I have examined the Memorial & accompanying papers of Samuel Davidson, which you were pleased to transmit to me some time since for my opinion; & have received from Mr. Davidson such explanation & elucidation of the subject, as he thought proper to give.

I understand his statement & cause of complaint to be this: That a plan of the city of Washington designd by Major L’Enfant in 1791 (& which is hereunto annexed & marked No. 2) ought, so far as it regards the presidents square and adjoining lots to be considered as the plan of the City: That by successive acts and declarations of Pr. Washington & those acting under him this plan was sanctioned & sales partially made under that sanction: That in 1792 Majr. Ellicot under the authority of Pr. Washington altered the plan designed by L’Enfant materially to the prejudice of Davidson & of the City, by omitting to include as building lots 4 several parcels of ground painted yellow in the annexed plan of L’Enfant, lying north of the Presidents house & designated as follows: one parcel joining square 167 on the east; one other joining square 221 on the west; and two others lying on each side of 16th. street, and south of squares 186 and 200: And that thereby he is deprived of a moiety of this ground, to which he would have been intitled under the plan of L’Enfant, & under the deed of trust made by him to the Trustees of the City.

Opinion

Two questions naturally occur in the examination of this case,

1st. What powers did the president possess to establish the plan of the City? &

2ndy. How & when, has he exercised these powers?

1st. The power of the President to establish the plan of the city, is derived solely from the deeds of the proprietors to the trustees. These require the trustees to convey to the Commissioners, “such streets, squares, parcels & lots as the president shall deem proper for the use of the U. States.” No time being limited within which this power should be executed by him or under his authority, it follows, that it rested in his discretion to execute it from time to time, as circumstances might require. The manner in which the power should be exercised, being also undefined, its execution is to be sought for in the declarations, acts or instruments by which it is manifested. When such execution is clearly manifested by any such act, it is I conceive a compleat exercise of his power so far as that act extends, is irrevocable by himself, & binding on his Successors.

This leads to an examination of the 2nd. point, how far & in what manner, this power has been exercised.

In October 1791 Pr. Washington informs Congress, that the District was located & a city laid out; the plan of which should be placed before them. In December following, he communicated to them the plan of L’Enfant, & after time given for its inspection, he withdrew it. This communication of the plan, was intended merely as a matter of information, and to shew in what state the business then was. All his subsequent acts & declarations conclusively prove that this plan had not then received his sanction.

Major L’Enfant having been dismissed, Major Ellicot was in 1792 employed to prepare a plan, which he accordingly did: And altho’ the ground work of this plan was the design of L’Enfant, yet Pr. Washington declares, that many alterations deemed essential were made in it with his approbation; particularly in the public squares; which except those of the Capitol & residents house were struck out of L’Enfants design, & were left for future determination. This plan thus compleated was sent to Philadelphia to be engraved, was accordingly engraved, was promulged throughout the U. States, & to use the expressions of Prest. Washington, was thereby intended to receive “its final & regulating Stamp.”

In October 1792, a sale of lots took place, at which this engraved plan was exhibited. At this sale a division was made between the Commrs & Mr. Davidson, & squares 167 & 186 were assigned to him, & squares 200 & 221 to the U.States. Mr. Davidson became the purchaser of 221, and 200 was sold to others; and he received payment at the rate of £25 ⅌ acre, in conformity to the deed of trust, for the residue of the Presidents square.

In February 1797 the president in answer to a letter written to him by the Commrs, enclosing a Memorial from Mr. Davidson upon the subject of complaint now under consideration explicitly declares, that the transmission of L’Enfants plan to Congress was not considered by him as an adoption of it: that he considered it as then remaining under his controul: that many errors were afterwards discovered in it & corrected: that he had so often expressed his unwillingness to depart from the engraved plan in every instance where it could be avoided, that he hoped no repetition of this sort would have been made by any of the proprietors.

In March 1797 Pr. Washington executes an instrument of writing, in which he directs the trustees to convey to the Commrs all the streets as delineated in a plan said to be annexed. This plan by accident was not annexed, but is said by the Commrs to have been annexed & sanctioned by President Adams in 1798.

Nothing it appears to me can be more conclusive to shew the intention of Pr. Washington than the foregoing facts, that so far from omitting by mistake to establish as building Lots the ground in controversy exhibited in L’Enfants plan, he evidently intended to exclude those lots from the engraved plan. That Mr. Davidson did not himself consider this portion of L’Enfants plan to have been retained, much less sanctioned by Pr. Washington, is manifested by a written contract entered into between him and the Commrs on the 9. day of January 1794, in which it is agreed, “that if any new square or squares for buildings or other appropriations, except a public square, is hereafter made on his said Davidsons part of the Presidents square, bounded on the west by 17th. street west, on the north by H street north, on the east by 15th. street west, and on the South by David Burnes’ line (except the two squares 167 & 221 already established & laid off) that then the sd. Davidson is & shall be intitled to his dividend of such squares or other appropriation agreeably to his deed in trust.”

I am therefore of opinion on this part of Mr. Davidsons memorial, that the plan of L’Enfant so far as respects the lots which he now claims as building lots, were never established as such by Pr. Washington: That altho they appeared in the plan of L’Enfant yet they were struck out of the plan which was afterwards drawn by Majr. Ellicot, engraved by order of the President, & declared by his successive acts to be the plan of the City which he would not depart from in any instance where it could be avoided.—So compleatly have the powers vested in President Washington been exercised in settling definitively the plan of the City so far at least as regards the portion of it now under consideration, that in my opinion, there rests no where a power to alter it. The proprietors of the soil had a right to annex such conditions & limitations to their Grants, as they judged proper. The president who was their Trustee, has executed so far as regards the present question, his Trust. He has determined the plan. He had the exclusive power to do so. He has compleatly expended that power, & it is unalterable not only by his successor, but by Congress itself.

I cannot discern any just foundation for the claim which Mr. Davidson sets up to a portion of the ground allotted for the War Office.—It appears by a certificate from the Commrs dated the 29. of January 1794, that he has actually recd. from them at the rate of £25 ⅌ acre for the Presidents square, including the very ground in which he now claims an interest.

The memorial & accompanying papers are all returned, & I have the honor to be, most respectfully

Sir Your Ob. Sert.