errata in the Postscript. 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, & not reviving those which had not been so taken, is sufficient evidence of the intention of the legislators.
Here then all orders of council & entries on the Eastern waters being revived & put on the footing on which they were before the abolition of 1779. my order13 and entries were completely re-established.
Immediately on the passage of this law, to wit Dec. 18. 1781. I paid into the treasury £30 composition money for these lands, and sent the Treasurer’s reciept to mr Wiley, to be presented with the copy of the entries to the Auditor to be endorsed by him & then carried to mr Harvie, at that time Register of the land office14 to obtain corresponding land warrants. mr Harvie however advised to have surveys made, & to present the surveys, with the Treasurer’s reciept to the Auditors, who would endorse on them that the Composition15 money had been paid whereon patents would issue from the land office.
I now returned to the charge with the surveyor. it will be observed that from the dates of my order of Mar. 73. and entries of Oct. 74. till the land office was shut up in 74. or 75. he had urged difficulties as to Colo. R’s line. from that time till Dec. 81. the proceedings hung on the occlusion of the land office except during the short intervals allowed by the acts of 79. & 80. which were sufficient but for a very small proportion16 of what he had to do. he now urged the pressure of other work, as people began to be anxious to get their old entries completed. he was poor & wanted money,17 reasons for my being still easy with him. in the autumn of the ensuing year 82. before the surveying season I was called away by Congress to go to Europe. after passing the winter in Philada the conclusion of peace superseded my going further. I returned home in June, & went off to Congress in Oct., wch was again before the surveying season began, & thence went to France leaving among my last injunctions to messrs Eppes & Lewis my attornies to have these lands surveyed. as soon as my back was turned to wit Nov. 29. 1783. Bryand was induced to survey 495. as. of these very lands for James Marks under his junior entry,18 giving him the whole of the compact and fertile part. he says in justificn in his letter of Jan. 10. 90. that ‘mr Marks assured him that mr R. was to have the land, and he made no doubt that that gentleman would give up all title to it on my making it appear that my claim was prior.’ the poverty of this excuse is too palpable to need a comment. the true one was that he was to receive a fee if he surveyed for Marks, but none if he surveyed for me. no body I suppose offering him fees for the unsurveyed residuum, 5. years after, to wit 1788. Mar. 27. he surveyed it for me, being then reduced to a ragged string of rocks of19 485. as. to satisfy an ord. of council & entries for 1800 as. Marks sold his right to Colo. Rand. & he to mr Harvie.
I returned from Europe in the winter 1789. arriving at my own house Dec. 23. and understanding what had passed wrote to mr Harvie within 19. days from that time, to wit Jan. 11. 90. reclaiming my right, and proposing an arbitration. to this he readily consented, entering into some explanations of the ground of his right, and particularly that Marks’s survey was made for the20 joint benefit of Marks & Colo. Randolph, that Marks had sold his moiety afterwards to Colo. Randolph, who claiming the other moiety under what I had said to him in21 1773. had sold the whole to Colo. Harvie.22 Answer. the entry & survey are made in Marks’s name alone for the whole; & neither trust nor interest for Colo. Randolph appears on the surveyor’s certificate. but I suppose mr Harvie’s title papers will shew whether Colo. Randolph claimed the whole by purchase from mr Marks, or half from him & half from me. in the latter case the following observations are to be made. 1. the promise was gratuitous, not, on that account, the less solid in my estimation but to be kept in it’s original shape. 2. it was made on the supposition that Colo. Randolph had an entry or survey, & it was only to protect that. it is become evident he had neither entry nor survey; since no entry can be found in the surveyor’s books & not a marked tree on the land. 3. it was to protect his land, not to give him mine. 4. what was the quantum of land to which the promise went? exactly that of his survey, which was nothing. 5. where was it’s location? exactly where his survey was, which was nowhere. if Colo. Randolph did really suppose that out of a promise expressly commensurate with his supposed survey, he could make a title to a moiety of 495. as. clear of all previous survey, and has actually upon that title undertaken to sell & convey it to mr Harvie, it was indeed a very inaccurate estimate of the promise, but I have said that I will yield it, and so I will. I presume it was an undivided moiety, and that a fair division as to value is to be made. mr Harvie’s title papers will doubtless show exactly what is the real interest which Colo. Randolph sold on the ground of my promise, and what was sold on mr Marks’s own right. this latter I reclaim.
This statement is prepared for the consideration of the arbitrators.23 I annex to it the following documents.
- 1. my original order of council.
- 2. my entries attested by Bryan the Surveyor.
- 3. an explanatory plat.
- 4. the Treasurer’s reciept for the £30. composition money, with a memorandum written under it by myself, when I sent it to mr Wiley to present to mr Harvie, and a second memorandum of his answer communicated to me by Wiley.
- 5. Bryan’s letter of Jan. 10. 90.
- 6. the correspondence between Colo. Harvie & myself on this subject which will shew how the delays of settlement have taken place, and notes some topics of objection and answer not repeated here.
The facts before stated are all either proved by these documents, or the letters which have passed between us, or, being merely historical, are of public notoriety, excepting only my bargain with Bryan, which I believe can be proved if necessary.
PrC (CSmH); 7 p., with first and fifth pages now lacking, text of missing pages supplied from Dft (see notes 1, 7, 15, and 20 below); entirely in TJ’s hand, including one set of brackets as noted; undated, but supplied on the basis of the covering letter; faint, with illegible passages supplied in brackets from other texts as noted. Dft (MHi); entirely in TJ’s hand; undated; with abbreviations, emendations, and truncation of passages quoted from statutes and other documents; where Dft has been used to supply missing portions of PrC, truncated passages from documents are supplied in notes from the memorandum dated [after 12 Feb. 1790]. In Vol. 2:137–8, this PrC was mistakenly understood to be part of the same document as the PrC of the memorandum by TJ on this land dispute that has been assigned a date of [after 12 Feb. 1790] and was printed in Vol. 27:773-6. A somewhat variant but largely parallel version of this text, in TJ’s hand and similarly titled “The case between T. Jefferson & J. Harvie,” is in MHi and likely dates from several years later (see TJ to Harvie, 21 May 1806). In Vol. 16 that version of TJ’s statement is quoted and identified by an inferred date of [ca. July 1795]; see for example Vol. 16:84n, 93n.
TJ and Harvie first laid out the particulars of their respective claims to the disputed land, which was near Edgehill, and discussed the roles played by Thomas Mann Randolph, Sr., and James Marks, in a series of letters: TJ to Harvie of 11 Jan., 2 Nov. 1790, and 7 Apr. 1791, and Harvie to TJ, 2 Feb. 1790 and 25 Jan. 1791. For the surveyor’s plat of the land and a description of TJ’s copies of the order of council, see the letter of 11 Jan. 1790, Vol. 16:97–100. TJ’s reference to the entries for the land meant the two entries of 21 Oct. 1774 and did not include the entry of 12 Mch. 1774 described in the note to that letter to Harvie (Vol. 16:99n). The involvement of George Mason in the revision of Virginia’s land law is discussed in the Editorial Note to the Bills for Establishing a Land Office and for Adjusting and Settling Titles, printed above in this series at [8–14 January 1778], Vol. 2:133-8. The collection of laws known as the chancellor’s revisal was A Collection of All Such Public Acts of the General Assembly, and Ordinances of the Conventions of Virginia, Passed since the year 1768‥‥ Published under Inspection of the Judges of the High Court of Chancery (Richmond, 1785); see Evans, description begins Charles Evans, Clifford K. Shipton, and Roger P. Bristol, comps., American Bibliography: A Chronological Dictionary of all Books, Pamphlets and Periodical Publications Printed in the United States of America from …1639 …to …1820, Chicago and Worcester, Mass., 1903–59,14 vols. description ends No. 19351, and Vol. 2:321.
Paid into the treasury £30 composition money: in his financial memoranda under 18 Dec. 1781 TJ recorded a payment to the Virginia Land Office of £30 in paper currency. “Composition money” was a term dating from before the Revolution that referred to payments securing rights to crown or escheated land (MB description begins James A. Bear, Jr., and Lucia C. Stanton, eds., Jefferson’s Memorandum Books: Accounts, with Legal Records and Miscellany, 1767–1826, Princeton, 1997, The Papers of Thomas Jefferson, Second Series description ends , 1:277n, 516). MR Wiley was Alexander Wylie (Wily, Wyley, Wyly), a barber who supervised the transfer of official records from Williamsburg to Richmond in 1780 and, beginning in 1779, handled miscellaneous purchases and errands in Richmond for TJ (MB description begins James A. Bear, Jr., and Lucia C. Stanton, eds., Jefferson’s Memorandum Books: Accounts, with Legal Records and Miscellany, 1767–1826, Princeton, 1997, The Papers of Thomas Jefferson, Second Series description ends , 1:488–90, 507–8, 510, 513, 518; 2:836; Vol. 16:82, 388n; SJL, 14 May 1790). Harvie was register of the land office from 1780 to 1791 (Marshall, Papers description begins Herbert A. Johnson, Charles T. Cullen, Charles F. Hobson, and others, eds., The Papers of John Marshall, Chapel Hill, 1974–2006, 12 vols. description ends , 1:92). The 27 Mch. 1788 survey of the ragged string of rocks is represented in simplified form at Vol. 16:99 and is the second plat noted in Vol. 16:100n. The survey was made by Walter Leak, Anderson Bryan’s assistant, and also signed by Bryan.
He readily consented: Harvie answered TJ’s letter of 11 Jan. 1790 on 2 Feb. of that year, stating that “I mean not to have any Opinion of my own on our Respective Rights, and embrace with pleasure your proposition for a Reference” (Vol. 16:136).
Letters from TJ to Harvie of 19 Jan. and 1 Mch. 1800, two from Harvie to TJ on 30 Jan., both received on 11 Feb., and another from Harvie of 12 Feb., received on 24 Feb. 1800, are recorded in SJL but have not been found.
1. Title appears in margin of Dft, from which the text of the missing first page of the PrC has been supplied.
2. Passage continues in memorandum of [after 12 Feb. 1790]: “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.” (Vol. 27:773).
3. Preceding clause interlined in Dft.
4. Here in Dft TJ canceled “whenever it.”
5. In Dft TJ first wrote “I notified my ord. of conc. to him, and on a suggestion that,” then reworked the passage to read as above.
6. Passage continues in memorandum of [after 12 Feb. 1790]: “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.” (Vol. 27:773).
7. PrC begins after this word.
8. Word interlined in place of an illegible cancellation. Word interlined in Dft in place of “just.”
9. Bracketed text in this paragraph supplied from memorandum of [after 12 Feb. 1790] (Vol. 27:774–5).
10. Text in brackets supplied from Dft.
11. Except as otherwise noted, text in brackets in this and the next paragraph has been supplied from memorandum of [after 12 Feb. 1790] (Vol. 27:775).
12. TJ’s brackets.
13. Dft: “orders of council.”
14. Dft: “sent the Treasurer’s receipt to mr Harvey then register of the land office, with an endorsement on these very entries by the Auditor.”
15. PrC lacks page beginning in the middle of this word; text supplied from Dft. See note 20 below.
16. In Dft TJ first wrote “not sufficient for the 100th. part” before altering the passage.
17. Remainder of sentence interlined in Dft in place of “which made me more willing to accomodate him.”
18. Here in Dft TJ continued “both Marks & himself well knowing my prior right,” but canceled the passage.
19. Preceding six words interlined in Dft.
20. PrC resumes with this word.
21. Preceding seven words interlined in Dft in place of “my promise of.”
22. In Dft TJ continued: “tho’ my promise <what I had said> [went] only to cover any right Colo. R. might have, & it was now become evident enough that he had had no right at all, yet [to quiet] Colo. R. I immedly. abandoned my claim to one moiety & confirmed the sale of it to mr H. but the moiety <sold by mr Marks I still claimed & now claim>. the business in which both of us have been engaged and a mutual confidence of a just settlement whenever both shd be ready, has hitherto delayed the arbitration: as to the moiety it is now proposed to be concluded, and.” He then inserted in the margin, to follow “no right at all,” this passage: “for there is neither an entry on the surveyor’s books nor lines on the land. however to quiet Colo. R <I immedly. &c> I agreed to abandon as much as might be claimed as his own proportion. this was merely voluntary and therefore must go only to a fair fourth of the whole survey. I consider the divn made by Marks & Bryan a mere nullity. under color of ceding a fourth I should cede the whole in value that is to say give away all flesh and keep the bone to myself. but this must be understood on a fair division, and not that under color of ceding for him a moiety of a moiety. I am bound to cede the whole in order to give all the flesh to others & keep the bone to my self. if the expressions in my ltr from Phila were not strictly guarded it should be considd. from whence it was written when I had not a momt to think of my own affairs, before I was apprised too of the fraud of the surveyor in the division, that it was voluntary only binding on me in morality, but that morality cd not extend to cover a fraud. Colo. R. hd no right, therefore no right to any particular spot. all the land the [rugged] as well as the good bound equally on him.” TJ subsequently struck through both of those passages and continued in Dft with “this statement is prepared for the consideration of the arbitrators.” TJ’s “ltr from Phila” was evidently that to Harvie of 7 Apr. 1791.
23. Here in PrC TJ canceled several words beginning with “[who will].” Here in Dft he continued “who will be such persons as will need no observation [in favor of mine in the premises]” before canceling the passage.