USA > Pennsylvania > The Register of Pennsylvania : devoted to the preservation of facts and documents and every other kind of useful information respecting the state of Pennsylvania, Vol. XII > Part 94
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And if any person or persons, singly or in companies, presumed to enter on any such unpurchased lands, to make surveys thereof, mark, or cut down trees thereon, and should be convicted thereof, was, or were to be - punished by a fine of fifty pounds, and three months' I imprisonment.
This act was limited to one year, and to the end of the next session of assembly. On the 17th of February, 1768, an act was passed, appropriating a sum of mo- ney to be applied to removing the discontent of the In- dians, &c. (chap. 571.)
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 person, &c. (Galloway's edition, page 355. )
This act, being without limitation, expired only on the extinguishment of all the Indian titles.
The reason of passing laws so highly penal, will be found in the votes of the assembly, vol. 6th, p. 7-8. The intruders who had been removed, had returned to their settlements. By the communications from Sir William Johnson, and General Gage, it appeared that there were apprehensions of an immediate rupture with the Indians; proclamations had proved to be ineffectu- al, and it was earnestly required that more effectual provisions should be made for that purpose, "before it should be too late to prevent the devastations, cruel- ties, and effusion of blood, attendant on an Indian war, which might be experienced soon, unless active mea- sures were adopted, for the redress of the grievances of which the Indians complained."
Indeed, so desirous was the government to prevent any cause of uneasiness with the Indians, that in April, 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'
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imprisonment, to hunt, or follow wild beasts, &c. with- out the limits of the lands purchased of the Indians by the proprietaries.
We have already given some account of the complaint of the Indians against the encroachments on their lands at Tulpehocken, on the lands on the Juniata, over the Kittatinny hills and in the forks of Delaware, and the manner by which they were quieted. All the different conferences and treaties with the natives are fairly en- tered in the council books, to which access has been had to establish facts; this part of the note will there- fore be closed with a brief view of such acts on the part of the executive as have been deemed material.
A proclamation was Issued July 18th, 1749, in conse- quence of the complaint of the Senecas, previous to the purchase of 1749, commanding all persons seated on lands not purchased of the Indians, lying westward of the blue hills, to remove therefrom; reciting, among other things, "That these persons had neither license from the proprietaries, nor color of title to said lands, and to permit them to stay there, would not only be a breach of the public faith given to the Six Nations, but may occasion dangerous quarrels with them, and be the cause of much bloodshed." Council books, M. p. 30.
At the treaty which ended in the purchase of 1749, the speaker, Canassatego, mentions that he had seen the papers, (proclamations,) ordering the people to remove in consequence of the complaints made by the Senecas, and thanked the governor for taking notice of them, and taking measures to turn them off; but, said he, we are apprehensive that no better effects will fol- low those, than former ones of the same nature; if not, we must insist on it, that as this is on the hunting ground of our cousins, the Nanticokes and other Indi- ans, living on the waters of the Juniata, you use more vigorous measures, and forcibly remove them. We must not be deprived of our hunting country; and in- deed it will be an hurt to you, for all we kill goes to you, and you have the profit of all the skins. We therefore repeat our earnest intreaties, that they all may be immediately made to go away with their effects, that this country may be entirely left vacant, ibid. p. 36. This was promised to be done; and some kind of force became necessary; which will produce to view a transaction ever memorable in the land history of Penn- sylvania.
On the 25th of May, 1750, governor Hamilton in- formed the council, that Mr. Peters the secretary, and Mr. Weiser, the Indian Interpreter, were then in Cum- berland county, in order to take proper measures with the magistrates, to remove the settlers over the hills, who had presumed to stay there, notwithstanding his proclamation; and laid. before them the minutes of a conference held at Mr. Croghan's, in Pennsborough township, as well as with Mr. Montour, as with some Shamokin and Conestogoe Indians. The Indians ex- pressed themselves pleased, to see them on that occa- sion; and as the council at Onondago had this matter exceedingly at heart, they desired to accompany them; but, said they, notwithstanding the care of the governor, we are afraid that this may prove like many former at- tempts; the people will be put off now, and come next year again; and if so, the Six Nations will no longer bear it, but do themselves justice. Then follows the report of Mr. Peters, entered at large, and also printed in the votes of assembly, vol. 4, p. 137. By which it appears, that on the 22d of May they proceeded to a place on Big Juniata, about twenty-five miles from its mouth, where there were five cabins, or log houses, one possessed by William White, another by George Ca hoon, the others by men of the names of Hiddleston, Galloway, and Lycon. These men, except Lycon, were convicted by the magistrates upon view, in pur- suance of the act of February 14th, 1729-30, (chap. 312,) and the cabins were burnt. A number of cabins were also burnt at Sherman's creek, and Little Juniata. On the thirtieth of May, they proceeded into the Tus-[
carora path, o' Path valley, and burnt eleven cabins; at Aughwick, they burnt the cabin of one Carlton, and another unfinished one, and three were burnt in the big cove. The settlers, who were numerous, were recog- nized to appear at the following court. The report is long, but interesting, and may be readily referred to in the printed journals. Every public document thus in- contestibly proves the invalidity of settlements and sur- veys on the unpurchased territory. See minutes of council, Book M, p. 58 to 71.
April 18th, 1752, commission and license to Andrew Montour, to settle and reside in any place he should judge convenient and central, and to preserve the lands from being settled by others, and warn all off who had presumed to go there; and to report the names of such as settled there, that they might be prosecuted. Ibid. 151.
The proceedings at Albany in 1754, have been al- ready transiently mentioncd. One of the great objects of that treaty was to remove the discontents, and strengthen and confirm the wavering fidelity of the Six Nations; and, as is expressed by the lords of trade, " at so critical a conjuncture, to put them upon their guard against any attempts which may be made to withdraw them from his majesty's interest; and that nothing may be wanting to convince the Indians of the sincerity of our intentions, you will do well to examine into the complaints they have made of being defrauded of their lands, to take all proper and legal methods to redress their complaints, and to gratify them by reasonable purchases, or in such other matter, as you shall find most proper and agreeable to them, for such lands as have been unwarrantahly taken from them, or for such other as they may have a desire to dispose of." Ibid. 341.
The proceedings of this treaty enter deeply into the provincial history of this country, and but a small part of it is applicable to the subject of this note. The editor cannot, however, avoid remarking, that there may be traced, in considerable detail, the artful mea- sures of persons pretending claims under Connecticut to lands within the charter bounds of Pennsylvania, and their clandestine proceedings in obtaining a deed from certain Indians for the Susquehanna lands, after the sale to Pennsylvania, and a full view, exhibited by the proprietary commissioners to them, at their own request, all the original deeds; the cause of infinite trouble and expense, the effects of which are yet painfully experi- enced. At this treaty, also, a plan of union among the colonies, was drawn up and adopted, to be laid before the respective colonies, on principles which have since more extensively and beneficially been carried into ef- fect by the constitution of the United States.
Proclamations for the removal of certain settlers at Cushietunk on Delaware, February 28th, 1761, council books, S, p. 85-and September 16th, 1761, ib. 179- and June 2d, 1763, ib. 387.
The royal proclamation of 7th October, 1763, ex- pressly prohibited any settlements on lands unpurchas- ed from the Indians, and commanded such settlers forth- with to remove. Ib. p. 431.
l'roclamation commanding settlers on unpurchased Indian lands immediately to evacuate and abandon them. Council books, T, p. 121. Dated September 23d, 1766.
On the 24th of February, 1768, a proclamation was issued by governor John Penn, which, after reciting the act of February 3d, 1768, (supra) proceeds thus. "In pursuance thereof, of the said act, I have thought proper, by the advice of the council, to issue this my proclamation, hereby giving notice to all and every such person and persons who are settled upon any lands within the boundaries of this province, not purchased of the Indians, by the proprietaries thereof, (except as in the said act is excepted, ) to remove themselves and their families, off and from the said-lands, on or before the first day of May next ensuing. And I do hereby
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strictly charge and command such person and persons, under the pains and penalties by the said act imposed, that they do not, on any pretence whatever, remain or continue on the said lands, longer than thirty days after the said first day of May next." Council books, T, page 288.
The next matter to be considered is, how far judicial decision has strengthened and supported the principles apparent in all the foregoing proceedings.
In Plumsted's lessee v. Rudebagh, Westmoreland, May 1795, before M'Kean, C. J. and Yeates, J. MSS. Reports. Plaintiff claimed under a special order of survey to D. Franks, on the 1st of April, 1769. Sur- veyed in June, 1769, and followed by patent in Febru- ary, 1787.
The defendant offered to prove, that his father, Christopher Rudebagh, settled on these lands in 1761, before the Indian purchase, in consequence of a milita- ry permit from colonel Boquet, which he alledged was lost by the casualty of fire; but that his uninterrupted possession until his death would be presumptive evi- dence thereof, and that he had made considerable im- provements thereon. (Defendant had obtained a war- rant for the land in December, 1784.)
This evidence was excepted to, and overruled.
By the Court. - How can the parol evidence affect the present question of right? In 1761, the soil belonged to the Aborigines. Neither the act of assembly, nor the proclamation of 1768, gave the settler before the Indian purchase any title to the lands. By the act it was made highly penal either to make other settlements on the Indian lands, or not to remove from those already made.
On the opening of the Land Office,on the 3d of April, 1769, it was declared " That those who had settled plantations, especially those who had settled by permis- sion of the commanding officers of the west ward, should have a preference."-What does this preference mean? Does it not suppose that an application should be made by such settlers, to the Land Office, on 3d April, 1769, or in a reasonable time, afterwards, for this favour, in order to secure their possessions? Neither old Rude- bagh, nor his son, applied for any supposed preference of these lands until December, 1784, above fifteen years after the commencement of the plaintiff's title; and this will not be pretended to be in due and convenient time. To introduce witnesses to prove these improvements would, in our idea, be irrelevant to the point of right, after such great negligence. Such a measure would make the titles of lands, which should be permanent and fixed, to depend on parol evidence, and open a wide door to perjury .-- Verdict for plaintiff.
So, in the lessee, of David Sherer v. Thomas M'. Farland, Westmoreland, May 1797, before Yeates and Smith, Justices, MSS. Reports. The plaintiff claimed under a warrant for 200 acres of land, including an im- provement, on the waters of Sewickly, &c. dated 24th of June 1785,and a deed poll of the improvement from John Loydick to William Mount, dated 11th of January, 1775, and another deed from. Mount to Sherer, dated 21st January, 1778, and he offered to prove, that one Abraham Leasure made a considerable improvement on these lands in 1768 and 1769, before the opening of the Land Office, and that John Loydick derived title under hi !. This evidence was objected to.
By the ,Court .- We are no enemies to bona fide im- provements, restricted without rational limits; but these were never deemed to extend beyond the lands pur- chased from the Indians. Such a system would be wild, as well as highly impolitic, and would tend to deluge the country in blood,by provoking the savage nations to hostilities.
Under the law of 3d of February, 1768, all persons were interdicted from settling on the Indian lands, un- der the highest forfeiture known in society; and by an act of 18th of February, 1769, persons making such settlements, or making surveys, or making, or cutting
down trees with design to settle, or appropriate such lands, incur a penalty of £500, and twelve months' im- prisonment. It cannot be possible, that such daring infringers of the laws, could gain any title by unauthorized acts of trespass, against the solemn declared will of the community?
It must be admitted, that the lords of the soil had the exclusive right of disposing of their lands in their own mode. Immediately after the Indian treaty at , Fort Stanwix, was closed, on the 4th November, 1768, the people were publicly notified, that improvements on the newly purchased lands should give thein no advan. tage whatever; and the same information was given on the opening of the Land Office. It cannot therefore be doubted, but that to obtain a title to the lands lately sold by the natives, it was absolutely necessary to apply to the Land Office in the usual and accustomed method.
Such have been the uniform decisions of courts of justice, in which we fully acquiesce. To establish a contrary doctrine, would introduce insecurity of proper- ty, and every species of mischief. The testimony of- fered is therefore overruled.
Defendant claimed under an application of 3d of April, 1769, a survey and patent. The plaintiff suf. fered a nonsuit.
And, in Drinker's lessee, v. Hunter, Northum. berland, October, 1796, before the same judges. (MSS. Reports. ) The court after argument, declared that no settlement on, or improvement of lands out of the limits of the Indian purchases, after the law of 3d of February, 1768, gave any pretensions of pre- emption to the parties making them, or shadow of title, nor would the court suffer evidence of such settlements or improvements to go to the jury.
And in a still stonger case, at the same court, (MSS. Reports,) in the lessee of Peter Weiser, v. Samuel Moody. The plaintiff claimed under a patent dated 7th of July, 1755, issued to Conrad Weiser, his grandfather, in consideration of his services, as interpreter to the Six Nation Indians, and of £5. It recited a warrant dated 21st of January, 1755, (which was not shewn in evidence, ) and a survey thereon, of 305 acres, 36 perch- es, and allowance made on the 9th of June, 1755.
The warrant issued in consequence of the special di- rections of the late proprietaries, dated the same day. It was an order in favour of Conrad Weiser and Richard Peters, for 4000 acres, in any part of the new purchase lately made of the Indians; and the deputation from Nicholas Scull, the Surveyor General, to Samuel Wei- ser, was to survey for his father, a tract on Susquehanna, a small distance above the tract lately confirmed to him. This tract lay two miles from the land in question.
Nothing appeared on the face of the survey, or any of the papers produced by the plaintiff, which could have denoted, that the lands in controversy lay out of the then Indian purchase, which was admitted to be the case.
The defendant claimed under an application dated 24th of May, 1769, after the treaty at Fort Stanwix, descriptive of the disputed grounds, and a survey made thereon, on the 23d of August, 1769.
The court declared their opinion to the jury. that if the late proprietaries or their officers, knew that the lands surveyed for Conrad Weiser, lay out of the then Indian purchases, and granted them under full know- ledge thereof, the patent would enure for the benefit of the patentee, when the lands came afterwards to be purchased of the Indians; and the proprietaries could not pass the title to a stranger, It might be com- pared to a person's selling lands without title, and af- terwards obtaining a right thereto, where the vendor would hold in trust for the vendee.
The proprietaries enjoyed a grant from Charles II, to their ancestor William Penn; but they did not rely solely thereon. 'They bought the lands from the na- tives, and gave them valuable considerations therefor. Herein they evinced a strong sense of moral honesty, as
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well as sound extended policy. It cannot, therefore, be presumed that the proprietary officers knew the lands surveyed to Conrad Weiser, to be without the limits of their purchases. It would form an exception to their uniform established practice, and ought to be clearly shewn. The warrant in all probability, pursued the terms of the special order, and was for lands " in some part of the new purchase." The order to Samuel Weiser, to make the appropriation, called for lands a small distance from another tract, which was confessed- ly within the purchase. If other words were used in the warrant, it ought to be shewn; and its absence in- duces a presumption, that if produced, it would operate against the party. No mountains or waters are to be seen on the survey, from whence it might be inferred, that the lands designated thereby, were out of the Indian purchase. If the king is deceived in his grant, it will be avoided. Any contract or deed will be visited by allegatio falsi, sive suppressio veri. The plaintiff suf- fered a nonsuit.
This principle is fully recognized in Kyle's lessee ». White. Both plaintiff and defendant had settled on the Indian land, on Juniata, previous to the purchase of 1754. Neither of them, says the chief justice, can de- rive title from the date of their improvements, because they were made against law, on lands not purchased of the Indians. 1 Binney, 248. This case will be again cited for other purposes.
As settlements under military permits are excepted by the act of February 3d, 1768, and the proclamation of the 24th of the same month, it is proper that class of cases should be considered here. During the Indian warfare, it was necessary for the accommodation of the the armies on the line of their march, that such settle- ments should be encouraged in the wilderness. And it was reasonable,that persons who by such permission, had settled plantations, at the risque of their lives, for pub- lic accommodation, (throwing aside all motives of private interest, which, no doubt, had their influence, ) should have the preference, when the office was open for the sale of the lands. Such preference was accordingly given.
In Blaine's lessee v. Crawford, Alleghany, May, 1793, before M'Kean, C. J. and Yates, J. - (MSS. Reports. ) The draughts of the Delaware, and the boundary line between this state, and the state of New York,returned It is recognized as a principle, that a military permit to settle and improve lands, is not to be regarded, unless by the respective commissioners, are deposited in the followed by a settlement and improvement.
In the lessee of Todd, v. Ackerman, Westmoreland, May, 1793, before M'Kean, C. J. and Yeates J. (MSS. Reports.) A question was raised, whether a person claiming under a military permit, did not lose his pre- ference, by not entering his application on the third of April,-1769. On the single abstract point, it was held, "that a settler under permission of a commanding officer, to the westward, did not lose his preference by omitting to apply to the Land Office on the third of April, 1769." But how early such application ought to have been made, was not then decided. It must be in a reasonable time, as mentioned above in Plumsted and Rudebagh.
But, in the lessee of Bernard Gratz v. Patrick Camp- bell. Westmoreland, November, 1800, before Yeates and Smith, Justices, (MISS. Reports. ) The plaintiff claimed a moiety of the land under a special order to David Franks, of the 1st of April, 1769,a survey there- on made 1st June, 1769, and a conveyance from Franks.
The defendant offered to shew, that he made a settle- ment on these lands in 1761, before the Indian purchase, under a military permit, which he asserted to have been lost; and that Christopher Hayes, the agent of the said Franks, had agreed to the running of a line be- tween him and his principal. It was admitted, that he took out no office-right until 1784.
But the Court said, that such evidence, in a case so circumstanced, would introduce the utmost confusion, and impair former determinations. Here it is not at- tempted to shew any parol evidence, that such a military VOL. XII. 42
permit ever existed. But if this had been shewn, it was incumbent on the party to obtain an office-right after the opening of the Land Office on the third of April, 1769, or in a reasonable time afterwards; and no case has yet gone further than by extending that time to the month of July following. Here the warrant was not obtained till 1784, and the military permit had, long before, lost its preference. As to the consent of Haves to a line, it can have no effect, unless he was authorized to settle boundaries. The evidence was over-ruled, and verdict for plaintiff.
Before we proceed to the general subject of the Land Office, it is proper to bring into view the public trans- actions respecting boundaries with the adjoining states.
With respect to the state of New Jersy, there could be no controversy as to the general boundary of the river Delaware, but the jurisdiction in and over that river, and the islands therein, became the subject of compromise.
An agreement was accordingly entered into by the two states, by means of commissioners, on the 26th of April, 1783,and ratified by act of assembly, passed 20th of September, 1783, (chap. 1024, ) all which may be seen at large in this volume, ante. page 77, and need not be repeated here; see also an act annexing the dif- ferent islands in the Delaware allotted to this state, to the jurisdiction of the adjoining counties, 26th of Sep- tember, 1786, (post. chap. 12.34. )
With respect to New York, commissioners were ap- pointed, in pursuance of an act passed 31st of March, 1785, (chap. 1143, ) to join with commissioners on the part of the state of New York, to ascertain the northern boundary of this state, from the river Delaware, west- ward, to the northwest corner of Pennsylvania. This duty was executed, and the line run and marked, which line was ratified and confirmed by an act passed Sep- tember 29th, 1789, (post. chap. 1446,) which, as it may be seen at large in this volume, need not be re- peated in this note. By an act passed 27th of March, 1790, (chap. 1489, ) three hundred pounds were granted to Reading Howell, for delineating on his map all the lines of this state, as established by law, or otherwise fixed and ascertained.
office of the secretary of the commonwealth.
A considerable part of the lands now within the ju- risdiction and boundaries of Pennsylvania was claimed to be within the dominion of Virginia, and was possess- ed by rights under that colony. It was determined in 1754, to build a fort, to prevent the encroachments of the French, at the Fork of Monongahela, where Pittsburg now stands. And to encourage the enlistment of troops, the following proclamation was issued by governor Dinwiddie, on the 19th of February, 1754:
" Whereas it is determined, that a fort be immediately built on the river Ohio, at the fork of Monongialo, to oppose any further encroachments. or hostile attempts of the French, and the Indians in their interest, and for the security and protection of his majestys's'subjects in this colony, and as it absolutely necessary, that a suffi- cient force should be raised to erect and support the same: For an encouragement to all who shall voluntarily enter into the said service, I do hereby notify and pro- mise, by and with the advice and consent of his majes- ty's council of this colony, that over and above their pay, two hundred thousand acres of his majesty, the king of Great Britain's lands, on' the east si le of the river Ohio, within his dominion, (one hundred thousand acres whereof to be contiguous to the said fort; and the other one hundred thousand acres to be on or near the river Ohio, ) shall be laid off and granted to such persons, who by their voluntary engagement, and good behaviour, in the said service, shall deserve the same. And I further promise, that the said lands shall be di- vided amongst them immediately after the performance
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