ORIGIN OF TITLE

To those outside of the legal profession, nothing is more uninteresting than discussions upon titles. But the subject is too important to be omitted. In regard to the permanent prosperity of a country, a good system of land titles, is of no less consequence than a good government.

On the Western Reserve, although the system is simple, the history of its origin is somewhat complicated. A thorough exposition would of itself occupy a small volume. I can only present the outlines.

England claimed the North American continent by discovery, in virtue of the voyages of John and Sebastian Cabot, along its eastern coast. The Pope assumed to grant to Spain, a large part of America, but the other powers, paid very little attention to the title of his Holiness; as it was wholly without foundation. By the practice of civilized nations, which constitutes the law of nations; discovery and possession, make up the title to unoccupied countries. In determining the limits of possession under the law of nations, constructive occupation was allowed, whereby the party who held the mouth of a river took the country which is drained by it.

Thus Spain, by the explorations of De Narvaez, and De Soto, on the Gulf of Mexico ; became possessed of the country of the Apalachicola, Mobile, Pearl, and Mississippi rivers, early in the 16th century.

She soon lost a large part of this territory, by the failure of continuous possession, and the French taking advantage of her neglect, extended their occupation over it. Coming in by way of the St. Lawrence in 1535, and fixing themselves there in 1603, they pushed forward in every direction.

In 1660 they reached the west end of Lake Superior ; in 1673 they were on the upper Mississippi, and on the 7th of April, 1682, La Salle arrived at its mouth.

The English had frequently tried to dislodge them, by negotiation and by force, but without success. By the year 1749, French military posts had entirely surrounded the English colonies. They were continually contracting the inner cordon of their forts, until they were brought in immediate contact, with the frontier positions of the British Crown. The French then held the Bay of Funday, Fort Cohasset on the Connecticut, and Crown Point on Lake Champlain.

They held Oswego, Niagara, Fort Erie, opposite Buffalo, Presque Isle(Erie, Pa.), the Allegheny and Ohio rivers. This dangerous proximity brought on the old French war of 1754. Before appealing to arms, the French offered a boundary, commencing on the Gulf of Mexico, at the mouth of the Apalachicola, thence up the same to its source. From its head waters the dividing line between the English and French colonies, was to follow the crest of the Allegheny mountains; to the sources of the Susquehanna; and thence to Crown Point, and the Bay of Funday.

As a counter proposition, the English offered to accept the line of the Allegheny mountains, as far as the eastern branches of the Ohio; diverging thence to their junction at Pittsburgh; up the Allegheny river, and French creek to Presque Isle, on lake Erie; and thence along the shore, through lake Ontario, the outlet of lake Champlain, and the sources of the Atlantic rivers. This being refused, the war was begun; which in 1760, ended in the conquest by the English, of all the French possessions, east of the Mississippi, except the island of Orleans.

With the Indians, the French policy was quite different from that of the English, and the Americans. The French did not ask for territory, except as tenants of so much as might be necessary for temporary cultivation, around their forts. Their treaties were made to secure peace and traffic.

The French have little taste for colonizing new countries, for the purpose or permanent cultivation. But whatever rights the French had in the Indian country, became English ; by conquest, secured by the treaty of February 13, 1763; and as the Indians were their allies, they stood in the position of a conquered people.

Between the colonies and the crown, there arose at once the question of title, to the lands beyond the Alleghenies; included in all the colonial charters.

The Sovereigns of England not only made grants in this country or immense extent, for very trifling considerations, covering many times over the same territory; but they claimed the power to amend, alter, and annual previous patents, a power which was frequently exercised.

Virginia at first included a large part or North America: from latitude thirty-four to latitude forty-eight north, thence west and north-west to the Great South Sea; which was at that time a geographical myth. While the Pilgrim fathers were on the sea, in search of a new home; where they could be exempt from religious persecution; James the First, king of England, on the 3d of November, 1630, divided Old Virginia; constituting a northern and a southern colony; under the names of the “London” and “Plymouth” companies. The charter of the Plymouth company, is tediously verbose, granting to forty favorites of the crown mostly nobles; the country between latitude 40 and 48 degrees north, stretching indefinitely, to the mythical South Sea, on the west. This territory was forever to be called “New England.” It covered the Dutch settlement on Hudson river, and subsequent grants to the Duke of York, now constituting the State of New York; most of Pennsylvania, Ohio, Canada and the north-western States.

The “Council of Plymouth” was made a corporation, with most extensive political and personal privileges; on condition of rendering to the king, one-fourth part of all the gold and silver that might be discovered. They had exclusive rights of trade, free of duty, except as to imports to England. It was made a heinous crime to speak evil of “New England” or the corporators. The object of the grants are set forth in these words: “The principal effect which we can desire or expect of this action is the conversion or reduction of the people in those parts to the true worship of God and christian religion.”

In 1630, the Council of Plymouth, sitting in the county of Devon, England, granted to Robert, Earl of Warwick, its President; “All that part of New England, in America, which lies and extends itself from a river there called Narragansett river, the space of forty leagues upon a straight line near the sea shore, towards south-west, west and by south, or west, as the coast lieth, towards Virginia, accounting three English miles to the league, all and singular, the lands and hereditaments whatsoever, lying and being within the bounds aforesaid, north and south in latitude and breadth, and in length and longitude, and within all the breadth aforesaid throughout all the main lands there, from the western ocean to the South Seas.” What lands were meant by this description, or what were not included in it, constituted the legal puzzle of a century and a half.

On the 19th of March, 1631, Earl Robert conveyed the same premises “more or less,” to Viscount Say And Seal Brook, and his associates, which is called the “Patent of Connecticut.” It is under this patent she claimed a large part of Pennsylvania and Ohio, and from which her claim to the Western Reserve is derived. The limits of Connecticut north and south were finally determined to be the forty-first parallel, and the parallel of forty-two degrees and two minutes north. As doubts were entertained of the validity of Warwick’s patent, to found a political government ; and the colony of Massachusetts encroached upon that of Connecticut, recourse was had to King Charles the Second, who granted a most ample charter on the 23d of April, 1662, which was also fixed the northern boundary.

Lord Say and Seal was still living, and a fast friend of the Puritans. He was also in power at court, and in favor with Charles Second. John Winthrop the Governor, who was sent to England to procure this charter, had in his possession a ring; which once belonged to Charles the First. This was presented to the King, delighting his royal heart exceedingly. Whatever they desired was put into the charter, which served as a constitution, until after the United States became independent of Great Britain-[Trumbull’s History of Connecticut.]

The charter of the “London Company,” covering a large part of North America, had been annulled by judicial process in 1624. The subsequent grant to the Duke of York, extended across the St. Lawrence indefinitely to the north-west. Connecticut and Massachusetts, under the charter of the Plymouth Company, reached to the Great South Sea.

After the Peace of Paris, and before the revolution, the Indians made grants of territory to Great Britain, embracing parts of New York, Connecticut, Pennsylvania and Virginia, as these colonies were then described. They had much reason to claim, that having borne much of the expense, and furnished a large part of the soldiers. to carry on the war with the French and Indians, the lands thus wrested from their enemies, should be confirmed to them. Whether under the law of nations, the King had a right to grant them territory, which lay beyond the rivers emptying into the Atlantic, he now held this disputed country by a good title, and they insisted that he was bound to make good his ancient promises. The Crown took a different view.

In the fall of 1763, all the colonist were excluded from lands beyond the mountains, by royal proclamation.

Before the French war, the “Ohio Land Company” had been formed, with extensive grants in Ohio and West Virginia. The colony or Virginia had issued bounty land warrants, to her soldiers who fought against the French. As she claimed under the almost limitless charter of the London Company, the holders of these warrants had a roving commission, to plant themselves at will in the western country. These bold soldiers paid little heed to the King’s proclamation, or to the savages, who protested fiercely against their intrusions. Even Washington came to the great Kenhawa and located his warrants. Projects for land companies and settlements, in the valley of the Ohio, were being vigorously prosecuted, when the war of the revolution broke out. When it closed, all the rights which the English government possessed, either from French or Indian conquest, were transferred by the same right of the conqueror, and by treaty, to the United States.

Immediately after the peace of 1783, the American Congress took measures to obtain cessions of Indian lands. Their commissioners, beginning at Fort Stanwix in 1784, afterwards at Fort McIntosh, Fort Harmar, and other points on the Ohio, in 1785-6, concluded what are called treaties, with the Six Nations and many western tribes.

In these negotiations, although matters had the appearance of bargain and sale, a certain amount of goods and money, for a given quantity of land, the terms were those of a conqueror, dictating to the vanquished. The Indians had fought with the British, against us, as they had with the French, against the English. Victory placed them again in position of a conquered people. These treaties were not those of parties, equal under the law of nations, but were articles of settlement at the conclusion of a war. The Indians always regarded them as stipulations made under duress, to be kept no longer than they were obliged to do so by force.

They had learned under British rule, that the government would permit no sales by them to other parties. They had been guarantied by the British crown, a permanent home, west of the Alleghenies; into which the white men had been forbidden to enter. This was done in good faith by the British authorities, but the issue of war had abrogated her authority; a war to which the Indians were parties.

The possession of the soil is evidently due to those who will cultivate it. The earth was not intended as a mere hunting ground for the savage. By his mode of life, he requires about six miles square to support a family. He draws his subsistence from the spontaneous production of nature, always exhausting and never adding any thing to her resources.

Of course the earth cannot in this way fulfill its destiny, and support the increasing millions that are incessantly appearing upon it. In 1736 all the savages, with which the Jesuit Missionaries were acquainted, on the waters of the lakes and of the Mississippi, did not exceed 80,000. Within the limits of Ohio, there were probably more Indians about the time of the Revolution, than ever before. By Capt. Hutchins’ estimate, made in 1787, there were not of them to exceed 7,000 souls. The whole number, would not have made a city of the second class, as fixed by our statues.

The old difficulty between the colonies and the crown, revived immediately after the revolution, between the same parties as States, and the confederation of the United States of America. All the old questions of boundary, came up anew. New York, at an early day, consented to liberal curtailment of her claims. The pressure of the war, the wisdom, forbearance and patriotism of those times, and the financial difficulties which oppressed the nation, all conspired to make the discussion temperate, and finally secured a happy result. Congress held the Indian grants. Some States had no indefinite western boundary, on which to found a claim. These had, like the others, sent their citizens into the field, and supported them there. Like the colonies in the French war, they had acquired a moral right to a portion of the proceeds of the conquest.

The discussion continued from the formation of the confederation, until the year 1800, before everything connected with the western lands was adjusted.

Connecticut, having been ousted of her pretensions in Pennsylvania, was tenacious of her claims to the west of that State. By her deed of September 14, 1786, she limited herself to a tract, about as large as Old Connecticut, in the north-eastern part of Ohio, commonly called the “Western Reserve.” To this as to all other western lands, the title was eventually made sure by compromise; the United States refusing to consider the comparative value of the conflicting claims of the States.

In addition to the relinquishment of 1786, a farther compact was made between the State and the Government, by which Connecticut, in 1800, relinquished to the United States, all claim of political jurisdiction, and the latter confirmed to her the title to the soil.

That personal enterprise which is engendered by wars, expends itself in the United States, upon the new territories. The provincial soldiers of the old French war, and of the campaign under Col. Bouquet, 1764, were the men who became the pioneers on the waters of the Ohio. Very soon after the Revolution, our immediate ancestors began to look westward. Their courage did not allow them to fear their red enemies. Wars are not wholly without compensation.

It required precisely such characters, as the impoverished soldiers of the Revolution, to conquer the western wilds. Men who had never been toughened by the exposures and dangers of the camp, would not relish such undertakings. Perhaps many of these, would not have sought after fortune in such remote regions, had not the war left them with nothing but their physical strength, ambition and courage. The rich wilderness which they had seen, had been conquered by their exertions. It was therefore in accordance with a fearless spirit, coupled with necessity; that they entered upon the dangerous task of subduing the western wilderness.

In 1788 the settlement of Ohio was commenced, by an association of New England soldiers. During the next year a purchase of three millions of acres, was made in western New York, through the agency of Benjamin Gorham and Oliver Phelps; embracing the rich lands which border upon Seneca and Canandaigua Lakes.

In Ohio the most accessible portion lies adjacent to the Ohio River, where the first lodgments were made, at Marietta and Cincinnati.

For thirty years, rude highways had been in existence over the ridges of the Allegheny mountains, made by Braddock and Forbes, to the forks of the Ohio, at Pittsburg. From thence, in boats, they could float onward with the stream. The settlements, following the impulse of the old French war, had passed the crests of those mountains, and already occupied some of the valleys of the streams.

The northern route to Ohio was more difficult. The entire breadth of the State of New York must be penetrated, mostly by a land route, through a country not broken by mountains, but by marshes, lakes and streams, more impracticable than mountains. It required a few years more time, for them to reach the northern borders of this State.

Settlers had forced their way as far west as Canandaigua. A horse trail had been opened along the old Indian trail to lake Erie, at Buffalo, when the project of occupying this portion of the State was set on foot. Oliver Phelps, of Connecticut, the partner of Gorham, of Massachusetts, in the New York purchase, was disposed to strike still deeper into the western country.

On the 14th of September, 1786, the State of Connecticut made a deed of cession, whereby she released to the United States; all right, title, interest jurisdiction and claim, which she had north of the forty-first parallel, and west of a meridian to be run at a distance of one hundred and twenty miles, west of the west line of Pennsylvania; extending north to the parallel of forty-two degrees and two minutes.

The State of Connecticut made no disposition of the territory, between the Pennsylvania line and the meridian referred to, lying between forty-two degrees two minutes, and forty-one degrees.

It was thus reserved to herself, from which it received the title of the “Connecticut Western Reserve.” All the States, having claims to the territory north-west of the Ohio; having relinquished their claims, except to the Reserve; the United States proceeded to establish a government over it, and passed the famous “Ordinance of 1787.”

As the State of Connecticut, had never relinquished her claim to the Western Reserve, she considered such an extension of jurisdiction, to be in violation of her rights. She very soon after, provided for the sale of her reserved lands in this region.

As claims of the several States, to western lands under their conflicting grants, and the mode of settlement are fully set forth in the Land Laws of the United States; I notice them only incidentally here.

In October, 1786, that State had passed a resolution, authorizing a committee of three persons, to sell that part, which lies east of the Cuyahoga river and the old portage path; by townships of six miles square. The price was limited to three shillings currency per acre, which is equal to fifty cents in Federal money. Six ranges of townships were to be surveyed, lying next to the Pennsylvania line; to be numbered from Lake Erie southward, and not less than twenty-seven dollars in specie, was to be paid per township to defray the expenses of survey.

Five hundred acres of land in each township, was reserved for the support of the gospel ministry; and five hundred acres for the support of schools.

The first minister who settled in a township, was entitled to two hundred and forty acres. Until a republican government should be established, the general Assembly, undertook to provide for the preservation of peace and good order among the settlers.

At their session in May 1787, some alterations were made, in the manner of surveying and numbering the townships, and the mode of making conveyances.

No attempt was made to execute the surveys. A sale was made however, to General Samuel H. Parsons, of Middletown, of a tract embracing twenty-four thousand acres, afterwards known as the “Salt Spring Tract,” in Trumbull county. This patent was executed by the Governor and Secretary, February 10, 1788. [Hon. T. D. Webb.] It is described by ranges and townships, as though the lines had been run and marked upon the ground. General Parsons had explored the country, and found the location of the well known Salt Spring, near the Mahoning river, which was considered very valuable. This spring is laid down by Evans, on his map of 1755. The Pennsylvanians had recourse to it during the revolution, and cabins had been erected there. In 1785, Col. Brodhead, commanding the troops at Fort Pitt, had orders to dispossess them, and did so.

The Indians soon burned the cabins they had erected. General Parsons, was appointed one of the Judges in the north-western Territory, but was drowned in the fall of 1788, at the falls of Beaver river. Considerable quantities of salt had been made by Indians and traders before the settlement, and for a number of years after, its manufacture was continued by the pioneers.

General Parsons was the only purchaser from the State, until the Connecticut Land Company was organized, giving him the choice of lands east of the Cuyahoga. The description in his patent is as follows: “Beginning at the north-east corner of the first township in the third range; thence northerly, on the west line of the second range, to forty-one degrees and twelve minutes of north latitude; thence west, three miles; thence southerly, parallel to the west line of Pennsylvania, two miles and one half, thence west, three miles, to the west line of said third range; thence southerly, parallel to the west line of Pennsylvania, to the north line of the first township in the third range; thence east to the first bound.” [Leonard Case.]

Although no surveys were made, General Parsons proceeded to make sales and deeds, of undivided portions, to various parties. His patent was recorded in the office of the Secretary of State, at Hartford, but the United States having organized the county of Washington, embracing this tract, it was again recorded at Marietta, as were many of the deeds made by him. Afterwards, when the conflicting claims of the State and the federal government were harmonized, as doubts remained in regard to the validity of Washington county, north of the 41st parallel, they were recorded again at Warren, in the county of Trumbull. No taxes were effectually imposed upon the inhabitants of the Reserve, until after the organization of Trumbull county. Before that time, the settlers were left in a state of nature, so far as civil government was concerned. They were once disturbed by the authority of the United States, at the time when they were supposed to be included in Jefferson County.

Zenas Kimberly made his appearance in this region, to enquire into the matter of taxation. As they did not acknowledge the jurisdiction of the United States, he was by ridicule and laughter, until he concluded to leave them.

[T. D. Webb.]

In May, 1792, the Legislature of Connecticut granted to those of her citizens, who had suffered by depredations of the British, during the revolution, half a million of acres, to be taken off the west end of the Reserve, exclusive of the Islands. As no one except Parsons had purchased lands under the resolutions of 1786-7, a new mode of disposing of her western lands adopted, in May, 1795.

Numerous parties entered the field as purchasers. Under the last resolution, a committee of eight citizens, representing each county in the State; was empowered to sell, three millions of acres; next west of the Pennsylvania line, at a price not less than one million of dollars being a third of a dollar per acre. The names of the committee were

John Treadwell,              James Wadsworth,

Marvin Wait,                  William Edmond,

Thomas Grosvenor,        Aaron Austin,

Eilijah Hubbard,             Sylvester Gilbert.

Speculation in wild lands had already become epidemic in New England. Benjamin Gorham and Oliver Phelps had sold their New York purchase to Robert Livingston, of Philadelphia, who transferred it to a company in Holland, by which the tract was afterwards known as the “Holland Purchase.”

The committee, and the several adventurers, spent the summer of 1795 in negotiations. General Wayne’s successful movements, through the Indians that the United States intended to occupy Ohio, whoever might oppose. The purchasers, were, notwithstanding; required to take all risks of title and possession. Another condition was imposed upon the committee; which required them to dispose of the entire three million of acres, before concluding a sale of any part of it.

John Livingston and others were in the field as competitors of the Connecticut men, but were induced to accept for their share, the supposed surplus, a million or more acres.

On the 2nd of September, 1795, the bargain was concluded. A sufficient number of individuals had presented themselves, willing to take the entire tract at the sum of one million two hundred thousand dollars; whose names, and their respective proportions are here given:

Joseph Howland and Daniel L. Coit                                    $30,461

Elias Morgan                                                                     50,402

Caleb Atwater                                                                    22,846

Daniel Holbrook                                                                8,750

Joseph Williams                                                                 15,231

William Love                                                                     10,500

William Judd                                                                     16,256

Elisha Hyde and Uriah Tracey                                            57,400

James Johnston                                                                  30,000

Samuel Mather, Jr.                                                             18,461

Ephraim Kirby, Elijah Boardman and Uriel Holmes, Jr.       60,000

Solomon Griswold                                                             10,000

Oliver Phelps and Gideon Granger, Jr                                 80,000

William Hurt                                                                     30,462

Henry Champion, 2d                                                          85,675

Asher Miller                                                                       34,000

Robert C. Johnson                                                              60,000

Ephraim Root                                                                    42,000

Nehemiah Hubbard, Jr.                                                     19,039

Solomon Cowles                                                               10,000

Oliver Phelps                                                                    168,185

Asahel Hathaway                                                              12,000

John Caldwell and Peleg Sanford                                      15,000

Timothy Burr                                                                    15,231

Luther Loomis and Ebenizer King, Jr.                                44,318

William Lyman, John Stoddard and David King                 24,730

Moses Cleaveland                                                             32,600

Samuel P. Lord                                                                 14,092

Roger Newberry, Enoch Perkins and Jonathan Brace          38,000

Ephraim Starr                                                                   17,415

Sylvanus Griswold                                                            1,683

Joseb Stocking and Joshua Stow                                        11,423

Titus Street                                                                       22,846

James Bull, Aaron Olmsted and John Wyles                      30,000

Pierpoint Edwards                                                             60,000

——————-

$1,200,000

The committee of eight, immediately made deeds to these purchasers, of as many twelve hundred thousandths in common, of the entire tract, as they had subscribed dollars on the above list. These deeds and the subsequent drafts were recorded in the office of the Secretary of State, at Hartford; and afterwards transferred to the Records office at Warren. They are very lengthy, reciting the substance of the resolution, and the mode of sale to the grantees. It does not appear that any part of the consideration was paid in hand. [T.D. Webb.]