From John Harvie
Richmond [Va.] April 22nd 1785
Upon my Researches into the Ordinances of Convention and Acts of Assembly to see if I could discover any General principle in either, Effective of your Title to the 2813 Acres of patented Land, that is the present Subject of your Ejectments,1 I can find no Law or Ordinance, in my Opinion Materially applicable, except the Act of Assembly that pass’d in the year 1779, Intitled an Act for Adjusting and Settling the Title of Claimers to Unpatented Lands under the present and former Government previous to the Establishment of the Commonwealths
Land Office—in the first Section of which Act, Surveys upon all Military Rights are declar’d good and Valid, in a Subsequent clause indeed of the same Law it is provided that where Locations upon Military Warrants shall Interfere with the Rights of Settlers, in such Cases the latter shall be prefer’d, but this Rule is Specially confin’d to Locations—and cannot apply to Warrants Carry’d into Effect by actual Survey, and much less so to Patents which have been Regularly Obtain’d under our former Government; for it is well known to you Sir, that the King of Englands Instructions to his Governors in Virginia in and after the year 1763 restrain’d them from Granting or Signing patents for any Lands on the Western Waters—except upon Surveys for such Lands as was given as Bountys for Military Service, and from the date of the proclimation in 1763 untill the time of opening the Commonwealths Land Office in the year 1779 No County Surveyor could receive or admit an Entry on his Books for such Lands upon any other Right, and so farr from the Settlers on the Western Waters being Countenanced by Government they were by repeated proclimations Order’d off from those Lands—wherefore Titles by Occupancy was in no Instance whatever Recognized by the Laws of Virginia till the Convention of 1775—when Occupants were put on the footing of Freeholders as to Electing or being Elected Members of the Convention—in the years 1776 & 1777 other Resolutions pass’d still farther declaratory of their Rights and Subjecting them to the payment of Taxes for such Lands as they had Mark’d out as the Limmits of their respective claims in right of Settlement—in the year 1778 another Resolution pass’d forbidding any farther Settlement of the Western Lands untill a Land Office for the Commonwealth should be Establish’d—in the year 1779 the Commonwealths Land Office was Open’d and as a Variety of rights had taken rise upon the Western Waters from the time the Governors had refus’d to Sign patents, the Law under the Title I have first mention’d preceded the Land Law, by which all such Rights as appear’d to be just and Reasonable were Confirmed & Establish’d, & others declar’d Void & of no Effect—but where Lands had been Patented under the former Government, the Legislature most Carefully Avoided any Interference, not Conceiveing they had the Power to destroy a Title Convey’d by the Crown whose perogative it was to Grant those Lands when & to whom the King should think proper—and here it may not be amiss to observe that by the Laws of this Country when a Legal Title is Vested by Patent, such Title cannot ever be call’d in Question in the Courts of Common Law, but the party who Supposes himself Injur’d must Resort to the Chancery Court for Relief, the previous Title Act, directs the Appointment of Commissioners to adjust the claims to all Unpatented Lands lying on the Western Waters (patented Lands not comeing under their Jurisdiction) which Commissioners were also Impower’d to hear and determine all Disputes between Partys Contending, and upon a Right of Settlement founded upon a Residence of twelve Months or raiseing a Crop of Corn in the Country, being Establish’d, the Commissioners were directed to Grant a Certificate of such Right to the person Intitled—which Certificate was Sufficient authority for the Surveyor of the County where the Lands were to lay off and Survey the Land therein Described, and upon a Survey therefor being return’d to the Land Office, and lying Six Months open to the Caveat of any person who should lay claim to the whole or any part thereof—if no Caveat should be Enter’d in that time a Grant was Ex Officio to issue to the person in whose Name the Survey was made—such Settler was also Intitled to the preemption of 1000 Acres adjoining his Settlement upon his first paying the price that the State demanded for other Lands Sold by them—and takeing from the Land Office a Warrant under the Register⟨s⟩ Hand and Seal for the same, which Warrant should Intitle him to an Entry with the County Surveyor where the Land lay—and upon a Survey being Return’d and lying in the Office as above mention’d a Grant shall issue—As the Commissioners for the District of Monongalia Yohogany and Ohio had several meetings and Continued to sit till they went through all Business that came before them under their Commission—putting your patent Intirely out of the Question—the Occupants who are Contending with you could no otherways acquire Titles to those Lands than by Submitting their Rights to the Commissioners and Obtaining from them Certificates Agreable to the directions of this Law, and if they could have made such Submission, as your first Settlement and Improvement preceeded theirs your Right to 1400 Acres of the tract must have been prefer’d—but no such Submission could have been by them Legally made as the patent is Conclusive as to the Title—and as your Opponents set up a Right to the Land the Law was Open to them, for they had it in their Option to Enter a Caveat against a patent issueing to you, till the Matter of right should be determin’d between you, and as they fail’d to do this, I must again observe that your Title under the Patent in a Court of Common Law seems to me to be Unimpeachable—what I have here Stated to you are the Laws, Rules & Regulations for Acquireing Landed property upon the Western Waters in this State, and by which I Conceive your Title must be determin’d, as the Resolution I now Inclose you fixing a Temporary Boundary between the States of Virginia and Pensylvania—which was Consented to and Adopted by the State of Pensylvania[,] Saves the private property and Rights to all persons who may have Acquir’d Titles under either Country Respectively previous to the Asscertaining and Running such Boundary although they should be found to fall within the Other—thus Sir have I endeavour’d to give you Information respecting the Land Rights of Settlers or Occupants on our Western Waters and wish Sincerely that it may in any Measure Illustrate the permenancy of your Title—the Law of 1779 that I have particularly Refer’d to, if you have it not—may I immagine be Easily obtain’d from any Gentleman of the Law in your Neighbourhood[.] however if this should not be the Case, and either you, or Mr Smith who Advocates your Title, should think it Necessary to be produced on the Tryal, I will at any time forward it to you, I have to Lament that the Original Survey upon which your Patent issued with a Number of other Publick papers fell into the Hands of the Enemy and were destroy’d by them, wherefore the date of Capt. Poseys Warrant assign’d to you cannot be asscertain’d in the Land Office—if any farther Enquiry dureing the prosecution of this Business should Occur to you, I beg that you will at all times Command my Attention to it without Reserve—for believe me Sir that it will ever afford me the highest Gratification to be in any Respect whatever Useful or Convenient to you. I have the Honour to be Sir Yr Most Obt & Very Humble Servt
ALS, NhD; copy, in George Augustine Washington’s hand, DLC:GW.
1. For GW’s ejectment suit against the squatters on his Millers Run (or Chartiers Creek) land, see the editorial note in Thomas Smith to GW, 9 Feb. 1785.