USA > Pennsylvania > Chronicles of Pennsylvania from the English revolution to the peace of Aix-la-Chapelle, 1688-1748, Vol. I > Part 6
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The older landholders and those who had inherited
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or bought from them could not be disregarded by the Assemblymen chosen by the whole body of property- owning freemen. In 1700, during Penn's second visit, it was enacted that all lands seated by virtue of letters patent or warrants under the Crown of England before the grant to William Penn except where obtained by fraud or deceit should be quietly enjoyed by the actual possessors and their heirs and assigns.
In 1709, the Swedish view was set forth in a petition to the Assembly, complaining moreover that those who had handed in their old patents never got them back. The Land Commissioners met the petitioners, and agreed to examine into any particular case of injury by taking away land, and insisted on the obligation to pay quit rent. Logan said that he, Secretary since Penn's departure, had never had any of the old patents, nor had ever asked greater quit rent than a bushel of wheat for every hundred acres. Penn, receiving notice of the complaints, represented the case, says Acrelius, to the Swedish Minister Resident in London, after transmission by whom the matter was taken up by the Royal Council of Sweden. It is possible that the mal- contents were the first to approach the Minister. The Royal Council under date of June 23, 1711, warned the members of the Swedish congregations on the Dela- ware, if they wished further help in church matters, to conduct themselves in obedience to the laws of the country where they were living and also to Penn. Pro- testing that they had always been quiet and loyal subjects, the Swedes in 1713 asked a certificate to that effect from the Assembly of Pennsylvania to the British and Swedish governments, and made a long representa- tion of grievances to the Swedish Minister. To a peti- tion in 1721 by Swedes for an act to confirm titles, the Land Commissioners made answer that the titles of the petitioners under the Duke of York had never been called in question, as far as the Commissioners knew.
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At the time of the Charter to Penn, the Indians had abandoned very few contiguous square miles within the present limits of the state, and, besides believing themselves entitled to the spaces between some isolated plantations, occupied the whole country from the Con- shohocken range of hills to Lake Erie, receiving white visitors occasionally in the southeast, on either side of that range of hills, and French missionaries, French traders, and perhaps French soldiers in the northwest. During the whole period of this history, the Penns can not be said to have obtained possession to a greater distance in any direction than ninety miles from Phila- delphia.
The general question of Indian title and Penn's attitude in relation thereto and his plan for the red man and the white man to live as good neighbours may be discussed here, leaving to the next chapter the account of particular tribes and the dealings with them before the end of Penn's second visit to Pennsylvania, and to other chapters the various episodes in Indian affairs connected with the time or subject touched upon in those chapters.
The principle being once established that discovery or occupation or cession by the discoverer or occupier gave to one Christian prince or nation the ownership as far as all Christian princes and nations were con- cerned, it follows that he or that nation alone of all of them could enter into relations with the barbarians inhabiting the region covered by such ownership. If another civilized power attempted to avail itself of any consent obtained from the native barbarians to a foot- hold in that region, it was an invasion. Moralists early doubted the right of any nation whatever to intrude where other human beings were dwelling, or even were accustomed to hunt and fish, unless those human beings gave consent, either freely or after a lawful war. Some persons had gone so far as to assert title by purchase
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from the natives, independent of or in opposition to title by discovery or occupation; but the general recog- nition by commercial and colonizing nations of title by discovery or occupation practically curtailed the rights of the aborigines of the New World by restricting the market for those rights, like some modern agreements restraining trade by apportioning territory. If wild men had any property in the soil, they could not seek in the family of Christian nations "the highest and best bidder." There was only one nation which could buy, and, under the best approved system, there was only one individual, viz: the sovereign, or his representative, either official or by license. Therefore, in discussing in the first chapter the claim of one Englishman against another, and tracing the title of one European power as against another, little has been said about any grant by the aborigines of North America. Yet it is clear that, except by absolute subjugation of these, no land within their reach could be actually and permanently acquired without license or transfer from them. In Good Speed to Virginia, printed in 1609, quoted in Alexander Brown's Genesis of the United States, there was mentioned as probably correct an opinion that the savages had no particular property in any part of the country, but only a general residence therein, as wild beasts in a forest; but, nevertheless, there was a dis- claimer of any intention to take the natives' rightful inheritance by force, for, it was stated, they were will- ing to entertain the settlers, and had offered to yield on reasonable conditions more land than could in a long time be planted. The customs of the savages lent some support to the theory of their right being merely that of residence, and of taking sustenance. Among such nomads, no individual could exclude another from a particular piece of ground, unless covered by his hut or his hill of corn, and proprietorship even by the tribe meant nothing much beyond the villages but the right
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to hunt or fish within certain limits. Moreover, govern- ment was loose, the "kings" or sachems presiding over a democracy in which affairs were settled by "the sense of the meeting." The freedom, however, of these democracies to withhold their communal possessions from Europeans was quite early pretty generally ac- cepted as a fact, and even recognized more than is sup- posed as a right.
The Swedes and the Dutch, too few to be conquerors, and looking for the furs to those experienced in hunt- ing, endeavored to be friends with the natives, and, condoning occasional murders by them, succeeded. Be- fore attempting to take possession of land, these Swedes and Dutch purchased it from those savages who claimed the right to sell, and, in the course of time, from successive and conflicting claimants. There was only one safe course to pursue: to buy from every Indian in sight, and if any who had sold had forgotten or doubted the scope of the transaction, then to buy over again. Whatever land acquired for the Swedish or Dutch colonies was not recognized as the property of individuals, passed to the King of England by the treaty of Westminster. The officers under Charles II or the Duke of York in dealing with the red men strove to avoid all cause of complaint through unfair trading or unjust bodily hurt. The laws published on March 1, 1664-5, at Hemsted by Col. Richard Nicolls provided that no purchase of land from Indians after that date should be a good title without leave from the Governor having been first obtained for such purchase; and that, afterwards, before a grant by the government could be issued, the sachem and right owner must acknowledge receipt of payment; and that all injuries done to Indians should, upon their complaint and proof in court, be speedily redressed gratis. Some purchases of land west of the Delaware were afterwards made by private individuals or public officers, so that by the
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time Penn received the charter from the King, a con- siderable part of the southeastern corner of the present state was covered by deeds from some Indian, much of the acreage being the private property of settlers, and much being undisposed of by the King or Duke, and so transferred to Penn. The quantity of vacant land, however, was as nothing compared to the needs of any large immigration.
We do not know how early and how clearly William Penn adopted the view, scarcely yet universally ac- cepted, that a civilized man is morally bound to bargain and pay for land over which nomads have been merely roaming. In a letter from Philadelphia, dated Aug. 14, 1683, to the Lords of the Committee for Trade and Plantations, Penn says: "I have exactly followed the Bishop of London's council (sic) by buying and not taking the Natives' land, with whom I have settled a very kind correspondence." The Bishop of London from 1679 to 1713, except during a short suspension in 1686, was Dr. Henry Compton, who will be mentioned in another chapter. It would seem that this counsel, or advice, was given on June 14, 1680, when Penn, being called in, appeared before the Committee, and the Bishop, a member of the Committee, was present, that meeting being the only one attended by him when Penn's charter was considered. Although the minutes do not mention it, we must conclude that the Bishop, always very outspoken, then expressed the hope that no land would be occupied without the consent and compensation of the natives, and that Penn gave as- surance that he would be extremely careful in this re- spect. This may not have been a new thought to Penn.
While we would not detract from the glory due to Penn and his earliest representatives for carrying out this plan faithfully in letter and spirit, and the glory due to the genuine or earnest Quakers for their whole treatment of the red man, we are quite sure, that, even
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without any humanitarian or moral ideas, Penn would have found no other course open to him than purchas- ing the Indian claim. The practice being so well established on both sides of the Delaware, the Indians would have driven out intruders. No leader without an army such as it was impracticable to keep, could have dared at the time to rouse in the savages a sense of being wronged.
In Penn's early prospectus called "Some Account of the Province of Pennsylvania," he offered shares amounting to 5000 acres "free of Indian claims." In his early deeds, he covenanted to clear, acquit, and dis- charge the conveyed lands from all manner of titles and claims of any Indians, or natives of the province. This extinguishment of supposed paramount title, where not already accomplished before his time, was duly prosecuted. The district in which any of those early purchases were located became clear of Indian claims; and it continued to be a rule with him and his family and the land agents of any of them not to author- ize a survey of any lot outside of what had been bought from the Indians.
Before any purchase of land from them was made by Penn or under his authority, he turned his mind to the two races dwelling together or in proximity with each other in harmony. The principle that only he could acquire the land which on March 4, 1680-1, be- longed to the red men, eliminated the most important subject from the dealings of private individuals, and this was enforced by an act of 1683 punishing with fine and loss of the land involved any purchasing of land from the natives without leave from the Proprietary and Governor or his Deputy. Where there unavoid- ably would be contact, Penn undertook to secure fair and right dealing. In the Conditions and Concessions agreed upon in England on July 11, 1681, between him and the adventurers, the plan of selling goods in public
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market under public stamp was made to embrace all buying from and selling to an Indian, and affronts or wrongs to an Indian were to be punished as if done to a fellow planter, any abuse by an Indian was not to be revenged by the planter abused, but left for satis- faction to a magistrate and the King of said Indian, differences were to be decided by a jury half of one race, half of the other, the Indians were to have the same liberty as any of the planters as to the improve- ment of their ground and the providing of sustenance for their families.
By Penn's instructions of Sep. 30, 1681, to his Com- missioners, Crispin, Bezar, and Allen, these articles of the Conditions were to be read to the Indians in their own tongue; then presents sent over for their Kings were to be given, and a friendship and league according to the Conditions was to be made, and this the said Crispin and others were faithfully to keep. The Assembly of 1683 enacted part of the Conditions in this shape: That on any damage done to the persons or estates of the inhabitants by any Indian, notice should be given to the King of the tribe to bring the Indian to trial before six freemen of the County and six of the near-by Indians; if such a trial were refused, the County Court should impose fine or other punish- ment: if any person in the Province or Territories injured an Indian, he should be tried by six freemen and six of the same tribe of Indians, the Indian King to be notified to be present.
Indians were allowed by an Act of Assembly a bounty for killing wolves. From 1690 until 1724, this was the same as paid to white men. Such had been the rule in the days of Nicolls.
Sale of strong drink to an Indian except by the Governor's license, and even the unauthorized giving of strong drink to an Indian, had been prohibited in the laws published by Nicolls. This not being in 1681
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still in force in the Duke of York's possessions, and Penn's officers having forbidden the sale in his prov- ince, several Indians on Oct. 8, 1681, petitioned Lieu- tenant-Governor Markham to take off the prohibition until the sale should be stopped at New Castle, because the Indians were going down there to buy rum, and getting more "debauched" than before. Altogether the Indians were rather hypocritical temperance advo- cates, and rarely aided any approach towards teetotal- ism. Sale or exchange was absolutely prohibited in the Great Law passed at Chester after Penn's arrival. Subsequently the Governor and Council were author- ized to suspend this law upon making agreement with the Indians that they submit to the same punishment for drunkenness as the other inhabitants, viz: fine or imprisonment on bread and water at hard labor. The law itself remained in force until Fletcher's time.
The Indians having been aggrieved in trade by strangers in Pennsylvania &ct., a law was proposed by the Assembly in 1693, and enacted by Fletcher, then Royal Governor in Penn's place, and was subsequently under Penn re-enacted, forbidding from trading with Indians all non-residents either on shore or aboard any vessel, except such as had come with their families with intent to settle, and forbidding the inhabitants of the Province and Territories to trade with the Indians pri- vately in the woods, or at the wigwams or Indian towns, or anywhere but at the trader's own dwelling-house.
On 3mo. 17, 1701, Penn and his Councillors came to the conclusion that the Indian trade should be put into the hands of a company, which should take measures to set before the savages good examples of probity and candor, both in commerce and behavior, and that care should be taken to instruct them in the "fundamentals of Christianity." In further considering the matter on the 31st, it was thought that there ought to be a joint stock in which all persons, especially the old traders,
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should be free to share, observing rules to be laid down by the government, and that no rum be sold to any but the chiefs, and in the quantities which the Governor and Council should see fit. The Assembly failed to agree with Penn upon a bill to regulate the Indian trade further than to prohibit the sale or gift of rum, brandy, or other spirits mixed or unmixed, and to forfeit any pawn taken from the Indians for any goods, the pledg- ing of guns, kettles, &ct. having prevented some of the red men from gaining their livelihood by hunting.
It will be shown in the next chapter that by the time William Penn ended his first visit to America he had secured from the Delaware Indians, or Lenni Lenape, or had had them confirm to him the eastern end of the present Bucks County from the Jericho Hills to the Neshaminy, and also the land at the headwaters of the Neshaminy and Pennypack Creeks and across to Chester Creek beyond the ridge called the Consho- hocken hills. In 1685, his agents secured the frontage on Delaware River and Bay from Chester Creek to Duck Creek, the frontage between Chester Creek and the Neshaminy apparently having been recognized as ceded to the whites, although later some further con- firmation was made. Some deeds professed to grant an extensive region even south of Duck Creek and near or on the Chesapeake and Susquehanna. During his second visit, he bought on both sides of the last named river from the ancient owners.
Penn stated late in life that he had bought the land of the natives dear. Even as to those who left to him the quantity and character of goods making up the con- sideration, we may judge that he did not abuse the confidence of the "untutored," for there are lists of the articles given to two of the unbusiness-like ones. Misleading is any attempt to contrast the present values of a suburban plateau and a gun; for at that time, the Indians had plenty of plateaux and few guns.
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Nor were those who sold at once shut out of the region sold: it seems that when the land was actually taken by settlers, these former owners were allowed to have their residence-the village and corn-patches-on part of what had been made a Proprietary manor.
By the course of the early officials, Dutch, Swedish, and English, and of the Quaker pioneers in dealing with the savages, not only was peace secured for the settlers, but also, at a price which it paid the European to give, and the Indian to take, land was allotted to civilized man, who, except in the surreptitious promo- tion of drunkenness, was useful to the uncivilized.
The land within the bounds of the King's grant not held by white men, and not still claimed by Indians, Penn undertook to sell or lease, or to cutivate by his own laborers.
In his first prospectus aforesaid, Some Account &ct., he named as the consideration for a sale a principal sum and, in addition thereto, an annual quit rent start- ing after 1684. This disproves as far as concerns most of the quit rents the statement, made by the Assembly of 1755, that the quit rents were sprung upon the first purchasers, and were acquiesced in only upon Penn's statement that they would take the place of taxes for a salary to him as Governor. It is true, as will be shown, that there arose a question about quit rents, but only those upon lots in the City.
An old act of Parliament, beginning with the words "Quia emptores terrarum," had directed that when owners of land in fee simple conveyed a piece in fee simple, the purchaser should hold feudally of the lord of whom the seller had held, but King Charles II, in the charter to Penn, authorized him and his heirs and assigns, notwithstanding this, to sell in fee simple, and retain feudal lordship of the piece sold. They were especially authorized to erect parcels of the territory into manors, and to hold courts baron or views of frank-
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pledge, and to grant estates to be held of such manors. More than this, the Proprietaries could interpose sub- ordinate barons between themselves and the actual owners of the plantations; for the Proprietaries' li- cense could authorize the purchaser of land in fee from them similarly to erect it into a manor, and to hold such courts within it, and to grant in fee simple to be held of such manor; but on all further or other alienations, the lands were to be held of the lord of whom the alienor had held them. In spite of the last mentioned restriction upon subinfeudation, the Supreme Court of Pennsylvania, after the American Revolution, decided that the statute Quia emptores was never in force in Pennsylvania, and that our ordinary "ground rents," as we call them, are services incident to feudal tenure.
William Penn granted the power to hold manorial courts to the Free Society of Traders, whose 20,000 acres he erected into the manor of Frank, and to Dr. Nicholas More, whose 10,000 acres were to be called the manor of Moreland. The license to More was dated Aug. 21, 1682. There is a tradition that More built a jail, no doubt for joint use with the Society of Traders, he being President of the Society. Besides these and the tracts reserved for the Proprietary himself, over which, of course, he could hold court, there were several blocks of 10,000 acres, and even some smaller ones, subsequently laid out as manors for certain of his rela- tions. Against them and his wife's brethren, the Pen- ingtons, he did not enforce a certain article of the Conditions, hereinafter mentioned, dated July 11, 1681, viz: that no purchaser of over one thousand acres should have more than one thousand in one tract, un- less he planted a family on every thousand within three years. Nor did Penn or these relations or connections suffer the loss of location by violation of another article, viz: that every one should plant, or man, his surveyed land within said period, or be obliged to move
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off on being reimbursed the cost of the survey. The Assembly of 1755 thought Penn himself within the rule : and he and the others probably put settlers upon these tracts ultimately. Every tract of 10,000 acres belong- ing to one owner came to be spoken of as a manor; and it is likely that Penn contemplated erecting as such, when peopled, even the tracts of that size of persons outside of his family : witness his direction in 1701 for a license of that kind for the Growdons' 10,000 acres or even for Joseph Growdon's 5000. In a deed of 1685 to Eneas Mackpherson alias Chatone of Inveressie in Scotland, esquire, for 5000 acres, the Proprietary erected them into a manor to be called the manor of Inveressie, with power to hold manorial courts; but claim under this deed, being made for the first time to the later Penns, was rejected.
William Penn, no doubt, could have gotten a quick return by "unloading" large shares of his province upon wealthy acquaintances, such, for instance, as those who were Proprietors of East Jersey, under whom great tracts might long lie waste, or upon those who would give considerable money to be local barons, who would make the colony less attractive to a poor man. Penn's great purpose, however, in obtaining a large territory and freedom to govern it, was to plant a colony, not to engage in real estate speculation. He surely hoped for some profit in the end; but the vision of a commonwealth based upon his ideas dominated his proceedings. Not merely was it to be a refuge for those oppressed on account of religion, although as such it would attract many, and particularly those with whom he had most influence, but it was to flourish with an industrious population. Not to interfere with the opportunities of such, he, in August or September, 1681, refused £6000-more than half the principal of the Crown's debt to his father-for 30,000 acres and a monopoly of the Indian trade from the Delaware to
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the Susquehanna, he to have, moreover, two and a half per cent of the profits of the trade. The Free Society of Traders had no such monopoly. Penn's first thought was to sell one hundred "shares," as he called them, of his land, each containing 5000 acres, and to let as much as he could to renters in lots not exceeding 200 acres, adding 50 acres for transporting a servant, and granting 50 acres to the servant at the expiration of the term of service. Very soon, however, the size of the lots to be sold was varied, and, in the sales of over 550,000 acres, made before 3mo. (May) 22, 1682, a tract was in some instances as small as 125 acres, and, in the majority of cases, less than 1000 acres. Besides Nicholas More, the greatest purchaser before May 22, 1682, was William Bacon of the Middle Temple. He did not remove to Pennsylvania, but soon sold his 10,000 acres in pieces. Some blocks of 10,000 acres were purchased respectively by two or more persons, so that the process of division began at once; while, with the large holdings, the descent to a number of owners, and the tempting prices early obtainable through the development of the country, brought about a break up or curtailment. Dr. More died in 1687; his widow, Mary, who married John Holmes, died in 1694. The death of two of the Doctor's children, Samuel and Rebecca, without issue tended to the concentration of the property, but, under an Act of Assembly of 1694 authorizing sale for benefit of the family, the "Green Spring" plantation, on which stood the dwelling-house (near Somerton, Philadelphia), was sold in the follow- ing year, and the heirs disposed of nearly all the other land before 1720.
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