USA > Pennsylvania > A history of the region of Pennsylvania north of the Ohio and west of the Allegheny river, of the Indian purchases, and of the running of the southern, northern, and western state boudaries. Also, an account of the division of the territory for public purposes, and of the lands, laws, titles, settlements, controversies, and litigation within this region > Part 7
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The last important Act deemed necessary to be referred to, was that of March 23, 1818.2 It ex- tended the limit in the 3d section of the Act of 11th April, 1799, for making settlement, improve- ment, etc., on purchased lots until the first day of April, 1824. The second section required the per- sons entitled to the benefit of this extension to pay in addition to the purchase-money an advance of twenty per cent. for rent and interest on the whole sum from the time the interest commenced on the original purchase-money.
Of the foregoing reservations the same may be
1 P. L. 1820, p. 39.
2 7 Smith's L. 114.
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said as was said of the reservations at Allegheny and Beaver. They were not dedications to the public, but reservations to the State herself. They are products of the same thought, and bear the same interpretation: that is, her reservation for public uses were to enable her to declare them in such manner as would be beneficial to herself as 0 well as to the public. Hence she constantly passed laws controlling and disposing of them as she deemed best for all interests, her own and others.
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CHAPTER X.
GENERAL DISPOSITION OF THE LANDS UNDER THE ACT OF APRIL 3, 1792.
THE last, and most important, division of the subject, is the general disposition of the lands in the region north of the Ohio River, and west of the Allegheny River and Conewango Creek.
The prime intention of the State, as already stated, was to reward the soldiers of the Pennsyl- vania Line in the Revolutionary War for their meritorious services; to raise money ; plant popu- lation in advanced positions for the protection of the western border of the State, and to facili- tate improvement. These objects she had pro- vided for in the redemption of the certificates of depreciation given to the soldiers, donations to them in land for their services, and by reservations at important points, for speedy sales, to raise money, and invite settlements.
These patriotic purposes left large sections of territory undisposed of. All of the western terri- tory, excepting a small portion on the eastern side of the Allegheny River, adjacent to Fort Pitt,
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was wild and uninhabited, and subject to Indian incursions. From 1780 until 1795 there was no safety from invasion and massacre. In 1782 Colonel Crawford was defeated, and burned at the stake, with a barbarity and suffering almost in- credible. In the same year Hannahstown, in Westmoreland County, was ravaged, and thence- forward the country from Wheeling to Fort Pitt was constantly threatened. General Harmar was defeated on the Miami in 1790, and General St. Clair in 1791; and in 1792 General Wayne began his preparation for his Indian campaign, which lasted until .1795. This condition of the western country bore directly upon the legislation of 1792.
The General Assembly of Pennsylvania, con- ceiving in that year that the time had come to make a general provision for the sale and settle- ment of this territory, passed the Act of the 3d of April, 1792,1 entitled " An Act for the sale of the vacant lands within this Commonwealth." After providing for the sale of the remainder of the unsold lands lying within the purchase of the Indians in 1768, the Act offered all the land lying north of the Ohio River, and west of the Alle- gheny River and Conewango Creek-excepting such parts as had been, or thereafter should be,
1 3 Smith's L. 70.
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appropriated to any public or charitable purpose- to persons who would cultivate, improve, and settle upon the same, for the price of seven pounds ten shillings for every one hundred acres, with an allowance of six per centum for roads and highways, to be located and secured as provided in the Act.
To understand the evils of this legislation, and the vice which led to the greatest litigation and uncertainty of title which ever ruined the pros- perity of a new country, and set it back many years, it may be stated in this place that the Assembly committed the sin of enacting a duplex and adverse system of acquiring title, which placed Land Office rights and settlement claims in direct hostility to each other, and led to a contest in the courts and on the lands, which lasted until long after the writer came to the bar. One mode was the purchase of a warrant at the Land Office for a tract of land to be surveyed thereupon, not exceeding four hundred acres and the allowance of six per cent., the grantee paying the purchase-money and fees of office into the State Treasury ; to be followed by actual settlement and improvement. The other mode was by an ac- tual settlement and improvement, in the first in- stance, made upon a tract not exceeding four hun- dred acres and allowance by any person desiring
4
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to settle, improve, and reside upon the same. In both instances a survey was required to be made by the deputy surveyor of the district in which the land lay. The warrant was so called, be- cause in its terms it was an authority or order to the Surveyor-General to survey a tract applied and paid for, and the Surveyor was required to make the survey thereof forthwith. On the other hand, an actual settlement and improvement being made, the Sth section of the Act required the deputy surveyor of the district, upon application of the settler, to make a survey of the tract upon which he had settled, and enter it on his books.
Had there been no Indian war probably there would have been fewer adverse claimants to the same tract. The settlers under warrants and those for improvements for themselves, would have gone on to the lands at an early date, and priority of entry would then have settled many disputes. But while those who desired to acquire land by settlement and improvement were prevented by Indian hostility, the capitalists, having money, and being near to the Land Office in Philadelphia, proceeded at once, procured their warrants, and " lodged them in the hands of the deputy survey- ors for execution. Hence much the largest num- ber of the warrants were taken out in 1792. On the 3d of April, 1792, the day of the passage of the law, Daniel Brodhead, then Surveyor-Gene-
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ral, took out two warrants for lands lying on Wal- nut Bottom Run, opposite the great falls of the Beaver, where the town of Beaver Falls now stands. On the 14th of April, 1792, the largest proportion of the warrants was taken out by John Nicholson, then the Comptroller-General of the State, and others, which afterwards became the property of the Pennsylvania Population Com- pany. Another large number of warrants was taken out in April, 1792, and April and August, 1793, in behalf of a foreign company known as the Holland Company. Besides, there were many individual capitalists who purchased or afterwards became owners of these early warrants, such as Judge James Wilson, Benjamin Chew, Archibald McCall, and other eastern residents. So great was the collective number of the warrants that, in the language of the old residents, the country was " thumbed over" from the Ohio to the Lake. Sur- veys on these warrants were made generally in 1794 and 1795. As a consequence they would have given undoubted titles had it not been for the terms of the 9th section of the Act of 3d April, 1792, which were variously interpreted by lawyers, courts, and people. This 9th section (to be copied in full hereafter) provided that no warrant or sur- vey of these lands should vest title unless the grantee had prior to the date of the warrant made,
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or should within two years after the date of the same, make an actual settlement thereon, by clearing two acres for every one hundred in the survey, erecting a messuage and residing thereon for five years. The section then provided for a forfeiture of the land in case of a default in these requirements.
But the Indian war continued without abate- ment. In the winter of 1792-3, General Wayne encamped his army at Legionville, a short distance below the present town of Economy, and on land now owned by the Harmony Society. His pur- pose was to drill and discipline his soldiers well to meet their Indian enemies-a want of proper dis- cipline having led largely to the defeats of Har- mar and St. Clair.
The next winter (1794) he encamped at Fort Washington (Cincinnati), and in the summer made his expedition to the Maumee, where he defeated the Indians on the 20th day of August. His treaty of peace with the Indians was not made until the 3d of August, 1795. It was ratified by the United States Senate on the 22d December, 1795. This became the first signal of safety for entry and settlement on these lands. Only a very few adven- turous spirits had gone on before, chiefly in the vicinity of the forts. The spring of 1796, became, therefore, the period when the largest wave of set- . tlement rose, and the settlers took possession.
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The current opinion among the settlers, the re- sult partly of legal advice, partly of self-interest, and to some extent of ignorance and hostility to capitalists who had bought up the lands, was, that the owners of the warrants, by reason of non- entry settlement and improvement, within the two years from the date of the warrants according to the requirement of the 9th section of the Act of 3d April, 1792, had forfeited their titles, and the lands were open to entry and settlement. As a consequence the settlers sat down upon the lands they selected, regardless of the surveys made on the warrants. This led at once to alarm among the warrant holders, and to steps to vindicate their rights.
To understand properly the events following, it is necessary to state the different interpretations placed upon the 9th section of the law. The set- tlers believed the warrants were absolutely void, or "dead," as they said, by reason of non-settle- ment, etc., within two years from their date. The warrant-holders, whom I shall call "warrantees" in the language of that day, held that the condi- tion of settlement being subsequent was abso- lutely gone by the prevention of the enemies of the United States (the Indians), and by their · persistence to settle within the two years. The legal profession in the western part of the State
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held an intermediate interpretation, that neither the warrants were void, nor the condition of set- tlement gone; but that the latter was only sus- pended until the prevention ceased, which ended with the ratification of the treaty of peace on the 22d December, 1795; and then, resuming its force, the warrantees had two years, viz., until the 22d December, 1797, to perform the condition by mak- ing the required settlement, etc.
Referring to the legal profession in the West, I may add some of the ablest lawyers in the State then graced the Western Bar. The following list of lawyers admitted at the first court held in Beaver County in February, 1804, will serve to give character to the lawyers of that day, viz :-
Alexander Addison (Judge), Thomas Collins, Steele Sample, A. W. Foster, John B. Gibson (the Chief-Justice), Sampson S. King, Obadiah Jen- nings, Wm. Wilkins, James Allison, John Sim- onson, David Redick, Parker Campbell, David Hays, C. S. Sample, Henry Baldwin, Thos. G. Johnston, Isaac Kerr, James Mountain, Robert Moore, Wm. Ayres, and Wm. Purviance. To these I may add James Ross and John Woods, of Pittsburgh. Many of these gentlemen became in after life eminent in the State and the United · States.
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Connecting itself with the current of events as to these warrant titles, it may be said also that the Assembly, containing many farmers, sympathized largely with the settlers; while some of the judi- ciary, drawn from the East, looked favorably upon the cause of the warrantees.
The Assembly, perceiving that so many of these lands had been taken up under warrants, and not settled, and fearing that the prime intent of the Act of 1792 was being frustrated by non-settle- ment, on the 22d of April, 1794,1 passed an Act forbidding, after June 15, 1794, more warrants for unimproved land within "that part of the Com- monwealth commonly called the New Purchase, and the triangular tract upon Lake Erie," except in favor of persons claiming the same by virtue of some settlement and improvement being made thereon, with a proviso in favor of certain persons who had credit balances due to them in the Land Office on certain unsatisfied warrants, who were allowed until the first day of January, 1795, to take out warrants upon such credits. Still more effectually to guard the settler's interests the Act provided that no warrants, except wherein the land is particularly described (technically known as " descriptive warrants"), should in any manner
1 3 Smith's L. 184.
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affect the title or claim of any person having made an actual improvement before such warrant is entered and surveyed in the deputy-surveyor's books. The office of the deputy-surveyor being in the district in which the land lay was thereby convenient of access to the settlers, and his books gave notice of the lands appropriated.
The interference in favor of the settlers was more decided in the Act of 22d September, 1794,1 in these words : "That from and after the passing of this Act no applications shall be received at the Land Office for any lands within this Common- wealth, except for such lands whereon a settlement has been or hereafter shall be made, grain raised, and a person or persons residing thereon." The second section annulled all applications on file after April, 1794, on which the purchase-money had not been paid. Provision was also made for the benefit of certain credits in the Land Office, and for patents. This Act extended to the whole State, and included, therefore, these lands and the triangle at Lake Erie.
On the other hand, the officers of the Land Office and the Board of Property, down to about the year 1800, held that the condition of settlement was extinguished and wholly gone, by the preven-
£ 1 3 Smith's L. 193.
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N. PTF
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tion caused by the Indian war, and a persistence to make the settlement during the two years from the date of the warrants. There was evidence of this persistence on part of the Holland Company. On this ground the Board of Property, as then composed, granted to the Holland Company eight hundred and seventy-six patents, and so late as February 4, 1799, granted numerous patents to the Pennsylvania Population Company. These patents became known as "Prevention Patents." But a change in the administration of the State Government took place by the election of October, 1799. Thomas Mifflin had been the Governor from 1790 until 1799, when Thomas McKean suc- ceeded him, remaining in office until 1808. A different doctrine was held by the Board of Pro- perty under Governor McKean, and it was now held that the Indian war merely suspended the required settlement under the 9th section of the Act of 3d April, 1792.
The Holland Company having renewed its ap- plication for prevention patents, the Secretary of the Land Office refused to issue them. The com- pany thereupon instituted proceedings by man- damus, in the Supreme Court, against Tench Coxe, Esq., the Secretary, to compel him to issue the patents.
As several companies played conspicuous parts
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in the great controversy under the 9th section of the Act of 1792, it is proper to notice them briefly.
The Holland Land Company, consisting of a company of Holland capitalists, had had large sums of money invested in America during the Revolutionary War. After the declaration of peace, concluding not to remove their money, they purchased large bodies of land chiefly in New York. They invested also in Pennsylvania, first in lands, surveyed in large tracts, generally of one thousand acres each on the east side of the Allegheny River within the purchase of 1784. After the passage of the Act of 3d April, 1792, they purchased many warrants of four hundred acres each, to be located on the west side of the Allegheny and the Conewango, and within the Erie Triangle. They purchased and paid for eleven hundred and sixty-two warrants of four hundred acres in Districts Nos. one, two, three, six, and seven. These were issued for them in April, 1792, and in April and August, 1793. They were surveyed chiefly in 1794 and 1795. This company took the lead in the litigation re- ferred to.
The Pennsylvania Population Company was next in importance. John Nicholson, the Comp- troller-General, soon after the passage of the Act of 3d April, 1792, applied for three hundred and
٢٠
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ninety warrants, to be located within the Erie Triangle, and two hundred and fifty warrants to be located on the waters of Beaver Creek. He then organized the Pennsylvania Population Company, of which he became President, and Messrs. Caze- nove, Irvine, Leet, Hoge, Mead, and Stewart, managers. Nicholson conveyed his claims to this company, they paying the purchase-money to the State, and in addition paying for five hundred more warrants. The capital of the company con- sisted of twenty-five hundred shares, laid out in the purchase of five hundred thousand acres of land. Their first general agent was Ennion Williams, who belonged to the Society of Friends. He was appointed May 26, 1795, and February 1, 1805. Their next general agent was Enoch Marvin, ap- pointed May 2, 1809. These gentlemen figured largely in the controversies with the settlers ; both, however, being gentlemen of kindly feeling and just views.
For the purpose of performing the condition of settlement under the Act of 1792, this company offered to persons willing to settle their land, and make proof of the settlement to obtain the patents, a gratuity of one hundred and fifty acres ; and, in many instances, also sold to them an additional quantity, at a certain price, the whole not gene- rally exceeding two hundred acres.
9
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The company dissolved in the year 1812, and their lands passed chiefly to William Griffith, of New Jersey, and John B. Wallace, of Philadel- phia. These gentlemen soon failed, owing to the disastrous times following the war of 1812-15, ruining not only them but many others. The writer has a vivid recollection of the general in- solvency prevailing in Pittsburgh in the years 1821, 2, 3.
Mr. Griffith and Mr. Wallace divided their lands, Griffith taking the contracts of settlement and sale, and Wallace the unseated and unsold lands.
Griffith's interest finally passed into the hands of Wm. Meredith and John Day, assignees of Maurice Wurtz and Wm. Wurtz, of Philadelphia, the largest part of Mr. Wallace's going to the Farmers and Mechanics' Bank, of Philadelphia, to which he was indebted. The deed to the bank is dated December 1, 1818. It is partly copied into the Appendix, as a matter of curiosity to Philadelphians, who will recognize in the names of the warrantees in the schedule many names of Philadelphians in the last decade of the last cen- tury. The explanation is this : In the practice of the Land Office only one warrant could be issued to one person. Hence the capitalists who pur- chased many warrants were compelled to use the names of many persons, who afterwards made over
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to them the legal title by "deeds poll." This custom was so general that the courts recognized these persons as trustees for those who paid the purchase-money and the surveying fees. As the evidence of the identity of the persons paying the purchase-money certain " blotters" in the Land Office, known as John Keble's1 Blotters, became famous, in which he had entered the names of purchasers of warrants, etc. These were much used in the trial of ejectments.
In 1806, the Board of Managers of the Pennsyl- vania Population Company consisted of James Gibson, President, and Paul Busti, William Cram- mond, Henry Drinker, Jr., Thomas Astley, and John Waddington, managers.
The titles of the company were vested in John Field, William Crammond, and James Gibson as Trustees, who afterwards conveyed to Robert Bowne, a new Trustee. All these names appear frequently in the titles to these lands.
In January, 1812, the stockholders of the com- pany having dissolved the association under the terms of their agreement, directed all their estate, real and personal, to be sold at auction, and ap- pointed James Gibson, Henry Drinker, Jr., Thomas Astley, William Griffith, John B. Wallace, and William Crammond, as managers and agents to
1 8 Watts, 111, 112; 3 Casey, 15, 16.
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attend to the business. All their estate, real and personal, was sold at auction at the Merchants' Coffee House in Philadelphia on the 29th and 30th days of June, 1812.
The North American Land Company was one of vast proportions, formed in 1795, in Philadel- phia by Robert Morris, John Nicholson, and James Greenleaf. Its investments were largely in other States, chiefly in New York. But little is known of this company in this State, excepting that in recent years the settlement of its affairs has undergone judicial investigation in Phila- delphia.
The mandamus case, before referred to, of the Commonwealth v. Tench Coxe, brought at the in- stance of the Holland Land Company to compel the issuing of patents to them is found in 4th Dallas's Reports, 170 to 205, and furnishes a very full history of the controversy between the war- rantees and the settlers. It contains, also, the form adopted and approved by Attorney-General Ingersoll for the certificates of prevention, framed to obtain the patents, since known as "Prevention Patents."
This case brought up the question of the inter- pretation of the 9th section of the Act of 3d April, 1792; which is in the following words :1-
1 3 Smith's L. 73.
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"That no warrant or survey, to be issued or made in pursuance of this Act, for lands lying north and west of the rivers Ohio and Allegheny, and Conewango Creek, shall vest any title in or to the lands therein mentioned, unless the grantee has prior to the date of such warrant made or caused to be made, or shall within the space of two years next after the date of the same, make or cause to be made, an actual settlement thereon, by clearing, fencing, and cultivating at least two acres for every hundred acres contained in one survey, erecting thereon a messuage for the habita- tion of man, and residing, or causing a family to reside, thereon for the space of five years next fol- lowing his first settling of the same, if he or she shall so long live, and in default of such actual settlement and residence, it shall and may be.law- ful to and for this Commonwealth to issue new warrants to other actual settlers for the said lands, or any part thereof, reciting the original warrants, and that actual settlements and residence have not been made in pursuance thereof, and so as often as defaults shall be made for the time and in the manner aforesaid, which new grants shall be under and subject to all and every the regulations contained in this Act. Provided always, never- theless, that if any actual settler or any grantee
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in any such original or such succeeding warrant shall by force of arms of the enemies of the United States be prevented from making such actual set- tlement, or be driven therefrom, and shall persist in his endeavors to make such actual settlement as aforesaid, then, in either case, he and his heirs shall be entitled to have and to hold the said lands, and in the same manner as if the actual settlement had been made and continued."
The controversy centered around the provision in the section in regard to the time of persistence in making the settlement, and the effect of the Indian war upon it, by extinguishment or suspen- sion of the condition. Chief Justice Shippen held that "the Legislature could only mean to exact from the grantees (warrantees) their best en- deavors to make the settlements within the space of two years from the date of their warrants, at the end of which time, if they have been prevented from complying with the terms of the law by the actual force of the enemy, as they had justly paid for the land, they are entitled to their patent."
Justice Yeates delivered the opposite opinion, which may be summed up in the paraphrase which he made of the 9th section, viz: "Every warrant- holder shall cause a settlement to be made on his lands within two years next after the date of his
:
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warrant, and a residence thereon for five years next following the first settlement, on pain of forfeiture by a new warrant. Nevertheless, if he shall be interrupted or obstructed by external force from doing these acts within the limited periods, and shall afterwards persevere in his efforts in a reasonable time, after the removal of such force, until these objects are accomplished, no advantage shall be taken of him for a want of a successive continuation of this settlement."
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