« AnteriorContinuar »
who has begun later in life, and is fully aware of the "That if any person presume to buy any land of the importance of uniting discipline of mind to acquired natives, within the limits of this province and territories, knowledge; and for him who has begun earlier life, it without leave from the proprietaries thereof, every such will correct the error of having taken upon himself the bargain or purchase shall be void and of no effect. To duties of an important profession proportionably too this act there was a supplement, passed February 14th, young. It may also be dedicated with the greatest ad. 1729-30, (chap. 312.) vantage to acquiring modes of business, by attendance By an act passed February 3d, 1768, (chap. 570,) af. upon the courts, and observation of the course pursued ter the preamble in these words, “Whereas many disin the conduct of causes by those to whom practice has orderly people, in violation of his majesty's proclama. given skill—to those who know the importance of ex: tion, have presumed to settle upon lands not yet purperience and habit in the examination of witnesses, and chased from the Indians, to their damage and great disthe danger to be apprehended from the answer of an satisfaction, which may be attended with dangerous and indiscreet question, I need not urge this suggestion- fatal consequences to the peace and safety of this prothey are well aware, that to the practitioner a want of vince,” it was enacted, that if any person settled on the business habits is a defect for which no learning can unpurchased lands, neglected or refused to remove compensate, no talents atone,
from the same within thirty days after they were requirLet me impress upon you the necessity, after you ed so to do, by persons to be appointed for that purbecome practitioners,of bestowing the utmost care upon pose by the governor, or by his proclamation, or being the pleadings and papers which you prepare. No one so removed, should return to such settlement, or to the can hope to use with effect his knowledge of the prin settlement of any other person, with or without a family, ciples of law, if he be unskilful or slovenly in the forms to remain and settle on such lands, or if any person, af. of it-the only medium through which its principles ter such notice, resided and settled ou such lands, evecan be administered. Allow me also to say, that skill ry such person, so neglecting or refusing to remove, or in this branch of your profession is not only one of the returning to settle as aforesaid, or that should settle surest tests of general qualification in it; but that the after the requisition or notice aforesaid, being legally saving of time which it ensures, can only be fully convicted, was to be punished with death without beknown by those whose attendance upon the courts nefit of clergy; But this act was not to extend to pershows them the result of a different course of proceed. sons then, or thereafter settled on the main roads, or ing; while at the same time the satisfaction and freedom communications, leading through the province to Fort from anxiety, which it procures, cannot be fully appre- Pitt, with the approbation and permission of the comciated by those who have never endured the reproaches mander in chief of his majesty's forces, &c. or in the of a client, whose judgment has been arrested or re- neighborhood of Fort Pitt, under such permission, or versed, after an arduous and expensive trial on the to a settlement made by George Croghan, deputy sumerits of his cause, because his counsel, notwithstanding perintendant of Indian affairs, and Sir William Johnson, all the assistance to be derived from the many excellent on the Ohio, above the said fort. practical works upon pleading, to which he might have And if any person or persons, singly or in companies, had recourse, negligently prepared an insufficient de presumed to enter on any such unpurchased lands, to claration,
make surveys thereof, mark, or cut down trees thereon, Before I conclude, let me ask of you, Gentlemen of and should be convicted thereof, was, or were to be the Law Academy, a strict attendance upon the duties punished by a fine of fifty pounds, and three months' of the academy during the ensuing session. As prepar, imprisonment. atory exercises for a state of future professional exer- This act was limited to one year, and to the end of tion, its duties, pursued with fidelity and constancy, are the next session of assembly. On the 17th of February, to you of the utmost importance. They do not, it is 1768, an act was passed, appropriating a sum of mo true, assist directly in giving that facility of applying ney to be applied to removing the discontent of the Inyour knowledge to the conduct of a nisi prius cause dians, &c. (char. 571.) which actual experience will hereafter supply; but they And on the 18th of February, 1769, an act was passwill enable you to ascertain and estimate your own ed, (chap. 587) with a similar preamble, to punish by progress in acquiring the principles of law; and by con. a fine of five hundred pounds, and twelve months' imvincing you of the necessity of industry, order, and prisonment, any person or persons, who singly, or in comparison in the preparation of your arguments upon companies, should presume to settle upon any lands the question to be discussed, lay the foundation of within the boundaries of this province, not purchased habits and acquirements the best securities of future of the Indians, or who should make, or cause any sureminence and success.
vey to be made of any part thereof, or mark, or cut down any trees thereon, with design to settle or appro
priate the same to his own, or to the use of any other LAND TITLES.
person, &c. (Galloway's edition, page 355.) (Continued from page 312.)
This act, being without limitation, expired only on
the extinguishment of all the Indian titles. Having thus given a connected view of the Indian The reason of passing laws so highly penal, will be purchases, and some notices of the discontent occasion. found in the votes of the assembly, vol. 6th, p. 7-8. ed by encroachments on the Indian lands; it is material The intruders who had been removed, had returned to to state the acts of the government, legislative and exe. their settlements. By the communications from Sir cutive, to restrain these illegal proceedings, and restore William Johnson, and General Gage, it appeared that harmony between the province and the Indian tribes; there were apprehensions of an immediate rupture with and finally to show their operation upon a certain class the Indians; proclamations had proved to be ineffectaof land titles.
al, and it was earnestly required that more effectual Tlie proprietors professed not to sell any lands be provisions should be made for that purpose, “before yond the boundaries of the purchases. If surveys were it should be too late to prevent the devastations, cruelmade over them without their consent, they were illegal ties, and effusion of blood, attendant on an Indian war, and void. 'To bave departed from this principle would which might be experienced soon, unless active meahave occasioned wars of a most fatal kind to the inter. sures were adopted, for the redress of the grievances ests of the province; and would have been a violation of which the Indians complained.” of the most solemn engagements with the natives. The Indeed, so desirous was the government to prevent line of duty was therefore plain, and every moral and any cause of uneasiness with the Indians, that in April, political obligation, commanded them to pursue it. 1760, an act was passed (chap. 456, vol. 1, p. 227, ?
By an act passed in 1700, (chap. 20,) it was enacted, inflicting the penalty of fifty pounds,and twelve months
imprisonment, to hunt, or follow wild beasts, &c. with carora path, o Path valley, and burnt eleven cabins; out the limits of the lands purchased of the Indians by at Aughwick, they burnt the cabin of one Carlton, and the proprietaries.
another unfinished one, and three were burnt in the big We have already given some account of the complaint cove. The settlers, who were numerous, were recogof the Indians against the encroachments on their lands nized to appear at the following court. The report is at Tulpehocken, on the lands on the Juniata, over the long, but interesting, and may be readily referred to in Kittatinny hills and in the forks of Delaware, and the the printed journals. Every public document thus inmanner by which they were quieted. All the different contestibly proves the invalidity of settlements and surconferences and treaties with the natives are fairly en veys on the unpurchased territory. See minutes of tered in the council books, to which access has been council, Book M, p. 58 to 71. had to establish facts; this part of the note will there. April 18th, 1752, commission and license to Andrew fore be closed with a brief view of such acts on the part Montour, to settle and reside in any place he should of the executive as have been deemed material. judge convenient and central, and to preserve the lands
A proclamation was issued July 18th, 1749, in conse- from being settled by others, and warn all off who had quence of the complaint of the Senecas, previous to presumed to go there; and to report the names of such the purchase of 1749, commanding all persons seated as settled there, that they might be prosecuted. Ibid. on lands not purchased of the Indians, lying westward | 151. of the blue hills, to remove therefrom; reciting, among The proceedings at Albany in 1754, have been alother things, “That these persons had neither license ready transiently mentioned. One of the great objects from the proprietaries, nor color of title to said lands, of that treaty was to remove the discontents, and and to permit them to stay there, would not only be a strengthen and confirm the wavering fidelity of the Six breach of the public faith given to the Six Nations, but Nations; and, as is expressed by the lords of trade, "at may occasion dangerous quarrels with them, and be the so critical a conjuncture, to put them upon their guard cause of much bloodshed.” Council books, M.
30. against any attempts which may be made to withdraw At the treaty which ended in the purchase of 1749, them from his majesty's interest; and that nothing may the speaker, Canassatego, mentions that he had seen be wanting to convince the Indians of the sincerity of the papers, (proclamations,) ordering the people to our intentions, you will do well to examine into the remove in consequence of the complaints made by the complaints they have made of being defrauded of their Senecas, and thanked the governor for taking notice of lands, to take all proper and legal methods to redress them, and taking measures to turn them off; but, said their complaints, and to gratify them by reasonable he, we are apprehensive that no better effects will fol- purchases, or in such other matter, as you shall find low those, than former ones of the same nature; if not, most proper and agreeable to them, for such lands as we must insist on it, that as this is on the hunting have been unwarrantably taken from them, or for such ground of our cousins, the Nanticokes and other Indi. other as they may have a desire to dispose of.” Ibid. ans, living on the waters of the Juniata, you use more 341. vigorous measures, and forcibly remove them. We The proceedings of this treaty enter deeply into the must not be deprived of our hunting country; and in provincial history of this country, and but a small part deed it will be an hurt to you, for all we kill goes to of it is applicable to the subject of this note. The you, and you have the profit of all the skins. We editor cannot, however, avoid remarking, that there therefore repeat our earnest intreaties, that they all may may be traced, in considerable detail, the artful meabe immediately made to go away with their effects, sures of persons pretending claims under Connecticut that this country may be entirely left vacant, ibid. p. to lands within the charter bounds of Pennsylvania, and 36. This was promised to be done; and some kind of their clandestine proceedings in obtaining a deed from force became necessary; which will produce to view a certain Indians for the Susquehanna lands, after the transaction ever memorable in the land history of Penn- sale to Pennsylvania, and a full view, exhibited by the sylvania.
proprietary commissioners to them, at their own request, On the 25th of May, 1750, governor Hamilton in all the original deeds; the cause of infinite trouble and formed the council, that Mr. Peters the secretary, and expense, the effects of which are yet painfully experiMr. Weiser, the Indian Interpreter, were then in Cum enced. At this treaty, also, a plan of union among the berland county, in order to take proper measures with colonies, was drawn up and adopted, to be laid before the magistrates, to remove the settlers over the hills, the respective colonies, on principles which have since who had presumed to stay tiere, notwithstanding liis more extensively and beneficially been carried into efproclamation; and laid before them the minutes of a fect by the constitution of the United States. conference held at Mr. Croghan's, in Pennsborough Proclamations for the removal of certain settlers at township, as well as with Mr. Montour, as with some Cushietunk on Delaware, February 28th, 1761, council Shamokin and Conestogoe Indians. The Indians ex- books, S, p. 85—and September 16th, 1761, ib. 179— pressed themselves pleased, to see them on that occa and June 20, 1763, ib. 387. sion; and as the council at Onondago had this matter The royal proclamation of 7th October, 1763, exexceedingly at heart, they desired to accompany them; pressly prohibited any settlements on lands unpurchasbut, said they, notwithstanding the care of the governor, ed from the Indians, and commanded such settlers forthwe are afraid that this may prove like many former at. with to remove. Ib. p. 431. tempts; the people will be put off now, and come next Proclamation commanding settlers on unpurchased year again; and if so, the six Nations will no longer | Indian lands immediately to evacuate and abandon bear it, but do themselves justice. Then follows the them. Council books, T, p. 121. Dated September report of Mr. Peters, entered at large, and also printed 23d, 1766. in the votes of assembly, vol. 4, p. 137. By which it On the 24th of February, 1768, a proclamation was appears, that on the 22d of May they proceeded to a issued by governor John Penn, which, after reciting place on Big Juniata, about twenty five miles from its the act of February 3d, 1768, (supra) proceeds thus. mouth, where there were five cabins, or log houses, one “In pursuance thereof, of the said act, i have thought possessed by William White, another by George Ca proper, by the advice of the council, to issue this may hoon, the others by men of the names of Hiddleston, proclamation, hereby giving notice to all and every such Galloway, and Lycon. These men, except Lycon, person and persons who are setiled upon any lands were convicted by the magistrates upon view, in pur- within the boundaries of this province, not purchased suance of the act of February 14th, 1729—30, (chap. of the Indians, by the proprietaries thereof, (except as 312,) and the cabins were burnt. A number of cabins in the said act is excepted,) to remove themselves and were also burut at Sherman's creek, and Little Juniata. their families, off and from the said lands, on or before On the thirtieth of May, they proceeded into the Tus. the first day of May next ensuing. And I do hereby
strictly charge and command such person and persons, down trees with design to settle, or appropriate such under the pains and penalties by the said act imposed, lands, incur a penalty of £500, and twelve months' im. that they do not, on any pretence whatever, remain or prisonment. It cannot be possible, that such daring continue on the said lands, longer than thirty days after infringers of the laws,could gain any tiile by'unauthorized the said first day of May next.” Council books, T, acts of trespass, against the solemn declared will of the
community? The next matter to be considered is, how far judicial It must be admitted, that the lords of the soil had the decision has strengthened and supported the principles exclusive right of disposing of their lands in their own apparent in all the foregoing proceedings.
mode. Immediately after the Indian treaty at Fort In Plumsted's lessee v. Rudebagh, Westmoreland, Stanwix, was closed, on the 4th November, 1768, the May 1795, before M'Kean, C. J. and Yeates, J. MSS. people were publicly notified, that improvements on Reports. Plaintiff claimed under a special order of the newly purchased lands should give thein no advan. survey to D. Franks, on the 1st of April, 1769. Sur- tage whatever; and the same information was given on veyed in June, 1769, and followed by patent in Febru- the opening of the Land Office. It cannot therefore ary, 1787.
be doubted, but that to obtain a title to the lands lately The defendant offered to prove, that his father, sold by the natives, it was absolutely necessary to apply Christopher Rudebagh, settled on these lands in 1761, to the Land Office in the usual and accustomed method. before the Indian purchase, in consequence of a milita- Such have been the uniform decisions of courts of ry permit from colonel Boquet, which he alledged was justice, in which we fully acquiesce. To establish a lost by the casualty of fire; but that his uninterrupted contrary doctrine, would introduce insecurity of properpossession until his death would be presumptive evi. ty, and every species of mischief. The testimony ofdence thereof, and that he had made considerable im- fered is therefore overruled. provements thereon. (Defendant had obtained a war- Defendint claimed under an application of 3d of rant for the land in December, 1784.)
, 1769, a survey and patent. The plaintiff suf. This evidence was excepted to, and overruled. fered a nonsuit.
By the Court. How can the parol evidence affect the And, in Drinker's lessee, v. Hunter, Northum, present question of right? In 1761, the soil belonged berland, October, 1796, before the same judges. to the Aborigines. Neither the act of assembly, nor the (Mss. Reports.) The court after argument, declared proclamation of 1768,gave the settler before the Indian that no settlement on, or improvement of lands out of purchase any title to the lands. By the act it was made the limits of the Indian purchases, after the law of highly penal either to make other settlements on the 3d of February, 1768, gave any pretensions of preIndian lands, or not to remove from those already emption to the parties making them, or shadow of title, made.
nor would the court suffer evidence of such settlements On the opening of the Land Office,on the 3d of April, or improvements to go to the jury. 1769, it was declared " That those who had settled And in a still stonger case, at the same court, (MSS. plantations, especially those who had settled by permis. Reports,) in the lessee of Peter Weiser, v. Samuel sion of the commanding officers of the westward, should Moody. The plaintiff claimed under a patent dated 7th have a preference.”_ What does this preference mean? of July, 1755, issued to Conrad Weiser, his grandfather, Does it not suppose that an application should be made in consideration of his services, as interpreter to the by such settlers, to the Land Office, on 30 April, 1769, Six Nation Indians, and of £5. It recited a warrant or in a reasonable time, afterwards, for this favour, in dated 21st of January, 1755, (which was not shewn in order to secure their possessions? Neither old Rude evidence,) and a survey thereon, of 305 acres, 36 perchbagh, nor his son, applied for any supposed preference es, and allowance made on the 9th of June, 1755. of these lands until December, 1784, above fifteen years The warrant issued in consequence of the special diafter the commencement of the plaintiff's title; and this rections of the late proprietaries, dated the same day: will not be pretended to be in due and convenient time. It was an order in favour of Conrad Weiser and Richard To introduce witnesses to prove these improvements Peters, for 4000 acres, in any part of the new purchase would, in our idea, be irrelevant to the point of right, lately made of the Indians; and the deputation from after such great negligence. Such a measure would Nicholas Scull, the Surveyor General, to Samuel Wei. make the titles of lands, which should be permanent ser, was to survey for his father,a tract on Susquebanna, and fixed, to depend on parol evidence, and openi a a small distance above the tract lately confirmed to him. wide door to perjury.--Verdict for plaintiff.
This tract lay two miles from the land in question. So, in the lessee, of David Sherer v. Thomas M'. Nothing appeared on the face of the survey, or any Farland, Westmoreland, May 1797, before Yeates and of the papers produced by the plaintiff, which could Smith, Justices, MSS. Reports. The plaintiff claimed have denoted, that the lands in controversy lay out of under a warrant for 200 acres of land, including an im. the then Indian purchase, which was admitted to be provement, on the waters of Sewickly, &c. dated 24th the case. of June 1785,and a deed poll of the improvement from The defendant claimed under an application dated John Loydick to William Mount,dated i1th of January, 24th of May, 1769, after the treaty at Fort Stanwis, 1775, and another deed from Mount to Sherer, Gated descriptive of the disputed grounds, and a survey made 21st January, 1778, and he offered to prove, that one thereon, on the 23d of August, 1769. Abraham Leasure made a considerable improvement on The court declared their opinion to the jury, that if these lands in 1768 and 1769, before the opening of the the late proprietaries, or their officers, knew that the Land Office, and that John Loydick derived title under lands surveyed for Conrad Weiser, lay out of the then him. This evidence was objected to.
Indian purchases, and granted them under full knowBy the Court.-We are no enemies to bona fide im. ledge thereof, the patent would enure for the benefit provements, restricted without rational limits; but these of the patentee, when the lands came afterwards to were never deemed to extend beyond the lands pur- be purchased of the Indians; and the proprietaries chased from the Indians. Such a system would be wild, could not pass the title to a stranger, It might be comas well as highly impolitic, and would tend to deluge pared to a person's selling lands without title, and af. the country in blood, by provoking the savage nations to terwards obtaining a right thereto, where the vendor hostilities.
would hold in trust for the vendee. Under the law of 3d of February, 1768, all persons The proprietaries enjoyed a grant from Charles II, were interdicted from settling on the Indian lands, un to their ancestor Williain Penn; but they did not rely der the highest forfeiture known in society; and by solely thereon. They bought the lands from the naan act of 18th of February, 1769, persons making such tives, and gave them valuable considerations therefor. settlements, or making surveys, or making, or cutting / Herein they evinced a strong sense of moral honesty, as
well as sound extended policy. It cannot, therefore, permit ever existed. But if this had been shewn, it was be presumed that the proprietary officers knew the incumbent on the party to obtain an office.right after lands surveyed to Conrad Weiser, to be without the the opening of the Land Office on the third of April, limits of their purchases. It would form an exception 1769, or in a reasonable time afterwards; and no case to their uniform established practice, and ought to be has yet gone further than by extending that time to the clearly shewn. The warrant in all probability, pursued month of July following: Ilere the warrant was not the terms of the special order, and was for lands“ in obtained till '1784, and the military permit had, long some part of the new purchase.” The order to Samuel before, lost its preference. As to the consent of Hayes Weiser, to make the appropriation, called for lands a 10 a line, it can have no effect, unless he was authorized small distance from another tract, which was confessed to settle boundaries. The evidence was over-ruled, and ly within the purchase. If other words were used in verdict for plaintiff. the warrant, it ought to be shewn; and its absence in. Before we procerd to the general subject of the Land duces a presumption, that if produced, it would operate Office, it is proper to bring into view the public trans. against the party. No mountains or waters are to be actions respecting boundaries with the adjoining states: seen on the survey, from whence it might be inferred, With respect to the state of New Jersy, there could that the lands designated thereby, were out of the Indian be no controversy as to the general boundary of the purchase. If the king is deceived in his grant, it will river Delaware, but the jurisdiction in and over that be avoided. Any contract or deed will be visited by river, and the islands therein, became the subject of allegatio falsi, sive suppressio veri. The plaintiff suf. compromise. fered a nonsuit.
An agreement was accordingly entered into by the This principle is fully recognized in Kyle's lessee v. two states, by means of commissioners, on the 26th of White. Both plaintiff and defendant had settled on the April, 1783, and ratified by act of assembly, passed 20th Indian land, on Juniata, previous to the purchase of of September, 1783, (chap. 1024,) all which may be 1754. Neither of them, says the chief justice, can de. seen at large in this volume, ante. page 77, and need rive title from the date of their improvements, because not be repeated here; see also an act annexing the dif. they were made against law, on lands not purchased ferent islands in the Delaware allotted to this state, to of the Indians. 1 Binney, 248. This case will be again the jurisdiction of the adjoining counties, 26th of Sep. cited for other purposes.
tember, 1786, (post. chap. 1234.) As settlements under military permits are excepted With respect to New York, commissioners were apby the act of February 30, 1768, and the proclamation pointed, in pursuance of an act passed 31st of March, of the 24th of the same month, it is proper that class of 1785, (chap. 1143,) to join with commissioners on the cases should be considered here. During the Indian part of the s'ate of New York, to ascertain the northern warfare, it was necessary for the accommodation of the boundary of this state, from the river Delaware, westthe armies on the line of their march, that such settle- ward, to the northwest corner of Pennsylvania. This ments should be encouraged in the wilderness. And it duty was executed, and the line run and marked, which was reasonable, that persons who by such permission, had line was ratified and confirmed by an act passed Sepsettled plantations, at the risque of their lives, for pub- tember 29th, 1789, (post. chap. 1446,) which, as it lic accommodation,(throwing aside all motives of private may be seen at large in this volume, need not be re. interest, which, no doubt, had their influence,) should peated in this note. By an act passed 27th of March, have the preference, when the office was open for the 1790, (chap. 1489,) three hundred pounds were granted sale of the lands. Such preference was accordingly to Reading Howell, for delineating on his map all the given.
lines of this state, as established by law, or otherwise In Blaine's lessee o. Crawford, Alleghany, May, 1793, fixed and ascertained. before M'Kean, C. J. and Yates, J. (MSS. Reports.) The draughts of the Delaware, and the boundary line It is recognized as a principle, that a military permit to between this state, and the state of New York,returned settle and improve lands, is not to be regarded, unless by the respective commissioners, are deposited in the followed by a settlement and improvement.
office of the secretary of the commonwealth. In the lessee of Todd, v. Ackerman, Westmoreland, A considerable part of the lands now within the ju. blay, 1793, before M'Kean, C. J. and Yeates J. (MSS. risdiction and boundaries of Pennsylvania was claimed Reports.) A question was raised, whether a person to be within the dominion of Virginia, and was possess. claiming under a military permit, did not lose his pre ed by rights under that colony. It was determined in ference, by not entering his application on the third of 1754, to build a fort, to prevent the encroachments of April, 1769. On the single abstract point, it was held, the French, at the Fork of Monongahela, where "that a settler under permission of a commanding Pittsburg now stands. And to encourage the enlistment officer, to the westward, did not lose his preference by of troops, the following proclamation was issued by omitting to apply to the Land Office on the third of governor Dinwiddie, on the 19th of February, 1754: April, 1769." But how early such application ought to “ Whereas it is determined, that a fort be immediately have been made, was not then decided. It must be in built on the river Ohio, at the fork of Monongialo, to a reasonable time, as mentioned above in Plumsted and oppose any further encroachments, or hostile attempts Rudebagh.
of the French, and the Indians in their interest, and for But, in the lessee of Bernard Gratz v. Patrick Camp- the security and protection of his majestys's subjects in bell. Westmoreland, November, 1800, before Yeates this colony, and as it absolutely necessary, that a suffi. and Smith, Justices, (MSS. Reports.) The plaintiff cient force should be raised to erect and support the claimed a moiety of the land under a special order to same: For an encouragement to all who shall voluntarily David Franks, of the 1st of April, 1769, a survey there. enter into the said service, I do hereby notify and proon made 1st June, 1769, and a conveyance from Frunks. mise, by and with the advice and consent of his majes
The defendant offered to shew, that lie made a settle- ty's council of this coloriy, that over and above their ment on these lands in 1761, before the Indian purchase, pay, two hundred thousand acres of his majesty, the under a military permit, which he asserted to have king of Great Britain's lands, on the east sile of the been lost; and that Christopher Hayes, the agent of the river Ohio, within his dominion, (one hundred thousand said Franks, had agreed to the running of a line be acres whereof to be contiguous to the said fort; and tween him and his principal. It was admitted, that he the other one hundred thousand acres to be on or near took out no office-right until 1784.
the river Ohio,) shall be laid off and granted to such But the Court said, that such evidence, in a case so persons, who by their voluntary engagement, and good circumstancel, would introduce the utmost confusion, behaviour, in the said service, shall deserve the same. and impair former determinations. Here it is not at. And I further promise, that the said lands shall be ditempted to shew any parol evidence, that such a military vided amongst them immedia:ely after the performance VOL. XII.
of the said service, in a proportion due to their respec- follows: to wit, “That the line commonly called Mason tive merit, as shall be represented to me by their and Dixon's line, be extended due west, five degrees officers, and held and enjoyed by them without paying of longitude to be computed from the river Delaware, any rights, and also free from the payment of quit for the southern boundary of Pennsylvania, and that a rents, for the term of fifteen years. And I do appoint meridian drawn from the western extremity thereof, to this proclamation to be read and published at the court the northern limits of the said states respectively, be the house, churches and chapels, in each county within this western boundary of Pennsylvania, forever, on condicolony,and that the sheriffs take care the same be done tion that the private property and rights of all persons, accordingly.”
acquired under, founded on, or recognized by, the laws As this proclamation was transmitted by governor of either country, previous to the date thereof, be sa. Dinwiddie to governor Hamilton, the latter gentleman ved and confirmed to them, although they should be wrote thus, in answer, on the 13th of March, 1754. found to fall within the other, and that in decision of
“ The invasions, &c. having engaged me to inquire disputes thereon, preference shall be given to the elder, very particularly into the bounds and extent of this or prior right, which ever of the said states the same province westwardly; I have from thence the greatest shall have been acquired under, such persons paying, reason to believe that the fort and lands (intended to be within whose boundary their land shall be included, the granted,) are really within the limits of Pennsylvania. same purchase or consideration money, which would In duty to my constituents, therefore, I cannot but re have been due from them to the state under which mind
you of what I had the honor to write to you some they claimed the right, &c. This agreement, and con. time ago, upon this subject; and transcribe for your diiions annexed, had been adopted by resolution of the consideration the following extracts from two letters of legislature of Pennsylvania, September, 220, 1780, the honourable Thomas Penn, in relation to this mat. Hence has arisen in Pennsylvania, a particular, local, ter.
species of land titles, out of the common terms and 'I desire you will enter into any reasonable measures usages, of the Land office, and laws respecting it. to assist the governor of Virginia to build a fort there, To connect the subject, and as much as possible, to to wit, at the Ohio, taking some acknowledgment from avoid confusion in so long a note, the cases decided on him, that this settlement shall not be made use of to this part of the general subject, will be here giren. prejudice our right to that country, at the same time In Smith's lessee v. Bazil Brown, Fayette, May, 1795, you gave him assurance the settlers shall enjoy the lands before M'Kean, C. J. and Yeates, J. it was held—1 hat they settle bona fide, on the common quit-rent, &c. a prior improvement under Pennsylvania, shall prevail March 9th, 1752.'
against a Virginia certificate, under the compact be'I hope you will, as I wrote you on the 9th of March, tween the two states. The custom of granting the acquaint the governor of Virginia that we consent to lands to real improvers, is recognised by our laws. this, (that is, to the building of a fort at Ohio,) without Between claimants under Virginia, the certificate of the prejudice to our right to the land, in case it should be commissioners is conclusive, but not where one of the found to lie within our province, to be granted to the parties claims under Pennsylvania. There can be no bona fide settlers on the same rent and conditions as doubt, but that on every principle of moral and politi. they are to have it from Virginia. July 13th, 1752.' cal obligation, the compact between the two states should
“ As Mr. Penn's expectations herein appear to me be held inviolate. MSS. Reports. extremely reasonable, and I cannot, 1 apprehend, at all This case will be cited more at large upon another interfere with the well judged encouragement you have point. thought fit to promise to such as shall enter into this And, in the lessee of Samuel Hyde v. William Torservice, ! flatter myself you will find no difficulty in rence, Washington, May, 1799, before Yeates and making the acknowledgment therein mentioned, as I Smith, Justices. MSS. R ports. The plaintiff claimed on my part am ready to give you any assurance that the premises under an early improvement made by Thothe bona fide settlers shall be entitled to the lands under mas Provence, which originated in 1767, and was con. this government on the same rent and conditions as are tinued till 1783, without interruption. On the 8th of granted by you, &c."
May, 1782, he conveyed to Aaron Jenkins, in conside. March 21st, 1754, governor Dinwiddie writes in ration of £230, who released to Joseph Ross, under reply, “I am much misled by our surveyors, if the forks the yearly rent of 150 bushels of corn; and the tenant of Monongialo be within the limits of your Proprietor's afterwards improperly permitted Martin Harden, the grant; I have for some time wrote home to have the son of defendant's landlord, to come into possession on line run, to have the boundaries properly known, that his receiving a bond of indemnification. On the 26th I may be able to appoint magistrates on the Ohio, (if in of July, 1783, Jenkins conveyed to the lessor of the this government,) &c.
plaintiff in consideration of £300, who, on the 24th of "In the mean time, that no hindrance may be given to November, 1789, obtained a warrant for 200 acres, inour intended expedition, I think it highly reasonable, if cluding Provence's improvement, whereon interest was these lands are in your Proprietor's grant, that the to commence from the 1st of March, 1770, but got no settlers thereon should pay the quit.rents to Mr. Penn, survey. and not to his majesty; and therefore, as much as lies in The defendant, as tenant to John Harden, claimed my power, 1 agree thereto, after the time granted by under two titles. 1st. An application of John Husk, them by proclamation to be clear of quit-rent, ceases; for 300 acres, on the west side of Monongahela, at the but surely I am from all hands assured that Logs-town mouth of Big White Lick creek, dated 13th of June, is far to the west of Mr. Penn's grant."
1769: a deed from Husk to Harden, in consideration of This fort was shortly afterwari's taken, and possessed £50, dated 20th of April, 1783; and a survey of 222 by the French under the name of Fort Du Qliesne; and acres, made on the 18th of July following. 2d. A cer, the military grants never fully took place; but divers tificate of the Virginia commissioners, “That Edward settlements had from time to time been made under Arsken is entitled to 400 acres, on Monungahela river, Virginia rights, which in ihe amicable settlement of the on the mouth of Whitely creek, to include the settleboundary, in and after the revolution, were provided for ment and improvement whereon Thomas Provence as follows.
lives, made in 1767, dated 9th February, 1780, which By an act passed April 1st, 1784, (post. chap.1098,) was regularly entered with the surveyor of the county, a certain agreement between the states of Pennsylvania on the 7th of March following; and a conveyance from and Virginia, concluded and signed, on the 31st of Arsken to Harden, dated 20th January, 1783, in consi. August, 1779, was recognized and finally ratified, to- deration of £200. gether with the conditions proposed by the state of Evidence was offered to prove, that Arsken was no Virginia, in their resolves of the 23d of June, 1780, as settter under the Virginia law of 3d May, 1779, “by