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To Benjamin Franklin from Franklin and Samuel Wharton: Memorial to Congress, 26 February 1780

From Franklin and Samuel Wharton: Memorial to Congress

DS: National Archives

This memorial from Franklin and his long-time partner in western land ventures Samuel Wharton recapitulates the history of their efforts to establish a legitimate title to lands they had purchased in the unsettled area south of the Ohio River. Their enterprise originated in 1768 as an attempt by a group of Pennsylvania merchants, the “suffering traders,” to obtain land in compensation for losses they had sustained in Indian raids in 1763.6 By the summer of 1773 the petitioners had nearly achieved their objectives, having obtained a favorable report by the Board of Trade on their request and an order from the Privy Council to the solicitor general and attorney general to prepare the official instrument of the grant. Numerous delays over the next year, however, convinced the claimants that the immediate resolution of their cause would not issue from Whitehall.7 In April, 1775, the promoters of the Walpole Company in London authorized William Trent, an original member of the group who had been in London lobbying and was just returning home to America, to explore the possibilities for selling at least part of the tract of land they were certain would soon lawfully be theirs. Wharton had collected two legal opinions which assured them that the land titles needed no further validation by the crown.8

The greatest obstacle to the claims of the Indiana promoters over the next three years was the insistence by Virginia that she alone had authority over her outlying lands. The Virginia constitution of 1776 had provided the outlines of the state’s western policy, and subsequent resolutions by state legislative bodies sought to implement it. Agents of the Indiana group and other land companies presented appeals to the legislature in May, 1779.9 The following month Virginia took its final stand on the issue: the state had the exclusive right of purchasing from the Indians all lands within its chartered boundaries.1

With their hopes of recognition by Virginia dashed, the Indiana associates turned to the Continental Congress for “justice.” Although Franklin had long believed that sovereignty over the western lands lay with Congress and while agents of the company had informally approached members of Congress, they made no formal petitions prior to the fall of 1779.2 In September, however, associates of the company presented memorials to Congress.3 The timing of the plaintiffs’ appeal may seem slightly opportunistic: in the spring of 1779 the Indiana Company was arguing that the lands were Virginia’s to grant, but by the fall they contended that the Congress had assumed from the crown sovereignty over the territory in question.4

Although Franklin and Wharton officially were still partners in the venture, we assume that Wharton played the major role in drafting the present memorial.5 The document apparently had been in the works for some months, and what precipitated it we cannot be sure.6 Possibly Wharton, in correspondence with members of the company back in America, suspected that Virginia would refuse their company’s claims and prepared to adopt a new approach to Congress. The memorial’s date, however, would indicate that he intended to take it to America in person, for he left Paris shortly afterward to make his way home to Philadelphia.7

Passy, (in France) February 26 1780

To the Honorable, the Representatives of the United States of North America in Congress Assembled,

The Memorial of the Honorable Benjamin Franklin and Samuel Wharton humbly sheweth:

That on the 5th day of November 1768, His Britannick Majesty at a Congress held with the Six Nations of Indians, at Fort Stanwix, purchased from the said Indians a very extensive Tract of Country, Situate near the Province of New York, and upon the river Ohio in North America, The limits and Boundaries of which Tract are mentioned and described in the Deed of Sale and Conveyance from the said Indians to his said Majesty.8

That the Consideration paid by his said Majesty’s Agent to the said Indians, on their executing the said Conveyance amounted to the Sum of £10,460.7.3. Sterling, exclusive of other Considerations referred to in the said Conveyance.

That in June 1769 a Petition was presented to his said Majesty by your Memorialists, in behalf of Themselves and several Persons residing in the United States and Great Britain, proposing to purchase 2,400,000 Acres, Part of the said tract, at such Price and Subject to such Quit Rents as should be thought reasonable,9 and the Petitioners humbly proposed, that a Grant of the Lands, under the Great Seal of Great Britain, should be made to Them and their Heirs and Assigns; and that such Grant should particularly specify the several and respective Boundaries and Limits within which the Lands thereby granted should be located or set out.

That the said Petition having been referred by his said Majesty in Council, to the Earl of Hillsborough and the other Lords Commissioners for Trade, and Plantations, your Memorialists and Several of their Associates attended their Lordships in the month of December, 1769, on the Subject of the said Petition;1 when the Earl of Hillsborough was pleased to recommend to the Petitioners, to endeavour to contract with the Lords Commissioners of the British Treasury for such Part of the said Lands, purchased from the said Six Nations, lying on the river Ohio, as would be Sufficient in extent to form a Seperate Government, and your Memorialists and their Associates acceding to this Suggestion and Recommendation, his Lordship immediately went from the Board of Trade to the said Board of Treasury, desiring the Petitioners, to wait ’till his Return when his Lordship was pleased to inform the Petitioners, that he had applied in their behalf to the Duke of Grafton, Lord North, and the other Lords of the said Treasury Board, which was then sitting, who had signified their Desire to receive the Proposal of the Petitioners, for purchasing such Tract of Land as was recommended to them to contract for as aforesaid.

That accordingly, on the 4th. day of January, 1770, a Memorial was presented to the said Lords Commissioners of the Treasury, proposing to purchase the Tract of Land, herein after described,2 and to pay the sum of £10,460 7. 3. Sterling money of Great Britain for the same, and a quit Rent of two shillings for every hundred Acres of cultivable Land, within the said Tract, the said quit Rent to commence after the Expiration of Twenty Years; the Boundaries of which Tract of Land were described in a Paper annexed to the said Memorial, and are as follow.— Beginning on the South Side of the River Ohio opposite to the mouth of Scioto, thence Southerly thro’ the Pass in the Ouasioto Mountains to the South Side of the said Mountains, thence along the Side of the said Mountains North-Easterly to the Fork of the great Kenhawa, made by the Junction of green Briar and new River, thence along the said Green Briar River on the easterly Side of the Same unto the Head or Termination of the North Easterly Branch thereof, thence Easterly to the Allegheny Mountains Then along the said Allegany Mountains to Lord Fairfax’s line, thence along the same to the Spring Head of the North Branch of the River Potowmack, thence along the western boundary Line of the Province of Maryland to the Southern boundary Line of the Province of Pennsylvania, Thence along the said boundary Line of the Province of Pennsylvania to the End thereof, Thence along the western boundary Line of the said Province of Pennsylvania, untill the same shall strike the River Ohio, thence down the said River Ohio to the Place of Beginning.

That the said Lords Commissioners of the Treasury took into Consideration the said Memorial and Paper containing a Description of the Lands applied for, and agreed to accept the Price offer’d to be paid for the Purchase of the said Lands, in Case the other Departments of his said Majestys government, who were the proper Judges of the Policy of the Grant applied for, should approve such Grant, but with Respect to the quit Rents proposed to be reserved, and the Periods at which They should commence their said Lordships postponed any Decision thereon ‘till They received information from the Earl of Hillsborough and the Board of Trade, what quit Rents were reserved on Grants in his said Majesty’s Colonies, which lie nearest to the Lands in Question, and from what Periods after the Grants such quit Rents commenced respectively.

That on the 19th Day of January 1770 the Earl of Hillsborough transmitted to the said Board of Treasury, an Account of the quit Rents reserved in such Grants of Lands in North America, as were nearest to the Lands applied for.

That your Memorialists, and their Associates being informed that Arthur Lee Esquire; who had prayed his said Majesty, on the 16th day of March 1768, to give and grant to him and his Associates 250,000 Acres of the said Land, had presented a Petition to the Lords Commissioners for Trade, and Plantations, as had also Colonel George Mercer, in Behalf of the Ohio Company (who claimed 500,000 Acres within the Limits of the Tract prayed for) and That the said Petitions had been transmitted to the said Lords Commissioners of the Treasury for the Purpose of Staying the Grant of the Lands to your Memorialists and their Associates.3 They Therefore, on the Fourth Day of April 1770, represented to the said Lords of the Treasury, that as their Lordships had agreed to the Sum offered to be paid for the said Purchase, and nothing was wanting to complete the same, but fixing the Time for the Commencement of the quit Rents, They hoped the Conclusion of their Treaty would not be delayed, at the Request of the said Petitioners.

That on the 7th of April 1770, the Lords Commissioners of the Treasury having been attended by your Memorialists and several of their Associates, Their Lordships acquainted them that as the Matter contained in the said Petition (of Colonel Mercer) related Singly to the question, how far the Grant to your Memorialists and their Associates could be made, consistenly with Justice, it could not properly come under the Consideration of that Board, who had nothing before them but the Settlement of the Purchase Money, and quit Rents to be paid, and with Respect to these Points, their Lordships agreed to accept the Proposition of the Memorialists, as to the purchase Money and quit rents to be paid for the said Grant.

That on the 8th Day of May 1770 your Memorialists and their Associates presented a Petition to his said Majesty in Council, praying that a Grant of the said Lands should be made to them, reserving therein to all Persons their just and legal Rights to any Parts or Parcels of said Lands, which might be comprehended within the Tract prayed for by the Memorialists.

That your Memorialists, and their Associates having agreed with the said Colonel George Mercer on Behalf of the Ohio Company; he withdrew his Application to his said Majesty for a seperate Grant of Lands, within the Tract prayed for by the Memorialists, and relinquished all Claim thereto.4

That on the 25 day of May 1770, the Lords of the Committee of Council for Plantation Affairs, referred to the Lords Commissioners for Trade and Plantations, the Memorialists said Petition of the 8th of May 1770.5

That in July 1770, when the aforesaid Petition was under the Consideration of the Lords Commissioners for Trade and Plantations, the Earl of Hillsborough was pleased to send for and acquaint your Memorialists and several of their Associates, that the said Commissioners were of opinion, The Government of Virginia should be furnished with Copies of all Papers relating to your Memorialists and Associates Contract with the Lords Commissioners of the Treasury, and that until such Time, as an Answer was received to a Letter, which the Earl of Hillsborough was directed by his Britannick Majesty to write to the governor of the Colony6 (inclosing the said Papers) all farther Proceedings with your Memorialists, and their Associates, touching the Premisses, must be suspended; but his Lordship was pleased to assure your Memorialists, and several of their Associates, that he should by the said King’s express Command, forbid the Governor of Virginia to grant any Warrants for, or suffer any Surveys to be made on any Lands within the Boundaries of the Contract of your Memorialists, or beyond the Limits, prescribed by the Royal Proclamation of 1763.

That on the 24th of February 1771 the Honorable Mr. Walpole (one of your Memorialists Associates) understanding, that an Answer was received from the President, and Council of Virginia to the foregoing Letter of the Earl of Hillsborough, made Application to his Lordship for a Copy of the same, and on the day following,— His Lordship, by Letter, informed Mr. Walpole “that he had directed Copies to be made and Sent him of such Parts of the Letter as he had received from Virginia, as related to your” (memorialist’s) “Application for Lands in America, now before the Board of Trade.”— And that accordingly, your Memorialists and their Associates were furnished with Copies of such Parts of Mr. President Nelson’s Letter (dated Williamsburgh October 18th 1770) as related to their Contract aforesaid, by which it appeared, that all the Proceeding’s concerning the said Contract with the Lords Commissioners of the Treasury (transmitted, as above, by Order of the Board of Trade) and the Earl of Hillsborough’s Letter of the 20th of July 1770 (forbidding by the said King’s Order, The granting of any more Lands westward of the Alleghany Mountain) had been received “read in Council, and maturely considered.”7

That it also appear’d, that the said President and Council had represented to the Earl of Hillsborough, that “his late Majesty (George the Second) had been pleased to order 200,000 Acres of Land to be granted to the Ohio Company, and that Governor Dunwiddie had, by proclamation, promised 200,000 Acres on, or near the Ohio to Such Persons as would voluntarily enter the King’s service for the Defence of the Frontiers &c. (as upon Reference being had to the said Letter, will more particularly appear) But at the same Time, the said President (and Council) observed “that in all other Grants, He did not find any Steps had been taken towards Surveying and Seating them. Of Course (he added) They are, or will become lapsed”, And also, That,— “We do not presume to say, to whom our gracious Sovereign Should grant his vacant Lands, all that We can consistently with our Duty hope for, is that all prior Rights, whether equitable or legal, may be preserved and protected.”

That upon the Earl of Hillsborough receiving the foregoing Letter, his Lordship wrote to Mr. President Nelson, January 2d. 1771, acknowledged the Receipt of his Dispatches, No. 2, 5, & 6, and observed to him, “That as the first related to a Matter under the Consideration of the Lords of Trade, his Majesty had ordered Copies thereof and of it’s inclosures to be sent to that Board, and that his Lordship had no Doubt, but in the Consideration of them,— Attention would be given to the equitable Claims of those bona fide Settlers, whose Possessions were derived from the Grants made to the Ohio Company in 1754, or such as were passed in Consequence of Instructions from his late Majesty or Lieutenant Governor Dunwiddies Proclamation, at the Commencement of last War.”

That after much Attendance and Solicitation at the Board of Trade, the Earl of Hillsborough and the other Lords Commissioners of that Board did on the 15th Day of April 1772 make a Report to the said Lords of the Committee of Council for Plantation Affairs, as to the Propriety of the Grant prayed for by your Memorialists and their Associates, both in Point of Policy and Justice …; and among other Reasons assigned by their Lordships against the Policy of the said Grant They were pleased to observe, That the Tract prayed for was out of all Advantageous Intercourse with Great Britain …; And with Regard to the Justice of the said Grant, their Lordships were pleased to report, That they presumed this Consideration could have Reference only to the Case of such Persons, who had already possession of Lands in that Part of the Country, under legal Titles, derived from Grants made by the Governor and Council of Virginia.8

That on the first Day of July 1772, the said Lords of the Committee of Council for Plantation Affairs took the said Report of the said Lords Commissioners for Trade and Plantations into Consideration, and having heard what your Memorialists and their Associates had to offer thereupon, did humbly report to his said Majesty, that it appeared to them upon full and mature Consideration of the Evidence, which the Petitioners had produced in Support of their Said Petition, (The most material Part of which had not been produced at the Board of Trade.)

1st. That the Lands in question had been for some Time past, and were then in an actual State of settling, Numbers of Families to a very considerable Amount removing thither from his said Majesty’s other Colonies.

2ly. That the Lands in question, did not lie beyond all advantageous Intercourse with the kingdom of Great Britain.

That the Lords of the said Council for Plantation Affairs, did at the same Time report to his said Majesty, that it was their Opinion, that in Case his said Majesty should be graciously pleased to make a Grant of any Part of the Lands in question, that the Petitioners were best entitled to such Mark of his Majesty’s Royal Favor, in Regard they were the first who had made Proposals for the Purchase from Government, of Lands in his Majesty’s Plantations in America, and had agreed to take the whole Expence of the Civil Government on themselves and their Lordships at the same Time that they recommended it to his said Majesty to comply with the Prayer of the Petitioners,9 submitted it, as their Opinion That Orders should be sent to the Superintendant of Indian Affairs, to apprize the Tribes of the six Nations and their Confederates, of such intended Settlement; and That the said Lords Commissioners for Trade and Plantations should be directed to prepare a proper Clause or Clauses to be inserted in the Grant, Saving and reserving to the respective Occupiers all prior Claims to Lands within the Limits of the said Grant, whether derived from equitable, or legal Titles, and further strictly prohibiting the Petitioners and their Associates, and their, and each and every of their Heirs and Assigns from settling occupying or improving any Part of the Lands lying between the Line which had been settled by the Treaty as well with the Tribes of the Six Nations and their Confederates, as with the Cherokee Indians, as the boundary line between his said Majesty’s Territories and the hunting Grounds of the Indians and the Line proposed by the Petitioners, beginning on the South Side of the River Ohio, opposite to the Mouth of Scioto, and running thence Southerly Thro’ the Pass of the Ouasioto Mountains to the South Side of the said Mountains, but that all that Part of the said Lands comprehended between the said two Lines should remain wholly unsettled and unoccupied by the Petitioners and their Associates, and each and every of their Heirs, and Assigns untill such Time as his said Majesty’s Allowance and Permission for the Settling and occupying the same, Should be first obtained;— And lastly, the said Lords of the Committee of Council for Plantation Affairs did report to his said Majesty, that it was their Opinion, that to the End the several Persons actually Settled, or that might thereafter Settle, might be more properly and quietly governed, that the said Settlement and District Should be erected into a Seperate Government, in such Form, and Manner as to his said Majesty’s Wisdom should seem meet, and under such other Restrictions and Regulations as his said Majesty’s Lords Commissioners for Trade and Plantations Should advise.

That on the 14th Day of August 1772 his said Majesty taking the said Report of the said Lords of the Committee of Council for Plantation Affairs into Consideration was pleased, with the Advice of his privy Council to approve thereof,1 and to order, that the Lords Commissioners for Trade and Plantations should consider and report to his Majesty in Council, if any and what Terms of Settlement and Cultivation, and what Restrictions and Reservations to the British Crown were necessary to be inserted in the said Grant, exclusive of the Money agreed to be paid by the Petitioners in Consideration of the said Tract of Land, And the Reservation of a quit Rent of two Shillings for every hundred Acres of cultivable Land within the said Tract, after the Expiration of twenty years and that they should likewise prepare a proper Clause or Clauses to be inserted therein, for saving and reserving to the respective Occupiers all prior Claims to Lands within the Limits of the said intended Grant, whether derived under equitable or legal Titles. And also strictly prohibiting the Petitioners and their Associates and each and every of their Heirs and Assigns, from settling occupying or improving any Part of the Lands which lie between the Line which had been settled by Treaty as well with the Tribes of the Six Nations and their Confederates as with the Cherokee Indians, as the Boundary Line between his said Majesty’s Territories and the hunting Grounds of the Indians, and the Line proposed to be drawn by the Petitioners (as above described) but that all that Part of the said Lands comprehended between the said two Lines should remain wholly unsettled and unoccupied by the Petitioners and their Associates, and each and every of their Heirs and Assigns ’till such Time as the Petitioners their Heirs and Assigns should have obtained his said Majesty’s Permission and Allowance for settling and occupying the same. And his said Majesty was pleased further to order that the said Lords Commissioners for Trade And Plantations should prepare and lay before his Majesty in Council a Plan for establishing a Seperate Government upon the said Tract in such Form and Manner and under such Restrictions and Regulations as they should judge proper and expedient; together with an Estimate of the Expence, and the Ways and Means by which the same should be defrayed by the Petitioners.

That on the 14th Day of August his said Majesty in Council was pleased by a further Order in Council to approve the Report of the said Lords of the Committee of Council for Plantation Affairs; and accordingly to give the necessary Directions to the Lords Commissioners for Trade and Plantations for carrying the same into Execution: And his said Majesty was thereby pleased to order “that the right Honorable the Earl of Dartmouth one of his said Majesty’s principal Secretarys of State Should receive his Majesty’s Pleasure for directing his Majesty’s Superintendant for Indian Affairs to apprize the Chiefs of the Six Nations and their Confederates, of his Majesty’s Intention to form a Settlement upon the Lands purchased of them by his Majesty in 1768.”

That in Consequence of the said Order of Council, the Earl of Dartmouth sent Instructions to his Majesty’s Superintendant for Indian Affairs, and in Obedience thereto the Deputy Agent for Indian Affairs on the 3d. of April 1773 assembled the Chiefs of the Western Nations and informed them in his Majesty’s Name, of his Majesty’s Resolution to form a Settlement upon Part of the Lands purchased of the Six Nations in 1768 and on the sixth Day of the same Month the Chiefs in Council returned an Answer, and therein among other Things observed, that as their Bretheren the white People had for some years past been settling in great Numbers thro’ that Country, they could not help being alarmed, as they appeared to do it, without the Authority of their wise People, or any good Intentions towards them. That for the Peace of the Country it was as necessary for prudent People to govern them, as it was for them to take Care of their foolish young Men. And they desired, that his Majesty might be assured that they wished nothing more than to cultivate the strictest Friendship with their Bretheren the English in that Country, And that it would give them the highest Satisfaction to take the Person, whom his Majesty should appoint to govern there by the Hand and to afford him all the Assistance on their Parts, that they were able to give in renewing and strengthning the Chain of Friendship and promoting the Peace and Tranquillity of that Part of the Country.

That on the 6th Day of May 17732 the Earl of Dartmouth and the other Lords Commissioners for Trade and Plantations were pleased to report to his said Majesty, that his Majesty3 having been pleased by his Order in Council of the 14th of August 1772 to approve of a Report from the right honorable the Lords of the Committee of Council for Plantation Affairs containing several Propositions respecting the Application made as aforesaid, for a Grant of Lands upon the River Ohio in North America and for erecting the said Lands into a seperate Government and to direct them to report their Opinion touching the Conditions of the said Grant and the Plan upon which Such Seperate Government ought to be established; They did therefore, in Obedience to his said Majesty’s Command, take the said Order of Reference into Consideration, and represented to his said Majesty thereupon.

That as the Measures which his said Majesty had been pleased to Adopt, in Regard to his Possessions upon the Ohio had they humbly conceived been principally founded upon a Consideration of the Necessity there was, for introducing some regular and uniform System of Government into a Country which tho’ at present a Part of the Colony of Virginia was yet from its remote Situation, incapable of participating of the Advantages arising from the civil Institution of that Colony, they did therefore, make the Consideration of the Plan of Government the first Object of their Attention, and as they presumed that it was not intended that the Limits of the new Government to be formed Should be confined to the Tract proposed to be granted in Propriety but that it Should comprehend all such Parts of that Country as by the Agreement of the Indians, were reserved for the Settlement of his Majesty’s Subjects, and which from their Nature and remote Situation could not participate of the Advantages of the Civil Constitution of any other Colony, they therefore craved Leave humbly to propose

1st. That the Lands comprehended within the Boundaries described in the said Report Should be seperated from the Colony of Virginia and be erected by Letters Patent under the Great Seal of Great Britain, into a distinct Colony, under the Name of Vandalia, And that the Form and Constitution of Government for the Said Colony Should be such, as is in and by the Said Report mentioned and expressed; And particularly that the Annual Salaries and Allowances to the Several Officers of Government, within the said new Colony should be as follows vizt

To the Governor £1,000”-”-
To the Chief Justice 500”-”-
To the Assistant Judges 400”-”-
To the Attorney General 150”-”-
To the Clerk of the Assembly 50”-”-
To the Secretary 200”-”-
To the two Ministers 200”-”-
£2,500”-”-

And that in Order to secure the Payment of the said Establishment, together with Such further Annual Sum, not exceeding £500, as should be necessary for contingent Expences, five of the Persons to whom the Lands prayed for, being a Part of the Lands included within the said new Government, Should be granted as hereinafter mentioned, Should give Security in the Sum of ten thousand Pounds Sterling for the Payment by the Proprietors of the Sums above mentioned, either into the Receipt of his said Majesty’s Exchequer or into the Hands of such Person as his said majesty should please to appoint to receive the Same, the said Payments to be made halfyearly and the first Payment to be made at the Expiration of Six months from the Date of the Governors Commission, and to continue to be paid half yearly as aforesaid, untill Provision Should have been made by some Act of general Assembly to be approved of by his said Majesty for the Support of the Said Establishment.

That pursuant to his said Majestys Order in Council of the 14th Day of August 1772, so much and Such Part of the Land included within the Limits of the new Colony as are hereinafter mentioned,— be granted to your Memorialists and their Associates, That is to say;

All the Lands included within the Following lines vizt, “beginning at the South Side of the River Ohio, opposite to the Mouth of Scioto, then Southerly thro’ the Pass of the Ouasioto Mountains, to the South Side of the said Mountains, then along the Side of the said Mountains North Easterly to the Fork of the Great Kenhawa made by the Junction of Green Briar River and new River, Thence along the said Green Briar River on the easterly Side of the same unto the Head or Termination of the North Easterly Branch thereof, thence easterly to the Allegheney Mountains, thence along the said Allegheney Mountains to Lord Fairfax’s Line, thence along the same to the Spring head of the North Branch of the River Potomack, thence along the Western Boundary Line of the Province of Maryland to the Southern Boundary Line of the Province of Pennsylvania thence along the said boundary Line of the Province of Pennsylvania to the End thereof thence along the Western Boundary Line of the said Province of Pennsylvania untill the Same shall strike the River Ohio, thence down the said River Ohio to the Place of beginning.”

That the said Grant should be made upon the following Conditions, and Reservations that is to say,

That the Grantees, Should upon the Day of the Date of the Grant pay into the Receipt of his said Majesty’s Exchequer the Sum of ten thousand four hundred and Sixty Pounds seven Shillings and three Pence, pursuant to the Agreement made with his said Majesty’s Treasury on the 7th of April 1770.4

That the said Grantees Should yearly And every year for ever, pay to his said Majesty his heirs and Successors or to such Person or Persons as his said Majesty should appoint to receive the same the Sum of two Shillings Sterling for every hundred Acres which they should lease, Let, demise plant or settle, whether the said Lands be settled and planted by the Said Grantees themselves, or by their Heirs or Assigns or Undertenants, the said Payment not to commence untill the Expiration of twenty years After such Leasing, Letting, demising, planting or Settling respectively.

That for the better ascertaining And Securing the Payment of the said quit Rent all Agreements for Possession, Leases, Grants, Conveyances, Demises, Plantings, Settlements or Proper Memorials thereof should be within Six months from the Date thereof transmitted to the Auditor of the Plantations in Great Britain and that all such Agreements for Possession, Leases, Grants, Conveyances, Demises, Plantings, Settlements or Memorials thereof Should not be admitted as Evidence in any Court of Law unless the Same were registered and recorded as above.

That in each of the Parishes, into which the Several Counties within the Province should be divided, there Should be a Tract of three hundred Acres reserved for the Purpose of a Glebe for the Support of a Minister of the Church of England And that such Glebe Land Should be granted by the Proprietors or their Heirs or Assigns as soon as a proper Church should be built and twelve Vestrymen elected out of such of the Parishioners as Should Subscribe to and profess the Doctrine of the Church of England, And that the said Grants be made free from any quit Rents or other Rents or Services whatsoever.

That the said Grantees Should within the Space of one year from the Date of the Grant erect and build or cause to be erected and built, at their own proper Cost and Charge within Such Part of the Province granted to them as his said Majesty Should direct and appoint a House proper for the Residence of his said Majesty’s Governor and also a Church.

That all prior Claims to Lands, within the Limits of the said Grant whether derived under equitable or Legal Titles Should be Saved and reserved to the respective Occupiers and Possessors with Exception however to all Occupancy of what Nature or kind soever taken or made Subsequent to the Agreement for the Purchase of the said Grant made with the Lords of the Treasury on the 4th Day of January 1770, And provided also that the Grant of two hundred thousand Acres to be made to the Officers of the Regiment, raised and paid by the Colony of Virginia in 1754, in Consequence of the Engagement made to them, should be located in one contiguous Tract.

That there Should be a Reservation to his said Majesty his Heirs and Successors of all Mines of Gold Silver or precious Stones, and of a Right of erecting on any Part of the said Lands Such Forts and Fortifications as might hereafter be judged necessary for the Security and Defence of the Possesions of the Crown of England in America.

And lastly, Their Lordships humbly craved Leave to represent to his said Majesty that they had omitted any Restriction upon the Proprietors from Settling to the West of the Line Agreed upon with the Cherokees at Lochabor in October 1770; that Restriction having, as they conceived, become altogether unnecessary, as the Indians had for the Sake of a natural Boundary consented, that the District reserved to his said Majesty for settlement should be bounded on the South West by the River Louisa or Catawba River, which is very far West of the utmost Extent of the Tract proposed to be granted in Propriety.

That on the 19th Day of May 1773 his said Majesty was pleased by an Order in Council of that Day to refer the said Report of the Earl of Dartmouth, and the other Lords Commissioners for Trade and Plantations to the Lords of the Committee of Council for Plantation Affairs.5

That on the 3rd Day of July 1773 their Lordships by an Order in Council bearing Date that Day6 were pleased to observe, that his said Majesty having pleased by his Order in Council of the 19th of May last to refer unto that Committee a Report made by the Lords Commissioners for Trade and Plantations (in pursuance of his said Majesty’s Order in Council of the 14th of August 1772) proposing amongst other things the Several Conditions and Reservations to be inserted in the Grant of certain Lands on the Ohio in North America prayed for by your Memorialists and their Associates, the Lords of the Committee that day took the Same into Consideration and were thereby pleased to order that his said Majesty’s Attorney and Sollicitor General7 Should prepare and lay before that Committee a Draught of a proper Instrument to be passed under the great Seal of Great Britain containing a Grant to Thomas Walpole Esquire and others his Associates of the lands prayed for by their Memorial inserting in said Draught the Conditions and Reservations proposed in the said Report of the Lords Commissioners for Trade and Plantations, a Copy whereof was thereunto annexed.

That on the 16th Day of July 1773 his said Majesty’s Attorney and Sollicitor General made a Report to the Lords of the Committee of Council for Plantation Affairs on the said Order of Council, (of July 3d, 1773)8 And after due Consideration of the said Report, their Lordships were pleas’d on the 28th Day of October 1773, to make the following mandatory order thereupon. Vidzt.

At the Council Chamber. Whitehall, the 28th Day
of October 1773.

By the right Honble: the Lords of the Committee of Council for Plantation Affairs.—

Whereas there was this Day laid before their Lordships a Report from his Majesty’s Attorney and Sollicitor General upon taking into Consideration an Order of this Committee bearing Date the 3rd. of July last, whereby they were directed to prepare a Draught of a proper Instrument to be passed under the Great Seal of Great Britain containing a Grant to the Honorable Thomas Walpole and others his Associates of certain Lands on the River Ohio in North America inserting in the said Draught, The Conditions and Reservations proposed in a Report of the Lords Commissioners for Trade and Plantations, bearing Date the 6th of May 1773, a Copy whereof was annexed to the said Order, in which Report of his Majesty’s said Attorney and Sollicitor General, it is humbly Submitted, that the Granting the Said Lands in joint Tenancy will probably render it impossible to make any under grants, with complete Titles. That the Description of the Thing to be granted is much more loose and uncertain Than hath been usual in Royal Grants, or than hath been practised So far as they know, in any but the Grants, which were made for the Erection of Colonies to the first Adventurers in America, while it was wholly unknown. And further, That the Quit Rents will not be so well Secured to his Majesty, if they are not reserved from the Lands under granted, instead of being made payable by the Grantees— The Lords of the Committee this Day took the said Report into Consideration, and are hereby pleased to order, that his Majesty’s Attorney and Solicitor General do prepare and lay before this Committee the Draught of a proper Instrument to be passed under the great Seal of Great Britain, containing a Grant to the Honble: Thomas Walpole Samuel Wharton, Benjamin Franklin and John Sarjent, Esquires, and their Heirs and Assigns of the Lands prayed for by their Memorial (they being the Persons, who in Behalf of themselves and their Associates contracted for the said Lands with the Lords Commissioners of his Majesty’s Treasury) inserting in the said Draught, the Conditions and Reservations proposed in the said Report of the Lords Commissioners for Trade and Plantations, dated the 6th of May 1773, excepting that Part of the said Report, which proposes, that the Grantees do pay the quit Rents to his Majesty his Heirs, and Successors; And in Respect thereof, the Lords of the Committee are hereby pleased to order That the said quit Rents be reserved from the Lands which shall be leased, sold, demised, planted or settled, whether the said Lands be planted, and settled by the said Grantees themselves, or by their Heirs or Assigns or Undertenants; the said Payment of the quit Rents not to commence untill the Expiration of twenty years after such leasing demising, Planting or Settling respectively, And for the better ascertaining the Bounds of the said Tract of Land to be granted as aforesaid, their Lordships are hereby pleased to transmit the Map of the Tract of Land prayed for by the Memorialists, and to order that his Majesty’s Attorney and Solicitor General do insert the Bounds in the same Manner as they are described and ascertained in the said Report of the Lords Commissioners for Trade, and Plantations, dated the 6th of May 1773—

That your Memorialists and their Associates understanding, in the Autumn of 1774, that the Earl of Dunmore, the then Governor of Virginia, had presumed to pass Grants for some Lands comprehended within the Bounds of their Contract aforesaid9 represented the Same to the Earl of Dartmouth, at that Time Secretary of State for the American Department, and his Lordship was pleased to convey his Britannic Majesty’s Command to the said Governor, in the following Words.1

Whitehall Octr. 5 1774

My Lord

As your Lordship says, that you was entirely ignorant of the Claim of Mr: Walpole and his Associates, otherwise than by Common Report, I think fit to enclose your Lordship, a Copy of Lord Hillsborough’s Letter to Lord Bottetourt of the 20th July 1770, the Receipt of which was acknowledged by Mr. President Nelson, a few Day’s after Lord Bottetourt’s Death, and appears by his Answer to it, to have been laid before the Council,— That Board therefore could not be ignorant of what has passed here upon Mr: Walpole’s application, nor of the King’s express Command contained in Lord Hillsborough’s letter, That no Land whatever Should be granted beyond the Limits of the Royal Proclamation of 1763, untill The King’s farther Pleasure was signified, And I have only to observe, That it must have been a very extraordinary Neglect in them, not to have informed Your Lordship of that Letter, and those Orders. signed.— I am, &c.

Dartmouth.

That in the Spring 1775, the Draught of a Royal Grant for the Lands aforesaid being prepared, pursuant to the said Order of Council, and having undergone the Examination and Correction of Lord Camden, and other’s of your Memorialists’ Associates in England, the Lord President of his Majesty’s Privy Council requested, That the Honble Mr. Walpole and his Associates would wait for the Grant aforesaid, and the Plan of Government of Vandalia, untill Hostilities, which had then commenced between Great Britain and the United Colonies, Should cease.

That your Memorialists and their Associates did incur a great Loss of Time (particularly Samuel Wharton, in an Absence of more than Eight Years from his Family, Connexions and Affairs) and expended the Sum of Nine thousand, five hundred, and fifty seven Pounds 13/6 Sterling money of Great Britain, in conducting this Business thro’ The various Offices and Departments of the British Government, and in making Presents to the Indians on the River Ohio, in Order to maintain Peace and Tranquillity there, and by these Means together with the before recited Contract, between them, and the said British Government, your Memorialists and their Associates did acquire an equitable Title to the Lands in Question, notwithstanding the Instrument for actually conveying the Same, was not compleated on Account of the Difference, which arose between the United Colonies and Great Britain,— And as your Honors have now succeeded to the Sovereignty of the Territory in question, Your Memorialists confide, That you will think it just and reasonable, To consider the said Lands as Subject to such Contracts, and Dispositions, as were made concerning Them, while they confessedly belonged to the British Crown; And that, your Memorialists, and their Associates, who have ever been ready to fulfil their Parts of the said Contract, may not suffer so great an Injury by a Change of Sovereignty, as to be deprived of their equitable Rights to the said Lands.

Your Memorialists therefore humbly pray, that the said Lands may be granted to Them, and to their Heirs and Assigns, (in Trust nevertheless, for and concerning the respective purparts and Shares belonging to their several Associates) upon the Terms and Conditions of the said Contract, and Order of Council, or upon such other Terms as may be convenient to the Interests of the United States And not injurious to your Memorialists and their Associates.

And your Memorialists, as in Duty bound shall ever pray &c.

Saml. Wharton
B Franklin

Notation: Memorial from the Hon. B. Franklin & Saml. Wharton Feby 26th. 1780.— March 16. 17812

[Note numbering follows the Franklin Papers source.]

6The group of traders seeking compensation was first organized as the Indiana Company. Enlarged and reconstituted in 1769 as the Grand Ohio Company, the group became an Anglo-American organization (informally called the Walpole Company) with ambitious plans to purchase vast tracts of western lands. It was later referred to as the Vandalia Company after the large land tract of that name. In January, 1776, the Indiana Company began to re-emerge as a separate entity after the Walpole promoters in London moved to market parcels of land that lay within the Indiana claim: XV, 78n; XVI, 163; XXII, 325–6.

7Thomas Walpole in September, 1774, had petitioned the crown on behalf of the company, urging prompt action in completing the draft of the grant. It was finished the following spring, but the commencement of hostilities suspended its implementation: XXI, 288n.

8See XXII, 19–20, 102–3. For Trent see V, 65–6n. The land titles had been conveyed by the Iroquois at the 1768 conference of Fort Stanwix, as is mentioned in the memorial.

9For the numerous representations by officers of the Indiana Company and the actions by the Virginia legislature on land purchases within the state’s boundaries see George E. Lewis, The Indiana Company, 1763–1798: a Study in Eighteenth Century Frontier Land Speculation and Business Venture (Glendale, Calif., 1941), pp. 199–222. The potential conflict between the company and Virginia’s own citizens had been evident as early as 1772; see XIX, 4–5n.

1See Peter S. Onuf, The Origins of the Federal Republic: Jurisdictional Controversies in the United States, 1775–1787 (Philadelphia, 1983), pp. 82–6; Merrill Jensen, “The Cession of the Old Northwest,” The Mississippi Valley Historical Review, XXIII (1936–37), 34–7. For the importance of the conflict over the western lands in the drafting and ratification of the Articles of Confederation see also Jack Rakove, The Beginnings of National Politics: an Interpretive History of the Continental Congress (New York, 1979), pp. 155–7, 159–60, 179, 187–90; Merrill Jensen, The Articles of Confederation: an Interpretation of the Social-Constitutional History of the American Revolution, 1774–1781 (Madison, 1940), pp. 198–218.

2BF’s proposed Articles of Confederation would have empowered Congress to purchase western lands for the benefit of all the colonies and to create new colonies: XXII, 120–5.

3William Trent and George Morgan (for whom see XIII, 400n) presented memorials on Sept. 14: JCC, XV, 1063–5. Trent’s is dated Sept. 11.

4Trent’s memorial put it succinctly: “all the Rights & all the Obligations of the Crown of Great Britain respecting the Lands & Government herein before mentioned devolve upon the United States.” Kenneth P. Bailey, The Ohio Company Papers, 1753–1817: Being Primarily Papers of the “Suffering Traders” of Pennsylvania (Arcata, Calif., 1947), p. 328.

5He had drafted most of the memorials and pamphlets to defend the company’s claims. See, for example, XIX, 59, 123–5; XXI, 12–13. BF had ostensibly withdrawn from the company in January, 1774, but he retained his financial interest and remained a partner, if a silent and inactive one: XXI, 31–4; XXIII, 156–8.

6In May, 1779, Wharton had sent BF a “parcel of Papers” about Vandalia. On July 1 Wharton asked, through WTF, for the rough and fair copy of what is certainly the present memorial: XXIX, 500. In September he refers in passing to papers on the “back Lands”: XXX, 418.

7BF wrote John Paul Jones on Feb. 19, 1780, above, that Wharton wanted passage with him. Although Wharton left Paris on March 17 planning to go to America on the Alliance, he in fact did not arrive back in the U.S. until 1781. BF to Jones, March 18 (National Archives); Wharton to BF, Dec. 2, 1780 (APS); Smith, Letters, XVII, 125n.

8For the Treaty of Fort Stanwix see XV, 264–6, 275–9; XVI, 163.

9For the petition from the Grand Ohio Company see XVI, 163–4, 166–9. There we refer to a 1779 petition from BF and Wharton which is, in fact, the present memorial.

1See XVII, 8.

2The petition of Jan. 4, 1770, and a description and map of the tract of land are printed in XVII, 8–11.

3Lee represented the Mississippi Company and Mercer (for whom see XII, 99n) the Ohio Company of Virginia: XVII, 135–6. Lee had petitioned in January that the lands not be granted to members of the Grand Ohio Company until his group was informed of the terms: Journal of the Commissioners for Trade and Plantations from January 1768 to December 1775 (London, 1937), p. 163.

4On May 7, 1770, the two companies had signed an agreement to merge: XVII, 136; Journal of the Commissioners for Trade, p. 188.

5Journal of the Commissioners for Trade, pp. 192, 194.

6The letter to Lord Botetourt, governor of Virginia, was approved and signed on July 20, 1770: ibid., p. 204.

7The communications between Lord Hillsborough, then secretary of state for the American Department (XIII, 414n), and President of the Council William Nelson (who became acting governor after Botetourt’s death in October) are discussed in XVIII, 75n. See also Clarence W. Alvord, The Mississippi Valley in British Politics … (2 vols., Cleveland, 1917), II, 115–16.

8The Board of Trade’s report is printed in Smyth, Writings, V, 467–78. Alvord discusses it at some length in The Mississippi Valley in British Politics, II, 130–6. See also our editorial note on the Walpole Company’s rejoinder: XIX, 123–5. Wharton drafted it for the company and published it in pamphlet form as Report of the Lords Commissioners for Trade and Plantations on the Petition of the Honourable Thomas Walpole, Benjamin Franklin, John Sargent, and Samuel Wharton, Esquires, and Their Associates … with Observations and Remarks.

9The Committee on Plantations of the Privy Council, overruling the Board of Trade, of which Hillsborough served as president, approved the Walpole Company’s petition on July 1, 1772. For the committee’s action and Hillsborough’s resignation a month later see XIX, 227n.

1For the Order in Council of Aug. 14, 1772, resulting from the report see XIX, 243–4n. On Nov. 2 the Board of Trade received an order to report on the grant and draw up plans for a government: XIX, 360n.

2The Board of Trade considered the matter in April (when Wharton was summoned to appear before them), and issued its favorable report on May 6: XX, 146n, 298–9n.

3The remainder of this paragraph and the fourteen following closely approximate the Board of Trade’s report. It is printed in full in Bailey, ed., Ohio Company Papers, pp. 263–79.

4XX, 326n.

5Alvord, The Mississippi Valley in British Politics, II, 156.

6W.L. Grant and James Munro, eds., Acts of the Privy Council of England, Colonial Series, 1613–1783 (6 vols., London, 1908–12), V, 210.

7They were Attorney General Edward Thurlow and Solicitor General Alexander Wedderburn: XX, 327n.

8For Thurlow and Wedderburn’s review of the form of the grant and BF’s suspicion that Wharton also submitted a separate draft grant of his own see XX, 299n, 327–8n. The Privy Council disregarded much of their report and ordered that the grant be drawn up virtually as the Board had proposed: XX, 328n.

9With the Vandalia grant apparently blocked in London, Gov. Dunmore asserted Virginia’s administrative control of the area around Fort Pitt: XXI, 287–8n.

1Dunmore’s proclamation and American Secretary Dartmouth’s Oct. 5 reply to it, all the relevant portions of which the present memorial quotes, are printed in Bailey, Ohio Company Papers, pp. 281–3.

2The date on which it was received by Congress: JCC, XIX, 264.

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