Observations on Majr. L'enfant's letter of Dec. 7. 1791. to the President, justifying his demolition of the house of Mr. Carrol of Duddington.
He says that ‘Mr. Carrol erected his house partly on a main street, and altogether on ground to which the public had a more immediate title than himself could claim.’ When blaming Mr. Carrol then he considers this as a street; but when justifying himself he considers it not yet as a street. For, to account for his not having pointed out to Carrol a situation where he might build, he says ‘the President had not yet sanctioned the plan of distribution for the city, nor determined if he would approve the situation of the several areas proposed to him in that plan for public use, and that I would have been highly to be blamed to have anticipated his opinion thereon.’ This latter exculpation is solid; the first without foundation. The plan of the city has been not yet definitively determined by the President. Sale to individuals or partition decide the plan as far as these sales or partitions go. A deed with the whole plan annexed, executed by the President and recorded, will ultimately fix it. But till a sale or partition, or deed, it is open to alteration. Consequently there is as yet no such thing as a street except adjacent to the lots actually sold or divided; the erection of a house in any part of the ground cannot as yet be a nuisance in law. Mr. Carrol is tenant in common of the soil, with the public, and the erection of a house by a tenant in common on the common property is no nuisance. Mr. Carrol has acted imprudently, intemperately, foolishly; but he has not acted illegally. There must be an establishment of the streets before his house can become a nuisance in the eye of the law. Therefore till that establishment neither Majr. Lenfant, nor the Commissioners would have had a right to demolish his house without his consent.
The Majr. says he had as much right to pull down a house, as to cut down a tree.
This is true, if he has received no authority to do either. But still there will be this difference. To cut down a tree or to demolish a house in the soil of another is a trespass. But the cutting a tree in this country is so slight a trespass, that a man would be thought litigious, who should prosecute it: if he prosecuted civilly, a jury would give small damages; if criminally, the judge would not inflict imprisonment, nor impose but a small fine. But the demolition of a house is so gross a trespass, that every man would prosecute it; if civilly, a jury would give great damages; if criminally, the judge would punish heavily by fine and imprisonment. In the present case, if Carrol was to bring a civil action the jury would probably punish his folly by small damages: but if he were to prosecute criminally, the judge would as probably vindicate the insult on the laws and the breach of the peace by heavy fine and imprisonment. So that if Majr. Lenfant is right in saying he had as much authority to pull down a house as to cut down a tree, still he would feel a difference in the punishment of the law.
But is he right in saying he had as much authority to pull down a house as cut down a tree? I do not know what have been the authorities given him expressly or by implication. But I can very readily conceive that the authorities which he has recieved, whether from the President or from the Commissioners, whether verbal, or written, may have gone to the demolition of trees, and not of houses. I am sure that he has received no authority either from the President or Commissioners, either expressly or by implication, to pull down houses. An order to him to mark on the ground the lines of the streets and lots, might imply an order to remove trees or small obstructions where they insuperably prevented his operations; but a person must know little of geometry, who could not, in an open feild, designate streets and lots, even where a line passed through a house, without pulling the house down.
In truth the blame on Majr. Lenfant, is for having pulled down the house of his own authority, and when he had reason to beleive he was in opposition to the sentiments of the President1: and his fault is aggravated by it's having been done to gratify private resentment against Mr. Carrol, and most palpably not because it was necessary: and the style in which he writes the justification of his act, shews that a continuation of the same resentment renders him still unable to acquiesce under the authority from which he has been reproved.
He desires a line of demarcation between his office and that of the Commissioners.
What should be this line? And who is to draw it? If we consider the matter under the act of Congress only, the President has authority only to name the Commissioners, and to approve or disapprove certain proceedings of theirs. They have the whole executive power, and stand between the President and the subordinate agents. In this view, they may employ or dismiss, order and countermand, take on themselves such parts of the execution as they please, and assign other parts to subordinate agents. Consequently, under the act of Congress their will is the line of demarcation between subordinate agents, while no such line can exist between themselves and their agents.—Under the deed from the Proprietors to the President, his powers are much more ample. I do not accurately recollect the tenor of the deed; but I am pretty sure it was such as to put much more ample power into the hands of the President, and to commit to him the whole execution of whatever is to be done under the deed. And this goes particularly to the laying out the town. So that as to this, the President is certainly authorised to draw the line of demarcation between L'enfant and the Commissioners. But I believe there is no necessity for it. As far as I have been able to judge, from conversations and consultations with the Commissioners, I think they are disposed to follow implicitly the will of the President whenever they can find it out. But Lenfant's letters do not breathe the same moderation or acquiescence: and I think it would be much safer to say to him ‘the orders of the Commissioners are your line of demarcation,’ than, by attempting to define his powers, to give him a line where he may meet with the commissioners foot to foot, and chicane and raise opposition to their orders whenever he thinks they pass his line.
I confess, that on a view of Lenfant's proceedings and letters latterly, I am thoroughly persuaded that to render him useful, his temper must be subdued; and that the only means of preventing his giving constant trouble to the President is to submit him to the unlimited controul of the Commissioners. We know the discretion and forbearance with which they will exercise it.
Dec. 11. 1791.
PrC (DLC); entirely in TJ's hand. Although this document is dated 11 Dec. 1791, entry in SJPL is under 9 Dec. 1791 and reads: “Th:J. to G.W. Observations on L'Enfant's letter.” This, together with the fact that the entry precedes that for the covering letter, which is correctly recorded under 11 Dec. 1791, suggests that TJ may have drafted the observations and then held the document for two days, possibly for the purpose of consulting Madison or perhaps in order to reflect further upon the prudence of dispatching so vigorous an opinion. A draft of L'Enfant's letter of 7 Dec. is in DLC: Digges-L'Enfant-Morgan Papers; partial text printed in Elizabeth S. Kite, L'Enfant and Washington (Baltimore, 1929), p. 89–91; see also Vol. 20: 48–50.
- TJ originally wrote “& Commissioners” after this word and then erased it.