Gunston-Hall Novemr. 9th 1791.
Your Favour of the 4th. did not come to my Hands, until last Night; and the Post leaving Colchester early to-morrow Morning does not leave me Time to answer you, upon so important a Subject as the Indiana Claim, either to your Satisfaction, or my own. I have search'd all my papers, endeavouring to find my former Argument in the Assembly; when I was appointed to collect the Evidence, & manage this Business, on Behalf of the Commonwealth; which (if I cou'd have found it) wou'd have given the fullest Information; but I imagine I must have lent it to some Member of the Assembly; who has never returned it; and conceiving the Matter, after so full an Investigation, and positive Determination, as it then had, for ever at an End, I was the less careful in preserving my Notes & Papers. Several Depositions were then produced; & some Witnesses examined at the Bar of the House, proving the mysterious & Clandestine Conduct of Sir William Johnston the King's Agent at the Teaty of Fort Stanwix, when the Indiana Compy. obtain'd their Deed from the Indians. The Council Books were also produced, in which were many Entries previous to the Indiana Company's Purchase, for Lands much further to the Westward. The Indiana Company's Deed from the Indians was set aside, and a Declaratory Act passed upon the Subject, as well as my Memory serves me, in the May Session of 1779, principally upon the following Points.
1st. The Purchase of the same Lands from the six Nations of Indians, at the Treaty of Lancaster, in the Year 1740, for the use of Virginia, & paid for with our Money. The Book containing the Record of this Treaty & the deed of Purchase was then produced; but I have understood, has been since destroyed, as well as all the other Indian Treaties, made here under the King's Government with the Books & Papers of the Council and of the Committee of Safety, when General Arnold's Troops burn't the Foundery at Westham; in which they had been placed, upon the Enemy's marching towards Richmond.
2dly. Because the Six Nations, who originally claimed the Lands by Conquest, had lost their Title (even if they had not sold them at the Treaty of Lancaster) by the same Means by which they first gained it—Conquest—their Tributaries & Tenants, the Shawanese & Delawares, with a Mixture of the six Nations, having been expelled, & driven over the Ohio (from whence they never return'd) and the Lands on this Side the Ohio conquered, in the War which happened a little before the Indiana Company's Purchase.
3dly. Independent of the above Reasons; the Deed to the Indiana Company, by the Laws of Virginia ought to have been recorded (like all other Deeds) either in the County where the Land lay (Vizt. in Augusta, which was then the frontier County of Virginia) or in the general Court; that for want of this, the Deed (if there had been no other objection) was void, as to all subsequent Purchasers, and that the Settlers upon the Land under Virginia Titles (of which there were a great Many before the Deed was recorded in Augusta) were, in the equitable Construction of the Law, to be considered as Purchasers.
4thly. Because the Consideration of the Deed was a Compensation to the Indian Traders, for the Losses they had suffered; and it was thought they had no more Right to require Compensation, than a Merchant who had his ship taken by an Enemie's Privateer, or any other Sufferer in the common Calamities of War.
5thly. Because the Traders to whom the Indian Deed was made, being every one of them citizens of Pensylvania, from whence their Trade with the Indians was carryed on, if they had been entitled to Compensation at all, ought to have had such compensation out of Lands within the chartered Territory of Pensylvania (for whose Benefit the Trade had been carryed on, by her own Citizens) and not out of the Lands of Virginia; and this appeared in the Strongest (or if I may be allowed the Expression, more bare-faced) Point of View; as Pensylvania had, at that same Treaty of Fort Stanwix, made a large Purchase, from the Indians, of Lands within her own Charter. I presume the Assembly can not regularly give any Decision in favour of the Indiana Company, without repealing the before mentioned declaratory Act & the Consequences of such a Repeal may extend much further, & produce Effects which may not be at first foreseen. Among other things, it wou'd cetainly open a Door to the revival of Colo. Henderson & Company's claim to Kentucky; nor can any Man tell where it wou'd end. In my humble Opinion, the Matter's having been fully invistigated, the Indiana Company heard by their Council at the Bar of the House, a dozen Years ago; when there was much better Evidence, both written and oral, than can now possibly be had, and a solemn Determination then made, is a sufficient Reason against giving any Decision upon it now; when some of the Witnesses are dead, some removed we don't know where, and when even the Record Evidence has been destroyed, in the Events of the late War. The present Applicant, Mr. Morgan, is entitled to as much Justice as any other Man; but surely a Man, who has endeavoured to depopulate the United States, by seducing their Citizens to quit their own Country, and settle in the Spanish Territory, has little pretensions to Favour from us.
I have thus Sir given you the best Information upon the Subject the short time I had woud allow.
I thank you exceedingly for getting Mr. John Hooe's Petition for a Ferry postponed, until the Petition against it comes down. It is still out among the People of this County; but I will endeavor to get it as soon as possible, & forward it to the Assembly; and have no Doubt it will prove Mr. Hooe's projected new Ferry not only unnecessary, but productive of much Injury & Oppression to the People, in its Consequences, &calculated merely to serve a local job. I am, with great regard, Dr. Sir, Your most obdt. Sert.
I remember the Indiana Company, when their Claim (at their own Request) was before the Assembly in 1779, produced in Williamsburg some English Lawyers Opinions in their Favour, upon a printed State of their Case. To shew you (and if you think fit the Assembly) what Sort of Opinions the English Lawyers were accustomed to give; where the poor American Colonys, or thei rights were in Question, I enclose you an Opinion of Mr. Attorney General Pratt's in the Year 1760, upon a Dispute between the then Proprietor of Maryland and the People. Yet this is the same Mr. Pratt, who has been since transformed into Lord Cambden, the Champion of Liberty, & Defender of the Rights of the People. I have long kept it, as a Curiosity; you will therefore be pleased to take care of it, and return it to me.