To Thomas Smith
Mt Vernon, 14th July 1785.
Your letter of the 9th of Feby was long on its passage to me; but my answer would not have been delayed ’till now, had not much time been spent in obtaining the several enclosures herewith sent you: a very necessary voucher however, viz.—the British Kings proclamation, properly authenticated, forbiding the settlement of the Western Lands, in defiance of which the Defendants took possession of the Land which was surveyed for military service, is not yet come to hand—but shall be sent as soon as it does.1
The signature to Poseys Bond has the best proof of the hand writing I can obtain without incurring much trouble & expence: there are numbers in this part of the Country, where he formerly lived, who are well acquainted with his hand writing; but these are far removed from the Executive of the State, or any of the judges of the Supreme Court of this Commonwealth. To me, I confess the proof seems unnecessary; for in my judgment there can be no higher evidence of the authenticity of the Bond, than the recognition of it in the Grant which was made in consequence; & which, if I mistake not, expressly declares that it is granted to me as Assignee of John Posey; consequently this Government must have been satisfied of the legality of the Assignment, & such as would warrant the Patent granted me thereon.2
I transmit you the Act of our Assembly passed in the session of 1779, properly authenticated, in which is included all the Law relative to the present subject: in this you will find upon what footing settlement & pre-emption rights are placed; & what are the requisites necessary for rendering them valid.3 It is very certain the Defendants have not taken those necessary steps pointed out by the Law, in order to give them a title by settlement or pre-emption: they knew that the Land had been surveyed for me; that it was always called mine; that one Cabbin if no more was built upon it when they came there, & they were repeatedly forewarned from settling themselves there during the life of Mr Crawford. Being thus apprized that their claim was contested, they should have submitted it to the decision of the Commissioners sent out to that Country for the special purpose of adjusting all such disputed titles; & altho’ the jurisdiction of these Commissioners only extended to unpatented Lands, yet such a submission was necessary on the part of the Defendants, that they might obtain Certificates & act agreeably to the direction of the Law: as they failed to do this, I conceive they have precluded themselves from getting up a title by occupancy at this day: I say they failed to make this submission; because as I was never summoned to litigate their Claim, any proceeding therein without such a process would have been illegal.
I expect that one objection to my title will be, that this Land was not surveyed by a County Surveyor, but only by one invested with a special commission for surveying the 200,000 acres which were given as a bounty to the 1st Va regiment. But you will find that my case comes fully within the first Clause of the Law;4 & as this Survey was covered with a Military warrant, such as is mentioned in the Act—no person could more legally have made it than Mr Crawford. I will observe here, that at the time this survey was returned to the Office—Mr Crawford was Deputy surveyor to Mr Lewis.5 You will observe by a subsequent clause in the Law, that all locations made by Officers and Soldiers upon the Lands of actual settlers, shall be void; but this cannot operate against me for several reasons: in the first place it is confined merely to Locations, & cannot extend to Patents; secondly, admitting that my survey was made lawfully, then it is evident that instead of being intruded upon—the Defendants themselves were the intruders; and thirdly, setting my survey & Patent out of the question, I was the prior occupant and entitled to at least 1400 acres, admitting only one Cabbin to have been built; altho’ I believe, & Capt. Crawford in letters which I left with you expressly declares it, there were more; so that whichever way you view their title, it appears to be defective. From what cause I know not, but I believe Capt. Posey’s warrant is dated subsequent to the return of the Survey made by Mr Crawford, and if I remember right the recital in the Patent which you have makes this appear: I apprize you of this lest any handle should be made of it by your Opponents.
The only difficulty which can arise in the prosecution of the ejectments, in my conception (if my legal title shou’d be thought insufficient, which I scarcely think possible) is to prove the extent of my improvement before the Defendants took possession of the Lands, & the warnings wch they received afterwards to quit it. Colo. Crawford who transacted my business in your County, or his Brother Val. could have placed these matters in a clear point of view, as I dare say many others are able to do, if I knew who to fix upon & how to come at them; but never having an idea that it was necessary, & the removal of persons &c., may give some trouble.6
To ease you as much as I am able of this, I have in a paper enclosed, put down the ground & supports of my title under all circumstances as they have occurred to me; & the plea which I suppose will be urged in behalf of my Opponents in opposition thereto.7
I feel myself under great obligation to Mr Wilson for signifying a readiness to serve me in this suit—because I am satisfied motives of friendship more than those of interest were at the bottom. His attendance in Congress must now render this impracticable if it were ever so necessary; but to me the case seems so clear & self evident, that I think nothing more is necessary but to state facts: however, as you understand the decision of your Courts better than I do, I leave it wholly to yourself to call in assistance or not, & from whom you please. I should be glad to know when you think the cause will come to issue: if I could be morally certain of the time & nothing of greater importance should happen to prevent it, I would be in the Western Country at that time. I am &c.
P.S: Since writing the above I have received an attested Copy of the Proclamation alluded to in the body of this letter, which with the letter enclosing it, from our Attoy General, I send.8 On a cursory reading of it, (for I was obliged to enclose it almost in the same instant I received it) it may be doubted, I think, whether military Locations beyond the sources of the rivers running into the Atlantic, do not come under the general restriction: to remove this objection, if it should be made, I will endeavor to obtain an attested copy of an order of the Governor & Council of this Dominion, recognizing the right of the Troops of this State, to Lands under the aforesaid Proclamation; & directing surveys thereof to be made on the Western Waters; tho’ I fear it will be difficult to come at, as I have understood that the records of the privy Council had fallen into the hands of the Enemy, or were otherwise lost.9 G: W——n
2. John Posey transferred to GW his right to claim 2,000 acres under the royal Proclamation of 1763, and it was under Posey’s right that GW secured a patent to most of the Millers Run tract. See Bond of John Posey, 14 Oct. 1770. GW was to discover later that Posey’s warrant was dated as late as 25 Nov. 1773 (GW to Smith, 28 July 1786).
3. “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).
4. GW is probably referring to the provision on the second page of article 1 of the act cited in note 3: “that all officers and soldiers, their heirs or assigns under proclamation warrants for military service, having located lands by actual surveys made under any such special commission [as William Crawford’s], shall have the benefit of their said locations, by taking out warrants upon such rights, resurveying such lands according to law, and thereafter proceeding according to the rules and regulations of the land office.”