Endorsement of Legal Opinions on Land Titles Obtained from the Indians
ADS: Historical Society of Pennsylvania
The promoters of the Walpole Company in London had decided not to wait for confirmation of their grant before putting at least part of it on the market. They had obtained two legal opinions that their title to that part, the lands that the Indians had ceded at Fort Stanwix to the “suffering traders” was a valid one.2 Franklin’s involvement in their marketing plan in 1775 seems to have been minimal. Samuel Wharton had asked him to help Major Trent’s lobbying among members of Congress,3 but the only small sign of his support that has come to light is the endorsement below. What he endorsed were the opinions, which Trent had brought with him.4 The first was from Henry Dagge, a counsel for and member of the Walpole Company; he argued that the right to property lay with the original Indian possessors, who were free to alienate as they pleased; their conveyance to the crown at Fort Stanwix had been for the sole use of the traders, subject only to the king’s sovereignty over settlers as British subjects, and title rested with the grantees. The second opinion, by Sergeant Glynn, was to the same effect: the crown had proprietary rights in vacant and unappropriated lands, but not in those that had been ceded to the traders, whose title was good and sufficient and protected by the laws of England.5 This subject was, as Franklin says, one to which he had given a great deal of attention. It was also, as he does not say, one on which he held more radical views that those of the two lawyers.6 His interest in it went beyond a mere endorsement. One of his proposed articles of confederation, which he was presumably drafting at about this time, rested on the assumption that previous purchases from the Indians were valid.7 In 1776 he was actively concerned in Trent’s efforts to dispose of the land ceded to the traders.8 He retained his shares in the Walpole Company, and in 1780 he and Wharton petitioned Congress to complete the grant.9
Philada. July 12. 1775
Having long since carefully studied these Points, I concur fully with Counsellor Dagge and Serjeant Glynn in their Opinions as above deliverd.
2. See the headnote above, April 11.
3. To BF above, April 17.
4. Below his endorsement is another by Patrick Henry, also an ADS and dated July 29, concurring in the opinions “from principles which appear to me very clear.” (The principles were also profitable, for Henry received a fee: Lewis, Indiana Co., p. 160). We assume, with no proof, that Trent brought with him Wharton’s MS draft of View of the Title to Indiana. . ., and had the pamphlet printed as soon as he obtained the endorsements. This assumption, if true, explains where and when the first edition appeared; it bears neither place nor date. It was designed to influence Congress, we are convinced, and was therefore published in Philadelphia, probably in the late summer. The abysmal typography suggests a printer working in haste, and haste is understandable. The promoters were trying to elicit a Congressional declaration that the Indians had full power to alienate their land, and by August a scheme was afoot to sell the traders’ tract. See below, Bancroft to BF, Aug. 7, and WF to BF, Aug. 14, 1775.
5. For Dagge see above, XVI, 45 n, 168, and for Glynn XXI, 89 n. The legal issues involved in this application of the Pratt-Yorke opinion are discussed in XX, 116–17, 300–1.
6. Ibid., pp. 302–4.
7. Article XI: below, under July 21, 1775.
9. Bigelow, Works, X, 346–71, where the petition is misdated 1779.