In the years immediately preceding the American Revolution, GW devoted considerable time and effort to the acquisition of large tracts of land in western Virginia and in the Ohio Valley. By 1775 he laid claim to over 37,000 acres in the West, acquired under the proclamations of 1754 and 1763 for his military services during the French and Indian War or through purchases from other veterans. In 1770, in payment for a debt of £2,000 owed him by his neighbor John Posey, GW received a warrant from Posey for 3,000 acres, the amount of bounty land that Posey was entitled to under the Proclamation of 1763. GW used the major part of the warrant to claim 2,813 acres on Millers Run, a tributary of Chartiers Creek, in an area that was then considered a part of Augusta County, Va., but by 1784 lay across the boundary in Washington County, Pennsylvania. William Crawford surveyed the tract for GW in 1771, but GW was not able to patent it until July 1774.1 The remainder of Posey’s warrant was applied to the 587–acre tract at Round Bottom on the Ohio River.
GW began to have difficulties with squatters on his Millers Run land in the early 1770s. Crawford reported in May 1772 that he had turned off several men who had built cabins on the land, paying them a small consideration for their improvements. Crawford then built houses on the land to establish GW’s claim.2 In October 1773, however, another, and more determined, group of settlers moved onto GW’s land. Crawford wrote GW in December: “Som people, about 10 or 12 in number, has gon on your Cherter land within this few days and there is no geting them of without by Force of Arms They are in Couraged by Majr [Edward] ward Brother to Colo. Croghan, ho Claims the Land, and says he has grant. . . from Crown for that Land and he will undemnifie them, if they will set in any house whare no Person is Living. . . . he farther ads that Colo. Croghan says you and my self has used his Brother Colo. Croghan very ill in pretending to bey his Land and did not, but want and took the best of it, and would not agree to pay him. . . . I think such Proceeding as those if not Stopd will soon set the Hole County in ruin those men have not bought of him, but took your Land and say the[y] will Keep it, I cold Drive them a way but they will com back Emedetly as soon as my back is turnd, They man I put on the Land they have drove away and Built a house so Colse to his dore he cannot get into the house at the dore.”3 George Croghan may indeed have urged the squatters to settle on GW’s land. Croghan, one of Pennsylvania’s largest land speculators, was undoubtedly piqued that he had failed in his attempts to enmesh GW in his land schemes.4 In 1770, besieged by creditors on every side, Croghan had tried to retrieve his fortunes by an ambitious scheme to reactivate an earlier grant he had received from the Indians, setting up a land office at Pittsburgh to deal with sales of his claims. After GW visited Pittsburgh in October 1770 on his land-seeking western tour, he noted in his diary on 21 Oct. that all of the land between Raccoon Creek and Chartiers Creek was owned by Croghan and that by Croghan’s account it was “a body of fine Rich level Land,” which “he wants to sell, & offers it at £5 sterg. pr. hundd. . . . provided he can sell it in 10,000 Acre Lots.”5 Croghan, assuming that his bait had been taken, wrote a colleague jubilantly that he was “likely to sell another tract to Coll. Washington and his friends. If I do that, I expect to have one good nights rest before Christmas, which is more than I have had for eight months past I assure you.”6 As GW continued his trip down the Ohio, however, he began to have second thoughts about Croghan’s proposals. “The unsettled state of this Country,” he noted in his diary on 21 Oct., “renders any purchase dangerous.” His suspicions of Croghan increased after William Crawford wrote that he feared Croghan “has not a proper title to what he now is Claiming.”7 GW’s skepticism was well founded. After the final boundary settlement between Virginia and Pennsylvania, Croghan was able to obtain legal title to none of the lands he claimed.
During the next few years Crawford continued his attempts to keep squatters off the Millers Run land. As late as September 1776 he wrote GW that “your Land on Shurtees Creek is well Cultivated Redy to your hand; the men on it thinking you have no patent for the Land or that if you have that youl will Lease them the Land on Reasonable tearms.”8 In their conflict with the squatters, GW and Crawford were confronting a long-established if extralegal Pennsylvania land policy. Under the Penns a relatively lenient view of illegal settlers had evolved, the proprietors believing that any occupation of the land was preferable to leaving it vacant and unimproved. Original settlement and improvement had come to represent a more valid claim to unoccupied land than the mere possession of a patent. Boundary disputes often were referred to local tribunals where sentiment was strongly in support of illegal settlers and opposed to absentee land speculators.9
After his return to Mount Vernon in 1784, GW began to take stock of his western landholdings.10 The Pennsylvania-Virginia boundary dispute finally had been settled in 1780, and when the line was run in 1784–85 it left GW’s Chartiers Creek land on the Pennsylvania side of the boundary. Aware that squatters had long established themselves on his Millers Run land and made relatively extensive improvements, GW in the spring of 1784 instructed his nephew John Lewis to inform the settlers that he had a legal patent to the property and that he would “most assuredly assert his right to it.” He was, however, willing that they should remain as tenants on the land “upon a just & moderate Rent.” Lewis did not deal with the tenants directly but published advertisements informing them of GW’s intention to repossess his land.11
In September 1784 GW decided to make a tour in which he would inspect his landholdings in the West, oversee the sale of the land at Washington’s Bottom, Pa., held jointly with Gilbert Simpson, Jr., and investigate the possibilities of river navigation up the Potomac into the Ohio Valley. In addition, he contemplated at last a face-to-face meeting with the recalcitrant settlers on his Washington County land. Arriving in the area of Chartiers Creek on 18 Sept., GW met the assembled tenants on 20 September. The squatters were Seceders, a Presbyterian sect that had separated from the Church of Scotland in 1733. All were men of some consequence in the community.12 They did not come to the meeting in the role of supplicants. James Scott and Squire John Reed, spokesmen for the group, contended that while they had no doubts concerning the successful outcome of any legal action, they were willing to purchase the land if GW offered moderate terms. GW replied that even though he was not eager to sell he would make the group a final offer to sell the entire tract, which he did. After some discussion the settlers decided to take their chances in court.13
Determined now to submit the matter to litigation, GW met with attorney Thomas Smith in what is now Uniontown, Pa., on 21 September. The uncertainties surrounding GW’s case are evident from notes on the case in Smith’s hand:
Brief of General Washington’s Land on Millers Run
23 March 1771 Col. Wm Crawford Surveyed 2813a. on Miller’s Run for George Washington—the right not mentioned.
14 October 1770 John Posey entered into a Bond to Genl Washington Conditiond to Convey his Right to 3000a. under the Proclamation of 1763.
5th 1774 A Patent for 2813a. the above Survey granted to G. Washington but as the Copy of the Survey Returned to the Office by Lewis the County Surveyor, & on which the Patent Issued, is not obtained, the Date of it does not yet appear.
Col. Crawford made Improvements on the Land for General Washington before the adverse Parties claimed (but what those Improvements were does not appear)—1 May 1772. Col. Crawford found six Men on the Land who had built a House & cleared 2 or 3a.—he paid them £5 for their Improvement, & built 4 Cabbins viz. one on each Corner of the Land.14
While GW was gathering the papers pertinent to his case in Virginia, Smith made a preliminary entry for the case in the Washington County court for the December term.15 Following GW’s wishes, Smith had the case entered into the Pennsylvania Supreme Court docket and requested that Bushrod Washington help collect the necessary papers. In the meantime Smith also had ejection notices served on the squatters by the Washington County sheriff. The case was formally removed from the lower court in March 1785 and the papers delivered to the Supreme Court.16 Determined to establish that his claim to the land on Chartiers Creek antedated the settlement of his opponents, GW devoted much time during the next year to marshaling his evidence. He consulted John Harvie, Virginia’s land officer in Richmond, for assistance in retrieving documents from the land office, asked Edmund Randolph for advice, instructed his western Pennsylvania land agent Thomas Freeman to aid Smith “in hunting up the evidence necessary for the prosecution of my ejectments in the Court of Washington,” and sought the testimony of prominent residents in Pennsylvania to support his claims. GW believed that a clear title to the tract “may make a difference of between £3500 and £4000 to me for which I can sell the Land in dispute if I establish my right to it.”17 Much of his correspondence on the case over the next year dealt with what he anticipated his opponents’ arguments would be. It was essential to his case to establish not only that his claim antedated the settlement of the squatters but also that he had fulfilled the obligation of making improvements on the land before they occupied it, a major factor in previous ejectment cases in Pennsylvania courts.18 GW himself was convinced that his opponents would base their case on the fact that they had occupied the land by October 1773. His position was further jeopardized by doubts about whether William Crawford was legally qualified to make the surveys on Millers Run. Crawford apparently had not taken the oaths required by his office. On the other hand, all grants for bounty lands had been confirmed in 1779 by an act of the Virginia assembly.19 In July 1785 GW sent the documents he had collected to Smith with a spirited defense of his legal position in regard to the Millers Run land.20 In addition he drew up a brief of the case giving both his position and that of his opponents:
The ground on which it is presumed the Defendants will place their Defence;
|1st—That Captn Crawford was a great Land jobber, and to effect his monopolies had recourse to many expedients—amongst which, that of using the names of people of influence was one, to cover his claims until he could dispose of the Lands;—by which means it became difficult for strangers, and those who had lately come into the Country, to obtain settlements otherwise than by purchase from him.—That the Country was thereby injured, and emigrts imposed upon.—That as this was known to be the case, no credit could, or ought to have been given to his Notification that the Land belonged to me.||1st—The character, & general conduct of Captn Crawford must speak for themselves,—and these, I conceive, will bear the test of examination.—If he was a forestaller or monopolizer of Land, it is unknown to me.—I had no hand in the speculation.—nor have I a foot of Land in the Western Country that I do not hold under Military rights, except the tract on Yohiogany whereon Gilbert Simpson lives, and a small tract of between two & 300 acres at the Great Meadows; both of which I purchased.—Indeed, comparatively speaking I possess very little land on the Western Waters.—to attempt therefore to deprive me of the little I have, is, considering the circumstances under which I have been, and the inability of attending to my own affairs, not only unjust, but pitifully mean.|
|2d.—But, admitting the fact to be as it has since proved,—yet, my Survey they have said, and it is supposed will contend, was a private one, unauthorized, and consequently of no validity.||2d—This Survey was regularly made by a Person legally appointed for a special purpose—and, as far as his Surveys were covered by Military Warrants and rendered valid by the Surveyor of the County in which they lay, Patents were directed to issue on them, if no Caveats were offered in bar.|
|3d.—That their Occupancy preceeded the date of Captn. Crawfords Deputation, and legal return of the Survey upon which my Patent issues; and consequently not be affected by transactions subsequent thereto.||3d—If this is a fact, & it is essential for them; it rests upon them to prove it.—but it must certainly be unimportant if I can prove my Survey—my possession—my purchase of the first claim to it.—the relinquishment of Col Cannon—the Warnings given them of my Right &ca.—all of which were previous to any claim they can, or do pretend to have.|
|4th.—Supposing (they may say, because they have said it) that my Patent was originally good, yet, my right is forfeited for want of that cultivation and improvement which was required by Law, and which is conditional of the Grant.||4th.—It may be asked how I could improve or cultivate the Land when they had taken possession of it & violently detained it from me?—But the fact is, and it is well known to Colo. [John] Stephenson, Gilbert Simpson, & many others, that I had a number of hands under a manager to whom I paid £100 pr ann, for the express, & only purpose of saving my Lands according to Law—That these people began on the Great Kanhawa where the Lands were first Patented—That they were working upwards therefrom to this very Tract; and would have saved this tract also if the disturbances with the Indians, which forced them to abandon the work (to my great disappointment & loss)—and the unjustifiable conduct of themselves, would have permited it; as I had until June, or July 1777, to comply with the Law.|
|5th.—That one of the Defendants, in behalf of the rest had been sent to the Land Office of this State to ascertn the truth of the Report of my having a Grant of the Land;—but finding no Record of the Patent or Survey, the presumption was, that none had ever been made; and was considered by them as an evidence that my name had only been used by Captn. Crawford to secure it for his own purposes.||5th.—Whether this search was really made, or not, is not for me to determine; but admitting it, it can be no reason why I should loose my right, because they did not, or even could not, discover a record of it. if the fact existed & unequivocal proof thereof can be adduced—of which the Patent is an incontestible one.|
|6th—That they never had any legal notice of its being my Land—nor legal warning to quit it—without which, under the conviction above, they were not bound to regard either.||6th—What really is, or may be construed, legal notice in such a case, is not for me to decide.—The fact is (& I believe it was pretty well known) that Captn. Crawford did business for me in that Country.—that as soon as they had taken possession of the Land, he either in person, or otherwise informed them that it belonged to me; and this without waiting for my orders.—That as soon as I was advertized of the matter, and frequently afterwards, it was impressed upon them; accompanied with assurances, that I should, as soon as it was in my power, assert my Right to it.|
|7th.—That no person was living on the Land when they took possession of it—and that the only House thereon was deserted.||7th—The matter as it has been represented to me, is, that the man whom Captn. Crawford placed on the Land to keep possession, being from home, they took advantage of his absence and built a House so close to the one in wch. he lived, as to exclude the entrance of it.—This is mentioned by Captn. Crawford in a Letter, & probably can be proved by Mr. Mar Stephenson, Morgan and others.|
|8th—That (provided they discover that their possession not prior to the date of the Warrt. to Captn. Posey) if my title is derived from a Military claim and the Warrt. which gives that claim is of subsequent date to their settlement, it can have no operation to their prejudice.||8th.—The Act of 1779, with the measures, which had been previously taken by me,—and my claim before the Defendts had any knowledge of the Land, must obviate every plea of this kind.|
|9th.—Under these circumstances, and this conviction, they took possession; and at great expense have improved the Land; and ought not in Law or equity to be deprived of it.||9th—This argument is pointedly against them because the fact is, & no doubt if proper pains is taken to obtain the evidence, the proof will be, that they knew this Land was reputed to be mine.—That as soon as they set down upon it, they were so informed, and repeatedly warned off, and admonished of the consequences of continuing thereon.—If notwithstanding, from disbelief of the report, or disregard of the several notices given them, they would persist, it, certainly, must be in their own wrong, and not to the loss of my property.—for was the case otherwise, no one could be secure in Lands at a distance—as possession & occupancy wd. set aside the best title, and put legal Right at defiance21|
GW also prepared for Smith a statement of the “ground on which the title of G: Washington to the 2813 acres of Land in Washington County, State of Pennsylvania, is founded; with the evidence in support thereof”:
|1st Colo. Crawford as an acquaintance and friend—and one who had a Military claim under the Proclamation of 1763, which he was desirous of securing—proposed to be at the trouble of looking out the Lands whilst GW was to use his endeavours to obtain the Warrants. accordingly the tract of 2813 acres which is now the subject of dispute, was explored, and allotted for the use of GW; and every measure which could be taken at that early period, was adopted to secure it.||1st—The Letters now sent, and those already in the hands of Mr Smith are declaratory of this.|
|2d—At the request of GW, and subsequent to the appointment of Captn Crawford by the Masters of William & Mary College (by whom all Surveyors were appointed), for the purpose of Surveying 200,000 acres of Land granted to the first Virginia Regiment as a bounty under the Proclamation of 1754, and previous to the Occupancy of the defendts he (Crawford) made an actual survey22 of this tract, and returned a certificate thereof to G.W.||2d.—This Survey was left among other Papers in the hands of Mr Smith—or with Majr Thos Freeman of the County of Fayette; who does business for GW; the latter not having it, tho’ he well recollects to have been possessed of it when he was last in the Western Country.|
|3d—Occupancy of the Western Lands before, at, long after this period, was expressly forbid by the Kings Proclamation:—His Governors instructed not to grant Patents;—and the Surveyors restrained from receiving Entries & locations; except to such as were entitled under the Proclamation of Octr. 1763 for Military Services which was permitted by a subsequent act of the Governor and Council and Warrants granted consequent thereof[.] Every step therefore which the defendants took was in open violation of the Acts of the then existing Government; even supposing there had been no prior claim to the Land in dispute;—but so far as was the case from this, that the Survey of it for GW which was long before they had come into the Country, and consequent of a Military claim which I had purchased from Captn. Posey, as will appear by Bond of the 14th. of Octr. 1770, with wch. the Land was covered as soon as a Warrant could be obtained, must do away every shadow of legal, or equitable claim from them.||3d.—The Bond from Captain Posey is herewith sent, and sufficiently authenticated it is believed—The Warrent from some Papers GW has lately met with, and as he presumes it will appear by the Patent, which is in the hands of Mr. Smith, is not dated until the 25th. of Novr. 1773—How such a lapse of time should have happened betwn the purchase of the Right, and the obtainment of the Warrant, GW is utterly at a loss to acct. for.—If the discovery of this should be made by the defendants it is supposed they will lay much stress on it, as they pretend they came to the Land in Octobr. 1773, which being a month before the date of the Warr, they will say G.W. can derive no benefit therefrom—This should be guarded against.|
|4th.—Some person, or persons, setting up a calim to the Land, or part thereof, within the limits, wch. had been marked; rather than dispute with them, Captn. Crawford purchased for the use & benefit of GW this claim—This was previous to the coming of the Defendants into the Country; or to any knowledge they could have had of the land.||4th.—A Letter which it is supposed was left in the hands of Mr. Smith, from Captn. Crawford to GW, declares this; it not being in the possession of GW. tho well remembered having such as induces this supposition.|
|5th.—Colo. Cannon, a Gentleman of Reputation, who lives in the Country, and in the vicinity of the disputed Land—took possession of it, and made some improvements thereon; but upon discovering marked trees—and upon tracing them, finding a regular Survey, well bounded; and understanding upon enquiry, that the Survey was made by Colo. Crawford for the use & benefit of GW he quit it.—This also was antecedent to any view, or knowledge the Defendants had of the Land.||5th.—GW having received this information from Colo. Cannon himself, there can be doubt of his giving testimony thereto.—as also, that it was well known in those parts at the time the Defendants took possession of the Land, that it belonged to GW.|
|6th.—They were informed of this first instance—repeatedly & admonished afterwds.—& ordered to leave the Land, acknowledge themselves Tenants, or abide the consequences; as GW. was determined to prosecute his Right thereto as soon as circumstances would permit him to do it.||6th.—The Defendants could not indeed did not deny to GW having knowledge of these things.—they confessed that they had seen advertisements. posted on the Land giving this information; but may deny it all or be silent thereafter at the tryal.—Colo. Crawfords letters are expressive of it, and he, and his Brother Vale. were well knowing to it.—however, as they are both dead—the most likely persons to prove it now are Colo. John Stephenson, Marcus Stephenson, Colo. Cannon, Mr. Morgan (who Surveyed under Captn. Crawford) Mr Leet, Geo. McCormick—Gilbert Simpson Captn. [Van] Swearingin Cap: [Matthew] Ritchie & others, some of whom were connected with & aiding & assisting Crawford at those times.|
|7th.—It was currently reported, and as generally believed to be Land belonging to GW as the nature of the thing would admit of before, at the time, and after the Defendants had taken possession of it (which by their own accts was not until Octr 1773) no plea of ignorance therefore can possibly be offered in justification of their proceedings.|
|8th.—This Land was not only surveyed in the manner, and under the circumstances before mentioned; but improvements thereon were made for the use & benefit of GW & an expence incurred before the Defendants ever saw it. on his acct.||8th.—Colo. Crawfords letters declares this expressly, and it is believed that some one, or more of the persons named above will be able to prove it.—With respect to one Cabbin, there can be no doubt because it remains there to this day unless it has been removed, or destroyed since the 20th of September last; when, in Company with Col Cannon, Captn. Swearingen Captn. Richie Mr. Geo: McCormick & others GW was on the Land, saw another House built so close to it as, in a manner, to exclude the entrance into it; and heard them acknowledge that it was on the land before they cam to it.|
|9th.—In the Spring of 1774 (If memory serves) Captn. Crawford received a further appointment from the Masters of Willm. & Mary College to be Deputy Surveyor of Augusta County under Thos. Lewis Esq (in which County the Land then lay); immediately after which, a certificate was returned in due form to the Secretarys Office, reciting the Military right under which it was claimed—where upon a Patent, with the Seal of the Colony & the Governors issued without any opposition, in June, or July of the same year; which was as early as any legal Surveys were made, or could be made, in that Country.—but this Survey, with the proceedings antecedent thereto which were of record, being lost, nothing but presumptive proof can be drawn from thence.—this however must be as strong as any presumptive proof whatever can be, because we must suppose that public offices act agreeably to the Laws and Constitution of the Country in which they are instituted, or by established Rules & regulations of their own when these are silent—The Patent then (which. is yet in existance) being the last act for transfering the right of the Crown, to doubt the regularity of the proceedings in which it was founded, is to cha: the Land Office, and Executive for the time being of this state, with maladministration.||9th.—Captn. Crawfords Commission to be Deputy Surveyor of Augusta, is to be found either in the Hands of Mrs. Crawford, his widow—or Mr Bradford’s who has charge of his Papers—
The certificate from the Register of the Land Office, declares that the Survey with many other Papers fell into the hands of the enemy and were destroyed: no recourse therefore can be had to any records herein antecedant to the Patent; which by being in the possession of GW was saved, and has been put into the hands of Mr. Smith.
|10th.—These proceedings being recognized by an Act of the Virga. Assembly entitled “An Act for adjusting & settling the titles of Claimers to unpatented Lands under the present & former Government previous to the establishment of the Commonwealths Land Office” the first claim therein declares expressly, that all Surveys made before the 1st day of Jany 1778 by the Surveyor of a County under either of the rights which are therein recited, and against which no Caveat had been entered, should be good & valid—and moreover, that Military locations by actual Surveys made under special commission, should become valid upon taling out Warrants and resurveying according to Law.
All of which should have been done; but in the case of GW. it was altogether unnecessary; inasmuch as the legal forms had all been complied with four years before the passing of the Act.
|10th. The authenticated act (by the Seal of the Commonwealth of Virginia, and signature of the Governor) herewith sent, is very expressive of the case of G.W.|
|11th.—No Caveat was evr. entered by the Defendants in bar to the right of GW, with a view to prevent the issuing of a Patent;—nor has any steps ever been taken by them (known to GW) to obtain the Land themselves,—either in the State of Virginia or Pensylvania—Putting their whole dependance upon a violent obtrusion, made under as unfavorable circumstances as can well be conceived.||11th.—The Register of the Land Office has declared that no Caveat was ever entered in the Ld. Office of this State by the Defendants—That no application appears from the records, to have been made to the Commissioners who were appointed by the Act of Assembly to hear & determine disputed titles—And that no location thereof has ever been made in this State by them, or any body in their behalf.|
|12.—The letter from Mr. [John] Harvie, Register of the Land Office deserves particular consideration, as it points to the Rules and Regulations of that Office, & gives much useful information.||12th—This letter is sent and may be used as occasion shall require.|
|13th.—The agreement between the States of Virginia & Pensylvania respecting territorial boundary—saves the private property, and rights of all persons who may have acquired titles under either Country respectively, previous to the ascertaining and running such boundary, altho’ they should be found to fall within the other.||13th.—An authenticated record of this agreemt, is sent.|
During the summer of 1785, GW continued to prepare his defense in anticipation of the Pennsylvania circuit court hearing. Even without complete documentary proof, he wrote Edmund Randolph in August, “the matter is so clear, in my judgment, as not to admit of dispute before an impartial Jury; but an impartial Jury I do not expect—& much less since I have heard that the high Sheriff of the County (lately chosen) is of the fraternity of my competitors.”23 By early September GW’s annoyance with the settlers had increased to the point that when he heard what proved to be an unfounded rumor of their planning to move off his land, he instructed Smith to seek punishment for these “defendants as willful & obstinate Sinners.” Because “they have withheld the Land from me ten or twelve years after all the admonition I could give, & the favorable offers which have been made them—& finally have put me to the expence & trouble of bringing & supporting Ejectments,” he wrote Smith, “it is my wish & desire, whether they leave the land voluntarily, or are compelled to do so by a course of Law, that you will sue them respectively for Trespasses, rents or otherwise as you shall judge best.”24
In the summer of 1786, still in pursuit of evidence for the upcoming hearing before the Pennsylvania circuit court, GW made the dismaying discovery that Posey’s warrant was dated 25 Nov. 1773, “posterior, according to my opponants acct to their settlement.” Even so, and in spite of the disappearance during the war of a number of legal documents supporting his claim, GW remained confident enough of the outcome to request Smith to offer the lands for sale subject to the success of the ejectment proceedings. The lands “have been so unproductive of every thing but vexation and trouble,” he wrote Charles Simms in September 1786, “that I am resolved to sell them at long or short credit, as may best suit the purchaser, provided I can get near the value of them.” Noting that the tenants at their meeting with GW in September 1784 had chosen litigation instead of accepting his offer of twenty-five shillings per acre, “they must give more now if I oust them.”25 The nisi prius court, presided over by Pennsylvania Supreme Court justice Thomas McKean who was riding circuit, was set to try the case of Washington v. James Scott et al. at its September 1786 session in Washington County, with Hugh Henry Brackenridge appearing for the settlers. GW had hoped to attend but a brief illness prevented it.
The ejectment cases were heard on 24, 25, and 26 October 1786, after which Smith wrote: “I have the very great pleasure to inform you that Verdicts have been given in your favour in every one of them.” Smith, having decided that James Scott was the leader of the settlers, had arranged for Scott’s case to come up first. Each of the plaintiffs insisted on having his turn in court. Indeed, Smith wrote, “each would have demanded a separate trial; but as I had consolidated the Ejectments against these Dependants, they were obliged to try them all together, & the trial did not last long.” Many of the jurors, he was convinced, would have preferred to find for the defendants. Smith’s astute maneuvers in jury selection had aided GW’s cause, which was also immeasurably strengthened by Thomas McKean’s refusal to allow the question of improvements on the land to be entered as evidence in the proceedings. Though elated at his victory, Smith retained a certain sympathy for the settlers: “I believe that the Defendants in the Ejectments will be with you soon (to) endeavour to do what they ought to have done when you made them the Offer—I verily believe that it was more their misfortune than their fault that they then rejected it. You have now thirteen Plantations—some of them well improved—I take it for granted that the improvements increase the value of the Land much more than all the expences of the Ejectments—those who mad[e] them are now reduced to indigence—they have put in Crops this season, which are now in the ground—they wish to be permitted to take the grain away—to give this hint may be improper in me—to say more would be presumptuous.”26
GW could now afford to be magnanimous. He wrote George McCarmick in November: “Altho’ those people have little right to look to me for favor or indulgences, & were told, if they run me to the expence of a Law suit, that they were not to expect any; yet as they are now in my power, it is not my wish to intention to distress them more than the recovery of my property obliges. They may therefore continue on their respective places either as Tenants at an equitable rent which shall be deemed reasonable between man & man, or as purchasers, if the terms can be agreed on between us.” In the end GW also allowed the tenants credit for part of their crops but not for the improvements they had made.27
During the 1790s GW continued to lease his Millers Run lands to new tenants, but difficulties in securing dependable agents and his growing conviction that distant land was “attended more with plague than profit” led him by 1794 to offer his Millers Run land for sale at four dollars an acre. In 1796 he sold the land to Col. Matthew Ritchie. Unlike some of the purchasers of GW’s other land, Ritchie made prompt payments. After Ritchie’s death in February 1798, considerable contention arose between GW and Ritchie’s executors relating to payments and other matters concerning the land, and at the time of GW’s death in December 1799 there were still payments due on the Millers Run land.28
1. See Bond of John Posey, 14 Oct. 1770; and Vi: Va. Colonial Land Patents (Grants), 1623–1774, Book 42, pp. 516–18. See also GW’s letter of 17 Feb. 1774 to Thomas Lewis, surveyor for Augusta County, requesting Lewis to patent the tract. A resurvey of the Millers Run land during the 1790s indicated the area to be slightly more than 3,000 acres (Land Memorandum, 25 May 1794, and GW to Presley Nevill, 16 April 1796). For GW’s acquisition of bounty lands both for his own services and through purchase from other veterans, see the source note in GW to Samuel Lewis, 1 Feb. 1784.
2. See Crawford to GW, 2 Aug. 1771, 1 May 1772, 29 Dec. 1773, and Thomas Smith’s notes for a brief in GW’s ejectment case, 1784 (NhD). One of the men who moved onto the Millers Run land was John Canon of Washington County who owned additional land on Chartiers Creek. See GW’s brief, printed here.
4. See Crawford to GW, 12 Nov. 1773, reporting George Croghan’s role in encouraging squatters on GW’s property. See also Bothwell, “The Astonishing Croghans,” description begins Margaret Pearson Bothwell. “The Astonishing Croghans.” Western Pennsylvania Historical Magazine 48 (1965): 119–44. description ends 138. Local tradition holds that at least some of the squatters had originally purchased their land from Croghan. See William M. Farrar to Boyd Crumrine, 13 Sept. 1882 (PWW: Crumrine Papers).
5. Diaries description begins Donald Jackson and Dorothy Twohig, eds. The Diaries of George Washington. 6 vols. Charlottesville, Va., 1976–79. description ends , 2:295. For GW’s account of his meeting with Croghan, see ibid., 292–94.
6. Croghan to Joseph Wharton, Jr., 25 Oct. 1770, in Wainwright, George Croghan description begins Nicholas B. Wainwright. George Croghan: Wilderness Diplomat. Chapel Hill, N.C., 1959. description ends , 277.
9. See Schoepf, Travels in the Confederation, description begins Johann David Schoepf. Travels in the Confederation [1783–1784]. Translated and edited by Alfred J. Morrison. 2 vols. Philadelphia, 1911. description ends 1:221, and Wilkinson, “Land Policy and Speculation in Pennsylvania,” description begins Norman B. Wilkinson. “Land Policy and Speculation in Pennsylvania, 1779–1800.” Ph.D. diss., University of Pennsylvania, 1958. description ends 62-75.
12. Washington County Supply Tax—1781, 715–17, 729, 758, 761–62, 768, 774. Among the tenants attending the meeting were James Scott, John Reed, William Stewart, Thomas Lapsley, Samuel McBride, Brice McGeehon (McGeehan), Thomas Biggert, David Reed, William Hillis, James McBride, Duncan McGeehon, Matthew Johnson, and John Glenn (Diaries description begins Donald Jackson and Dorothy Twohig, eds. The Diaries of George Washington. 6 vols. Charlottesville, Va., 1976–79. description ends , 4:28–30).
13. GW offered the settlers “the whole tract at 25/. pr. Acre, the money to be paid at 3 annual payments with Interest; or to become Tenants upon leases of 999 years, at the annual Rent of Ten pounds pr. ct. pr. Ann. The former they had a long consultation upon, & asked if I wd. take that price at a longer credit, without Interest, and being answered in the negative they then determined to stand suit for the Land” (ibid., 28). Local tradition holds that GW replied with some temper, “asserting that they had been forewarned by his agent, and the nature of his claim fully made known; that there could be no doubt of its validity, and rising from his seat and holding a red silk handkerchief by one corner, he said, ‘Gentlemen, I will have this land just as surely as I now have this handkerchief’” (Crumrine, Washington County, description begins Boyd Crumrine. History of Washington County, Pennsylvania, with Biographical Sketches of Many of Its Pioneers and Prominent Men. Philadelphia, 1882. description ends 858–59).
14. Dartmouth College, Hanover, New Hampshire. A note attached to Smith’s draft states: “Charles Morgan (came to me) can prove that he was with Crawford when he surveyed the Land—began a Cabbin in April 1771 and saw Crawford give his Note for £5 to Thomas Crooke Esqr for his Improvements—James Scott Brother to Thomas lives on the Plan[tation] on which a Cabbin was built by Crawford and Covered 14 feet Square—can prove Notice to settlers.”
15. See Washington County Court, Appearance Docket, January 1782–June 1792, cause no. 110, p. 195; and Smith to GW, 9 Feb. 1785. The words “H.B. appears” on the appearance docket probably indicate that Hugh Henry Brackenridge (1748–1816), the prominent Pennsylvania lawyer who defended the squatters when the case appeared before the Pennsylvania Supreme Court, also acted for the settlers in the county court. Brackenridge was already well known as the author of a number of plays extolling the American military character. After studying law with Samuel Chase in Annapolis, he moved to Pittsburgh in 1781 where he opened a law practice and established a newspaper. A copy of the ejectment notice and a record of the case, both in Smith’s handwriting, are in NhD. According to Smith’s notes, witnesses for GW were “Charles Morgan, Chartiers[,] Thomas Bond Surveyor, Catfish[,] Mark Stevenson-Stewarts Crossings[,] Zachariah Stedham, Montains run[,] James McCormick, Berkeley County V.[,] James Bauercraft Raccoon[,] John Cannon Esqr.[,] [and] Col. David Shephard.” For GW’s attempts to marshal witnesses in his behalf, see his letter to Charles Simms, 22 Sept. 1786.
17. GW to Freeman, 11 April, and GW to John Fitzgerald, 23 July 1785. See also GW to Harvie, 19 Mar. 1785, to Freeman, 16 Oct. 1785, from Harvie, 22 April 1785, to Smith, 28 July 1786, and to Charles Simms, 22 Sept. 1786. For the difficulty of securing supporting documents, see Edmund Randolph to GW, 29 July 1785.
18. For Smith’s observations on the disposition of several early cases in which improvements had been offered as a defense, see his letter to GW, 17–26 Nov. 1785. GW’s best information regarding the legal status of the land came from John Harvie (see Harvie to GW, 22 April 1785).
19. See GW to Edmund Randolph, 13 Aug. 1785. In the spring of 1775 rumors had circulated in Virginia that Crawford, who ran the bounty land surveys for the Virginia Regiment, had not qualified as a surveyor. GW wrote Lord Dunmore, governor of Virginia, to ask about the rumor, and Dunmore replied that there was indeed some evidence that Crawford had failed to qualify: “if this is the Case the Patents will of Consequence be declared Null and void” (GW to Dunmore, 3 April 1775, and Dunmore to GW, 18 April 1775). For the assembly’s legislation on the bounty lands, see “An Act for adjusting and settling the titles of claimers to unpatented lands under the present and former government, previous to the establishment of the commonwealth’s land office” (10 Hening description begins William Waller Hening, ed. The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619. 13 vols. 1819–23. Reprint. Charlottesville, Va., 1969. description ends 35–50).
21. Typescript, PWW: Crumrine Papers.
22. The text of this brief is taken primarily from a typescript in PWW: Crumrine Papers. However, the material from the beginning of the brief to the words “actual Survey” is taken from a facsimile in GW’s hand printed in Konkle, Thomas Smith, description begins Burton Alva Konkle. The Life and Times of Thomas Smith, 1745–1809: A Pennsylvania Member of the Continental Congress. Philadelphia, 1904. description ends facing page 176.
24. GW to Smith, 10 Sept., 7 Dec. 1785. For Smith’s attempt to dissuade GW from this course on the ground that it would elicit an adverse reaction from the jury who might well believe the defendants “rather unfortunate, than blameable,” see Smith’s letter to GW, 17–26 Nov. 1785. For GW’s somewhat grudging agreement, see his reply to Smith, 7 Dec. 1785.
26. Smith to GW, 7 Nov. 1786. See also Smith to GW, 17 Feb. 1787, and Rowe, Thomas McKean, description begins G. S. Rowe. Thomas McKean: The Shaping of an American Republicanism. Boulder, Colo., 1978. description ends 193–94. James Ross assisted Smith at the trial, and on 4 Mar. 1788 GW authorized from funds in Smith’s hands a payment of £50 to each man “as a Compensation for yourself & Mr Ross for your trouble &c in prosecuting my Land suit in Washington Cty Pensylvania” (Ledger B description begins Manuscript Ledger Book 2, 1772-93, in George Washington Papers, Library of Congress. description ends , 259).
27. GW to George McCarmick, 27 Nov. 1786. See also GW to Presley Nevill, 27 Nov. 1786, and GW to John Canon, 16 Sept. 1787. Writing in 1814, Hugh Henry Brackenridge commented on this aspect of the case: “General Washington after the peace of 1783, instituted ejectments, and succeeded in recovering under a prior Virginia claim, a large tract of country containing a number of settled plantations which had been defended and cultivated during the Indian depredations upon that quarter, at the expence of life in many instances. It was sufficiently distressing to be obliged to leave their cultivated fields, meadows, orchards, and buildings. The general did not offer to make compensation for these. Nor in strict law, was he bound to do so. He could not be considered as under more than an imperfect obligation. It is possible he might have thought of this, had he not taken it for granted, as he had a right to do, that the state of Pennsylvania who had taken away the property from the settlers, by ceding to Virginia, would have provided a compensation. This by strict law the state was bound to do. For though the ceding the jurisdiction is at all times a right of the society; yet the exercise of the dominium eminens, could not, under the constitution of 1776, or under the present, be justifable without providing a compensation. . . . But nothing of this was heard of with regard to land taken away by the Virginia claims in this disputed territory. And at this late period, it is not probable that we shall hear more of it. It remains now, not a matter of legal discussion, but of history” (Brackenridge, Law Miscellanies, description begins Hugh Henry Brackenridge. Law Miscellanies: Containing an Introduction to the Study of the Law . . .. 1814. Reprint. New York, 1972. description ends 257–58).
28. GW to James Ross, 16 June 1794. See also James Ross to GW, 20 Aug. 1795, GW to Ross, 29 Aug. 1795, Alexander Addison to GW, 17 May 1798, GW to Addison, 3 June, 29 July 1798, 4 Mar., 24 Nov. 1799, and Pittsburgh Gazette, 3 Mar. 1798. The deed of 1 June 1796, signed by GW and Martha Washington and conveying the property to Ritchie for $12,000, is in the Washington County Court Deed Book 1, V, p. 324. GW’s executors secured judgment against the mortgage in 1801 in the Washington County court and the land was sold in 1802 by the county sheriff to Alexander Addison, one of Ritchie’s executors (statement in PWW: Crumrine Papers; see also Crumrine, Washington County, description begins Boyd Crumrine. History of Washington County, Pennsylvania, with Biographical Sketches of Many of Its Pioneers and Prominent Men. Philadelphia, 1882. description ends 859).