To Thomas Smith
Mount Vernon Septr 22d 1786.
The letter which you did me the favor of writing to me from Philadelphia the 9th Ulto came duly to hand.1
A fever, of which I am but just well recovered, makes me fearful of encountering the bad roads & disagreeable accommodations between this & the Western Country at this season. Other circumstances too, rendering it inconvenient for me to be from home at this time, have combined, to set aside the Journey I had it in contemplation to make to the Court of Nisi-prius to be holden in Washington County, State of Pennsylvania, on the 23d of next month. Nor, upon a revision of the notes with which I have furnished you, do I see wherein I could add aught to them were I to be present at the Tryal. The summoning of a Jury so long before the merits of the Cause will come legally before it, is, in my opinion, very much against me; for there can be no doubt but that every indirect (if not direct) means which the Defendts & their friends can adopt will be used to impress the members who constitute it with all the circumstances favourable to their claims. However, if it is an event to be regretted, it is equally unavoidable, as it is constitutional.
There were proclamations (as I have observed upon a former occasion) and Orders of Council in this State, previous to the Revolution, which, could they have been adduced, might have subserved my cause, as much as it would have appeared from them that tho’ military rights were recognized, and warrants of survey were actually issued by the Executive previously to the occupancy of the Defendts, yet, that their settlement of the lands which were considered as appertaining to the State of Virginia was expressly contrary to a pointed proclimation, & consequently must not only have been illegal, but highly unwarrantable, as it was an invasion of private right (for the Defendts do not deny having been informed that the land was surveyed for me) as well as a contempt of publick Authority; however, the records of these proceedings are lost, as you will find by the authenticated certificate which has been heretofore sent you.
My opinion of the case, as I have mentioned in a former letter, is, that the legal title ought to be strenuously insisted upon: and that the Deed, as it was the last solemn act of the Government should be considered as conclusive evidence of the regularity of the antecedent proceedings; it being a fact well known in this Country, that by the removal of the records from Williamsburgh, whilst the Enemy were manœuvering in the state, many of them were lost or destroyed. To argue otherwise is to arraign the Conduct of the Government in the management of our internal policy; And I do not know under or by what authority the State of Pensylvania can now after having made a solemn compact with this State, by which she engages to confirm all legal & established titles, go into such an enquiry. But if notwithstanding, from the complexion of matters it should be conceived that the plea of preoccupancy is likely to have weight, I would then, as if to shew that even on that ground the Defendts stand hindmost, call evidence to prove that the land was surveyed for me before they came into the Country—That a Cabbin, if no more, (for one remained in 1784) was built on the land before they ever saw it—That Colo. Cannon had fixed himself thereon before them, but discovering traces of a regular survey, & upon enquiry, finding it was made for me, quit it, after having done some work thereon—That the Defendts were also told that the land belonged to me (whilst they were in the act of settling upon it)—and were repeatedly informed of it afterwards, and admonished by publick notices & private intimations of the hazard they ran, as I was determined (as soon as my publick duty would allow me to attend to my private concerns) to assert my right to the land. These all are indubitable facts; but where the evidences are, or by what means they can be drawn forward to prove them, are questions which I am unable to solve, unless Colo. Crawford’s letters will be admitted, & those persons whom I have named in the notes formerly sent you, will make them appear.2
As I have confided this Cause entirely to your management, I should, if Mr Ross’s abilities had not spoke so powerfully in his favour, have been perfectly well pleased at your choice of him as a Coadjutor. With talents such as you describe, I cannot but be highly satisfied therewith.3
My Friend Colo. Simm, who will do me the favor of presenting this letter to you, is called to the Western Courts in your State on some business of his own. He perfectly understands the Laws of this State—the practices of our Courts—and the principles of our Land-Office—and may be able to communicate much useful information. You may place entire confidence in him: safely trusting him with all the communications I have made to you, & with a sight of the papers if he should incline to see them.4
I am much obliged to you for the information respecting the bill of sale from Val[entin]e Crawford. At the time of my writing to you on this business I was quite ignorant of the Agency you had in the matter on behalf of another, the declaration of which will, I hope, be an apology for my application to you in a case where you were Council for another. I have requested the favor of Colo. Simm to do, or cause to be done what shall appear just & proper in this case—To secure my debt is all the inducement I have for resorting to the Bill of Sale.5
I ought, my good Sir, to have recollected the trouble you have had in this Business ’ere this, and I intended to have compensated it out of the funds I had in that Country; but in truth, they have been very unproductive—however, if you will be so obliging as to inform me by Colo. Simm with what sum I can equal your expectations I will resort to other means to lodge it in Philadelphia for you. With very great esteem & regard I am Sir Yr Most Obedt Hble Servt
LS, in Tobias Lear’s hand, NhD; LB, DLC:GW.
1. Letter not found.
2. See Thomas Smith to GW, 9 Feb. 1785, and notes, particularly the editorial note; but see also GW to Smith, 14 July, 10 Sept., 7 Dec. 1785, 8 May, 28 July 1786, and Smith to GW, 17 Nov. 1785, 7 Feb. 1786. Lear wrote “personos” for “persons.”
3. James Ross assisted Smith at the trial in October 1786, and in 1788 GW paid him £50 for his services, the same fee that he paid Smith (Ledger B description begins Manuscript Ledger Book 2, 1772-93, in George Washington Papers, Library of Congress. description ends , 259).