From Thomas Smith
Carlisle [Pa.] 17th[–26] November 1785
When the Letter which you did me the honour to write to me on the 14th of July last, was brought to Carlisle, I was in Philadelphia, & did not receive it till my return in August—I could not answer it before my return from the western Courts, because I had left your Papers at Bedford, (where I leave all the Papers respecting my business in the Western Courts, which are not necessary to be brought to this Place)—they were locked up in a Private drawer of mine, and, as I was obliged to go up so soon, I did not think it proper to trust any person to bring them down.
On my return from those Courts, I was honoured with your Letter of the 10th of September, and, if I could have devoted one hour to the examination of all the Papers, I would certainly have done myself the pleasure to have written to you, before I went to Westmoreland, with the Judges of the Supreme Court; But as soon as the business of the County Court at this Place, was finished, I was obliged to follow them, & could not overtake them, till they arrived at Westmoreland: indeed the Chief Justice had been so obliging as, at my request, to postpone holding that Court, from the 24th to the 31st of October. Had I been favoured with your first letter two weeks sooner, I should have requested the Judges to have holden a Court of Nisi Prius in Washington County this season, & it is probable I might have prevailed; but it was afterwards too late, as they had made their arrangements as to the other Counties. Some Ejectments have been Tried in Westmoreland; in which the Title of the Defendants was their Improvement, made before the Plantiffs had obtained their office right, notwithstanding which, the Plaintiffs recovered—there was only one case so circumstanced in which the Jury gave a Verdict for the Defendant, which the Judges immediately declared, was contrary to Law, & that they would grant a new Trial, if applied for in Philadelphia, which will be done: In their charge to the Jury, they laid down the Law respecting improvements in opposition to office rights, so pointedly & decidedly in favour of the latter, that I believe their decision must very materially operate in your favour, so far as the Defendants claim by settlements made under the Jurisdiction of Pennyslvania—In the last Ejectment which was Tried, I had this point brought fully before the Court (having an eye to your Ejectments)—the Defendants claimed by an Improvement only—I objected to its being given in Evidence—the Court ruled that it should not, & the Plaintiff producing an order & Survey, had a Verdict the jury not going from the Bar—hea[r]ing no Evidence on the part of the Defendant—this decision will produce very important effects on the Property of that County and will, I think shake the confidence of your opponents in the goodness of their Title—I assure you, it has made me more sanguine that I was before, and will warrant me in directing my attention chiefly to your Legal Title, on the Trial, although I think it necessary to keep the other in view. permit me to make a few remarks on that Title.1
The Date of Capt. Posey’s Warrant does not appear, by the Patent, or by any Paper in my Possession, that I at present recollect.
I hope you will not think that I put you to unnecessary trouble in proving the Execution of Capt. Posey’s Bond; because although the recital of it in the Patent is evidence against Virginia, by which the Patent was granted, yet it is no evidence against any other, & your opponents claim under Pennsylvania.2
I know little more of the mode of obtaining titles to Land in Virginia than what I have learned from your Papers, & therefore some observations which I have made and may make to you, may be unnecessary. I have understood & I think I mentioned to you that the Time of the entry of the Warrant with Mr Lewis the County Surveyor, is material as it is Located & fixed to the spot from that Time only; if it be, is a certified Copy from him, proof of the Time, by the Laws of Virginia? I understand that the Defendants have informed themselves, what Time it was entered with him & are much encouraged thereby; but this is only surmised to me.
I will write to Mrs Crawford respecting his Commission; but if she cannot produce it (& it should be necessary) a Certificate of it may, I Suppose, be obtained from William & Mary College—if you can readily obtain such Certificate & without trouble, it may be of some use; but I am some what inclined to believe it is not necessary, because he was known to be an officer de facto, & that act recognized by the Colony.3
I am pleased with Mr Randolph’s arguments; but if the Proclamation exists, which takes off the restrictions in that of 1763 & extending the benefits of it to the Western Waters, I think it might obviate a specious objection, if you could obtain an authenticated Copy of it.4
The Chief Justice told me that he believes a Court of Nisi Prius will be held in Washington County in the latter end of May or beginning of June next—I asked him whether I might give you this information? he said I might—I told him that as several points of Law would arise in your Ejectments I wished to try them before him—the judges will in January make their arrangements for the Spring circuit, & Mr McKean says that if Mr Rush will cross the Mountains, he will come with him—(the difficulty is occasioned by some coolness, about rank, which subsists between the two other Judges)—at any rate, he has been so obliging, as to assure me that he will inform me, as soon as it is fixed who goes to the westward—as soon as I gain this information, I will again have the honour of writing to you by the first Conveyance—I am going up to the western County Courts in the mean Time, & if I can discover any thing new, or if any thing should occur to me, I shall beg leave to mention it. I took down the names of several Witnesses from Col. Shephard & Mr McCormick; but they could not tell me with precision what they could testify; but as the decision of the Supreme Court is so materially variant from those in the County Courts of late, respecting improvements, I do not think that your Title to those Lands will so very much depend upon their Testimony, as I once supposed—however it may still be of importance.5
In the last Letter, which you did me the honour to write to me, you signified your desire that I would bring actions of Trespass for mesne Profit against all the Defendants respectively—this may produce a good effect by convincing them that you are sensible of the injury they have done you, & determined to have every satisfaction which the Law can give you—or it may produce a bad effect, in the minds of the jury who are to try the Ejectments—their modes of thinking may lead them to believe the Defendants rather unfortunate, then blameable, and that as these double actions will well nigh ruin most of them; will not the jury be willing to lay hold of every point however trifling which may make against your title or in favour of the Defendants.
Pardon this liberty Sir, believe me these sentiments are dictated by the most pure & ardent desire to promote whatever may be for your interest. I was lately taken in at the Trial of such an action brought after a recovery in Ejectment in Westmoreland and the Jury, thinking that the Improvements which the Defendants had made were of more value to the Plaintiff then all his expenses & loss; found a verdict for the Defendant—the counsel on both sides agreed that they must find some Damages, as it was after a recovery in Ejectment—& the Court at the instance of both sides, sent them out again—they returned, & still found for the Defendant—his Counsel then agreed to confess Judgement for 1 d. Damages to save the eventual expense of a Writ of Error. Had this action been brought before the recovery in Ejectment, the Defendant might have gone into the Trial of the Title again, & the Plaintiff might have been obliged to pay the Costs.
However, I will act agreeably to your orders, unless you should countermand them before the next Court at Washington County; to which I must go, in less than 4 weeks.6
I shall endeavour to order matters respecting the appointment of the Jury in such a manner, as to be as free from objections or influence as possible—we have a new law, respecting Juries—they are drawn by Lot, out of four times the number, returned by the Sheriff, so that neither party can certainly know one of the Men who may try his cause. I will endeavour to inform myself how the Sheriff stands affected, & if I shall have the least reason to suspect that he will not be impartial I will attempt to have a special jury named by the Court, & struck by me, with the assistance of your friends. I have the Honour to be with the utmost respect Sir your most obedient humble Servant
P.S. 26 Nov. 1785 I have waited since the 17 for a Conveyance to Baltimore, & have been disappointed. I therefore send this to Philadelphia, by a gentleman in whom I can confide, who has promised to put it into the Post Office, as soon as he reaches the City.
ALS, DLC:GW; copy, NhD.
1. Thomas Smith’s handling of the suits brought by him on GW’s behalf in Washington County, Pa., to eject the settlers on GW’s Millers Run land in Pennsylvania is recounted in the editorial note, Smith to GW, 9 Feb. 1785. Although in the present letter Smith is responding to GW’s letters of both 14 July and 10 Sept. 1785, for the most part it deals with points GW raised in the letter of 14 July.
3. William Crawford first surveyed the Millers Run tract for GW in 1771, and because of some question of his right to survey any but the soldiers’ land under the proclamation, he surveyed it again in 1774 as deputy to the surveyor of Augusta, Thomas Lewis, who subsequently issued a patent to GW for the tract. See Crawford to GW, 8 May 1774.