To James Madison from Joseph Hamilton Daveiss, 4 November 1801
From Joseph Hamilton Daveiss
Frankfort. 4. Novr 1801.
Sir
My letter of the 9th of Septr. on the subject of your panther creek lands, remains unanswered; being sent by private hand, it may have miscarried, and I now state its contents.
Your father claimed 10,000 acres of land on panther creek, near Green-River—it was entered to adjoin Wm Moores1 10,000, who had entered to adjoin George Masons 8300; these three claimants had one common agent, Hancock Lee,2 in locating, and one, H. Taylor, in making their surveys. George Wilson under whom I claim, entered 30,000 acres—or rather surveyed that quantity, upon a larger entry, to include, all these three claims; cross caveats have been depending for many years with each claimant. That with Mason was removed into the District court of U. S. & now depends upon appeal before the supreme court at Washington. You have a Caveat against Wilson in the state court. The cross caveat against you is in the Circuit court for the U. S. That in which you are plaintiff has I Am satisfied been taken to the state court by your fathers agent, there to rest untill the event of the contest with Mason should be known, and with design to endeavour to obtain a different decision of the question in the state court, should the appeal eventuate unfavourably.3
I am informed, that upon the death of Mr James Madison, your father, this land has descended or been devised to you and the suit is r[ev]ived in yr name. I refer you to the papers of the case of Wilson vs Mason in the Supreme court the platt in which will shew you, with the inclosed entries,4 the true state of these claims, and that they turn on the same question & circumstances with Masons. I have therefore now to propose before the event of the case of Mason is known (& which will be known in Decer) to agree that our dispute shall end according to the decision of it. For tho, if that cause should terminate against me, I should surely be justifiable in dismissing my Caveat in the Circuit court & bringing it in the state court, for the very purpose Mr. Madison’s agent has put his there—yet, I would even to save a valuable property feel the deepest reluctance in such a measure: For if different adjudications on our land law are made by these two courts the greatest evils must attend it in this country—especially on a question of so extensive influence. Two laws of property are at once established; two hostile principles of Tenure. And supposing each court decides for the plaintiff, the powers of the two courts are at once brought to ⟨a⟩ trial, whose judgment the Register shall obey. I am entire owner, now, of this 30,000 acres in name of Wilson; I am persuaded the State court would conform to the decision of the Sup. court, but lest they should not, and at any event, to prevent a tedious and expensive controversy between us, I make this proposal. If you accept of it before the 1st of December, when the Sup. court will meet, and notify me of it, you are to consider this proposal, so accepted, as creating a stipulation absolutely obligatory on me, and entitling your counsel in Kentucky to have the final judgment entered for you, if the sup court decides in favour of Mason. If you accept, you will advise your agent & counsell here of it, that such an entry may be made for me should the judgment at Washington entitle me.
Mr John Tho. Mason was counsell for Mason, and has I suppose certified copies of the inclosed entries (which were copied at my office from authentic copies, to day,) and also of the record in above named suit. I would have sent the authentic copies but must shortly file them in court.
I spoke to Col. Barbour,5 Your fathers agent on this subject, but he requires some act of yours renovating his powers, before he will act for you—the former warrant being of course revoked by the death of his constituent.
You will soon be able to satisfy yourself whether I am correct in stating these cases to rest on the same points, and then I presume will loose no time in advising me of your decision, that I may not be remiss in preparing for trial should you resolve not to end it otherwise.
The spirit of faction is not yet laid, If I am correctly informed; nor has the fermentation yet reached its crisis.
I dont envy you, the pleasure of your office.
Express my esteem for Mrs Madison and Miss Payne, and believe me to be with great respect Sir Your most obedt
J. H. Daveiss.
RC and enclosure (DLC). RC docketed by JM as received 25 Nov. Enclosure 2 pp.; dated 9 May 1780 in the Index to the James Madison Papers (see n. 4).
1. William Moore was JM’s maternal uncle (, 1:148 n. 2).
2. On Hancock Lee, see , 15:363 n. 3.
3. Many Kentucky land claims proceedings were tangled in the extreme, the Madisons’ among them. In the spring of 1780 James Madison, Sr., had entered claims to some lands adjoining an 8,400-acre tract belonging to his friend George Mason based on a survey of the Panther Creek region done by Hancock Lee during the winter of 1779–80. In the fall of 1780, Mason’s agent adjusted the original survey by adding to it a further 8,300 acres located downstream from the original claim, but as he did so he did not alter the wording to describe the claim explicitly in the book of entries. Legal complications arose in 1784 when George Wilson, acting on information supplied by the deputy surveyor of Jefferson County, John Handley, decided to exploit the discrepancy between the entries and the surveys and, acting for himself, Christopher Greenup, and Handley, entered a claim for nearly 41,000 acres that overlapped the 8,300-acre tract in Mason’s survey as well as the area claimed by the Madisons and the Moores. In March 1785 Wilson also entered a caveat to prevent the state of Virginia from issuing Mason a grant for the 8,300-acre parcel of land. After Kentucky had become a separate state and after Mason himself had died, Mason’s heirs revived the dispute by filing a cross caveat in the U.S. district court in Kentucky in 1799. In May 1801 U.S. district court judge Harry Innes decided the case of Mason v. Wilson in favor of Mason’s heirs. At this point, Daveiss seems to have purchased Wilson’s claims and then appealed the ruling to the Supreme Court on a writ of error. Arguing before that court in August 1801, Daveiss, together with Charles Lee, maintained that Mason’s adjustment of his survey was actually a relocation, which did not carry with it the neighboring claims. In the December 1801 session Chief Justice John Marshall, speaking for the court, agreed by ruling that it had never been the intent of Virginia or Kentucky law that a survey, unsupported by proper entries, conveyed title to land and that Wilson therefore had been entitled to take advantage of Mason’s error. Since the Madison and Moore land claims were on the same footing as Mason’s disputed tract, the ruling also threatened their holdings adversely (Wilson v. Mason, 1 ; papers related to Madison and Mason land claims in Kentucky [DLC, vol. 91]; James Barbour to JM, 17 Jan. 1802; Willard R. Jillson, Old Kentucky Entries and Deeds: A Complete Index … [Louisville, Ky., 1926], pp. 244, 246, 259; Ketcham, James Madison, pp. 145–46; , 3:357–58; Robert A. Rutland, ed., The Papers of George Mason, 1725–1792 [3 vols.; Chapel Hill, N.C., 1970], 2:803–4, 3:1156–57).
4. Daveiss enclosed two pages of extracts copied from land office records to show how the respective 2,000-acre lots comprising the 10,000-acre claims of James Madison, Sr., and William Moore on Panther Creek adjoined the 8,300-acre tract included in Mason’s survey and were thus part of the larger area subsequently claimed by Wilson.
5. Daveiss probably referred to Col. James Barbour, Jr. (b. 1734), owner of a property north of Madison Court House in Virginia, who moved to Kentucky where he died in 1804 (Vi: Francis Taylor Diary, 26 Dec. 1794, 5 Jan. 1797; DAR Patriot Index, p. 34).