History of the Indian Walk, performed for the proprietaries of Pennsylvania in 1737, to which is appended a life of Edward Marshall

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Preface

Of all that has been pubhshed relating to the history of Pennsylvania nothing probably has been more contradictory than that relating to the famous Indian Walk. Its beginning, general course and termination have more or less puzzled all writers who have attempted to treat upon it, without suspecting that it was on the part of the Proprietaries intentionally done to cover or conceal their proceedings. The date of its performance has also been a matter of speculation, owing to the conflicting character of the materials, without knowing until quite recently that there really had been a preliminary or trial Walk, which came thus to be confounded with the former though happening several years apart.

Since the publication of his history of Bucks county, in 1855, the writer has been a devoted collector of materials on this matter, but circumstances in a busy life have heretofore prevented their earlier preparation for the press. It was his fortune, however, to be employed by the Hi.storical Society of Pennsylvania, to arrange the recently acquired Penn Papers from P2ngland, which occupied him more or less from October 1 872, until 1 876. While engaged in this labor pains were taken to secure extracts of whatever had a bearing on the subject. This enabled him afterwards to prosecute additional researches in the records

4 PRE FACE.

of Philadelphia, Bucks and Northampton counties, and also to seek the descendants of Edward Marshall and others to help explain and make uj) deficiencies of what was most needed. As the collection was thus increasing, the many hundreds of items were classified under appropriate heads. These were next carefully compared and whatever was considered and believed to be the most reliable was made use of, giving contemporaneous documents the preference. While nothing of interest was omitted that appeared truthful a considerable amount, chiefly traditionary matter, had to be rejected, because so utterly at variance with original existing materials. Pri\ate correspondence of the period has been of great service in establishing facts and revealing the mysteries of the affair, showing that there was a design in keeping the matter concealed as far as possible from the public, and hence the cause of so many errors. No wonder the extensive Penn papers were so long withheld by the family until through their own dissensions they were hurried from out their possession and sold.

This may be well considered a labor of love. The long interval of one-third of a century has passed away since it was commenced. It was some incentive that on the line of the Walk the writer's ancestors have lived for several generations, and where also he was born, spent his early youth, and received his first traditions thereon. Not many miles away was also the Island home of Edward Marshall, which led to an acquaintance with a number of his descendants,

PREFACE. 5

whose assistance has since proved of great service as well as that of several others in the county, though now nearly all deceased. The information thus sought and obtained was fortunately noted down at the time and is now first made use of in this work. Authorities on all leading points have been carefully given in support of the writer's statements or where contrary views have been heretofore maintained.

In its beginning the Indian Walk appeared but a small affair that lay chiefly between the Proprietaries of Pennsylvania and the native Indians. With time the results of its injustice became more and more apparent and on the part of the Indians culminated in war and the most determined efforts for the recovery of their favorite hunting grounds of which they were defrauded by the extraordinary head-line drawn from the end of the Walk, costing the lives of hundreds of the unfortunate settlers. The Assembly of Pennsylvania, through their agent Dr. Franklin, had the affair laid before the King and Government of Great Britain for investigation, thus claiming attention on both sides of the Atlantic, and resulting in considerable feeling. However, the excitement attending it in Pennsylvania was preparing the people more and more for independence. The Indian Walk had a more important bearing on the history of Pennsylvania than has generally been supposed.

With these remarks the work is respectfully submitted to the judgment of candid and impartial readers.

W. J. B.

Jenkintmun, Pa., September, 1886.

Contents

Chapter Page

I. — The Proprietary Government, .... 7

II. — The Rights of the Indians, .... 20

Chapter I. The Proprietary Government

For a proper understanding of the Indian Walk, both as to its cause, effect and general results, a knowledge of the Proprietary government is necessary. During almost a century it exercised its powers over the destinies of what is now a great state, subject only to the King and Parliament of Great Britain. What that government was, its rights, duties and requirements, we propose to briefly investigate. Much has been written of what transpired during the colonial period, but not on this subject. Some had no desire to touch on it for the purpose of giving an expression of their views, and others again have so omitted it as to make it appear of small account, or only incidentally to show by its actions that there was such a power.

The Royal Charter was granted by King Charles II. to William Penn in 1681, as a reward for the merits and services of his father Admiral Penn, and to indulge his desire to enlarge the British Empire and civilize the savage natives. The form of government was to be proprietary ; that is, the soil was given to him in fee, but he, his heirs and assigns and tenants, were to bear true faith and allegiance to the Crown. Penn and his successors were authorized to govern the country by a legislative body, to erect courts of justice and administer the laws, and generally do all things needful for the well-being of the inhabitants, so long as they kept within the statutes of the realm. An appeal to the tribunals of England was allowed, but in all cases the power there was to be regarded as final or conclusive. An agent was required to reside constantly in Great Britain to answer to alleged abuses, as for instance the acts of the Assembly here.

It will be seen from this that the proprietary government of Pennsylvania was nothing less than a hereditary monarchy invested in William Penn and his descendants, but at the same time dependent on Great Britain ; the" King being the source of all power, beyond whom there could be no appeal. In the third section of the Royal Charter is found the following feudal relic required in addition by the King from his liege subjects the Proprietaries: "paying thenceforth to us, our heirs and successors, two beaver skins, to be delivered at our Castle of Windsor, on the first day of January in every year; and also tlie fifth part of all gold and silv^cr ore, which shall from time to time happen to be found within the limits aforesaid, clear of all charges." This tribute of two beaver skins was actually paid by the Penns from 1753 to 1780 we know, having sec;n the original receipts for the same.

By said charter the whole province was made the property of one man — that is, in a two-fold sense, of its soil and its government; and all this for the discharge of a debt, regardless of the rights of the Indians or of the people residing there. In the exercise of the legal power conferred on him Penn proceeded to frame a government and a code of laws of his own device, subsequently the cause of so much trouble. For one thing, however, he deserved credit, and that was for religious toleration; but from the force of circumstances, even had he been otherwise desirous, it could not have been well avoided, from the example set him some time before by the colonies of Rhode Island and Maryland.

Whenever the proprietaries were not disposed to come here and carry on the government themselves, they appointed by the right they possessed the deputy governors, who only held the office during their permission, and placed them under bonds of ;^5O0O and approved security for their faithful performance and requisite loyalty, first due to the King and British government, next to the Proprietaries, and thirdly and, it might be added, lastly, to the province or colony.

This was a difficult task to assume, for there were three masters to serve, for what they owed to those abroad and what was due to the circumstances by which they were surrounded. It may be surprising that with all the power exercised over them yet the province paid their salaries, which were fixed and allowed by the Assembly.

lO THE INDIAN WALK.

There was a Council, which at first was elected every three years, consisting of eighteen persons and an Assembly, annually. The Council could only act with the advice of the Governor and with him possessed the appointing power. The powers of the Assembly extended little beyond making laws relating to the collecting and appropriating revenues.

The greatest power of the Penns to carry through any unjust designs against the will of the people or ot the Assembly, who it appears were generally disposed to justice, lay in the appointing power. Thus the judges of the courts, the attorney general, surv^eyor general, and, if required, down to all their deputies, were appointed and commissioned by the governors and council through the instructions of the proprietaries, and should the governor disobey he would at once be set aside. The Council though in one sense independent was completely subordinate to the governor, without whom they could not act. Again, when duly obedient or passive, themselves and sons would likely at some time be rewarded by office or promotion. This was the general character of those in the courts as well as in other provincial offices. Likewise in the election of the various county officers by the people, the governor had still the right to appoint and commission either one of the two receiving the highest vote for the office. Thus in looking over our published Colonial Records and Archives, one will be struck at the appointing occasionally to office the one that received the next highest vote. This seems to

THE PROPRIETARY GOVERNMENT. I I

hav'e been most frequently exercised with regard to the sheriff's office, and which unfortunately was held only one year at a time. This information becomes important to explain in part how the Penns were enabled to plan, execute and carry out such an unjust act as the Walk on the Indians, and afterwards so successfully to smuggle away and conceal the public documents concerning the same that did not favor their interests. The Penns being themselves almost continually involved in law suits in Great Britain, had acquired in this respect considerable experience, which knowledge they would turn to account in the government of Pennsylvania. Hence they kept a vigilant eye on those designed to be judges of the courts as well as sheriffs who had the selection of jurors. So much were those holding these positions their creatures, that in any case in which the interest of the Penns would be involved there could be but a poor chance for justice. It is doubtful whether in any of the other English colonies there could have been found so servile a set af judges and so devoted to the proprietary interest as those of Pennsylvania down to the Revolution. Thus in the collection of their quit rents and other revenues, the leasing and disposing of lands and in the disputes arising therefrom, they wielded a power that now can scarcely be credited. In those matters the royal government had no interest and was consequently indifferent, but it was otherwise with the people, who, as a general thing, were too liberty-loving to be blind to such gross abuses of power ; and we need not wonder that there was such a spirit of opposition to the proprietaries, and that they preferred a government directly under the crown.

On the other hand the home government had its pecuHar interests involved and to see after, about which the Penns were equally indifferent, yet which bore sorely on the province. The Assembly, as an instance, had here passed a law laying a duty on the importation of slaves and convicts from abroad. The following is a copy of instructions issued by command of the King to Governor George Thomas in regard to the same, dated the loth of December, 1731 : " Whereas Acts have been passed in some of Our Plantations in America for laying Duties on the Importation and Exportation of Negroes, to the great Discouragement of the Merchants trading thither from the coast of Africa ; and Whereas Acts have been likewise passed for laying of Duties on Felons imported in Direct opposition to an Act of Parliament passed in the fourth year of Our late Royal F'ather's Reign, for the further preventing Robbery, Burglary and other Felonies, and for the more effectual Transportation of Felons — it is our Will and Pleasure, that you do not give your Assent to or pass any Law imposing Duties upon Negroes into Our Province of Pennsylvania payable by the importer, or upon any slaves exported, that have not been sold in Our said Province and continued there for the space of Twelve Months. It is our further Will and Pleasure, that you do not give your Assent to or pass any Act whatever for imposing Duties on the Importation of any Felons from this Kingdom into Our said Province of Pennsylvania."

The first Charter of Privileges for the province was made in England April 25, 1682, and the second, April 2, 1683. These were set aside by Penn for a new one he framed, signed October 28, 1701, and which continued in force till into the Revolution, when, of course, it was supplanted by a state constitution. On this last it becomes us now to touch, for compared to the previous ones as respects privileges the people were made considerably the losers while the proprietary powers were greatly strengthened. The Council, or what we might call the Senate, were no longer elective ; the Proprietary had now assumed the sole right to select and dismiss them at his pleasure. In the third article of this charter (see the whole in Colonial Records, Vol. II, pp. 56-61) we find "That the freemen in .each respective county, at the time and place of meeting for electing their representatives to serve in Assembly, may, as often as there shall be occasion, choose a double number of persons to present to the governor, sheriffs and coroners, if so long they behave themselves well, out of which respective elections and presentments the governors shall nominate and commissionate one for each of the said offices." Though elections were held and appeared free, yet with such restrictions they could amount to little but to render officials extremely pliant and tractable to the measures or designs of the proprietaries. We need not wonder at the high-handed or arbitrary proceedings of such men as deputy governors Evans and Denny, backed as they were by the powers to which they owed and held their positions.

Gordon in his History of Pennsylvania (pp. 12 1-3) mentions another strong point gained by the Proprietary in the new charter. " Nor was the Council recognized as a part of the government, unless a prohibition to the Governor and Council to take cognizance of any complaint relating to property, except appeals should be allowed by law from the ordinary tribunals, may be considered as such recognition. The practice of trying causes relative to real estate, before the Governor and Council, as well as those in which private citizens were parties, as those in which the Proprietary was interested, had been continued. This made him a judge in his own cause, and was highly objectionable when the Council was elected by the people ; it became wholly admissible when that body became the merecreature of the Governor."

Just before his final departure, Penn appointed ten persons for the Council, of whom four were to be a (juorum. Respecting these he says, "to continue in place till my further order shall be known: and I further hereby grant to my Lieutenant Governor for the time being full power and authority upon the decease or removal of any of the said Council, to nominate and appoint others to serve in their place and .stead, also to add to the number of the Council now appointed." So passed away the independent elective Council, and other extensive powers of the people.

Ellis in his Life of Penn (p. 372) is therefore considerably mistaken when he says that "the new frame of Government was essentially the same, except in allowing the territories to separate from the government of the Province". Janney still more absurdly remarks ( Life of Penn, second edition, p. 45 1 ) that " in some respects was even more liberal than those which preceded it." Penn signed at New Castle, October 31, 1 70 1, the charter for the borough of Chester, wherein he styles himself, perhaps for the first time, "true and absolute Proprietary and Governor-in-Chief of the Province of Pennsylvania, and Territories thereunto belonging."

Coming down to a later period, the Indian war of 1754 broke out, one of the causes of which was attributed to the unfairness of the Walk, and the advantage taken therefrom by the Proprietaries to defraud them of a great quantity of land, and even selling it to speculators some time previous to their legal ownership of the same. The war thus brought about involved considerable expense and bore rather heavily on the colony. With a view of equalizing taxation, the Assembly passed a bill levying iJ"ioo,ooo upon all estates, real and personal, including alike, and for the first time, that of the Proprietaries. Governor Denny, as their deputy, rejected it, and, however unjustly, the people were forced to submit to the exemption. But the Assembly determined to send two commissioners to England, to present their grievances before the throne, and obtain relief Isaac Norris and Benjamin

Franklin were selected for this purpose ; but the former, on account of ill health and his private affairs, did not accept, and the latter proceeded alone, arriving in London in July, 1757, and laid his instructions before the government. This at once raised the ire of the Penns, and involved considerable controversy. However, in 1759, a final decision was given on this vexed question, favoring the province, which was looked upon as a signal triumph by Franklin and his party. From the " Heads of Complaint, " presented by Franklin as agent, August 20, 1757, we give the following extracts : "That the reasonable and necessary power given to Deputy Governors of Penns\'lvania by the Royal Charter, sections 4th and 5th, of making Laws with the Advice and Consent of the Assembly for raising Money for the Safety of the Country and other public uses according to their best discretion, is taken away by Proprietary Instructions enforced by penal Bonds, and restraining the Deputy from the use of his best discretion, tho being on the spot, he can better judge of the emergency, state and necessity of affairs, than the Proprietaries residing at a great distance. That the indubitable right of the Assembly to judge of the Mode, Measure and time of Granting supplies, is infringed by Instructions that enjoin the Deputy to refuse his assent to any Bill for raising money, unless certain Modes, Measures and Times in such Instructions directed, make a part of the Bill whereby the Assembly in time of, war are reduced to the necessity of either losing the country to the

Enemy, or giving up the Liberties of the People and receiving Law from the Proprietary. That the Proprietaries have enjoined their Deputy by secret instructions to refuse his assent to any law for raising money by a Tax though ever so necessary for the Defence of the country, unless the greatest part of their estate is exempted from such tax. This to the Assembly and people of Pennsylvania appears both unjust and cruel. The Proprietaries are now requested seriously to consider these complaints and redress the aggrievances complained of in the most speedy and effectual Manner, that Harmony may be restored between the several Branches of the Legislature and the Public service be hereafter readily and fully provided for."

Sherman Day, in his able work on Pennsylvania, speaking of the troubles existing at this time, truthfully remarks: ".On the one side was the proprietary family, with their feudal prerogatives, their manors of 10,000 acres, their quit-rents, and baronial pomp, — alienated in their sympathies from the colony — preferring the luxuries of aristocratic life in P!ngland, to the unostentatious manners of the new world — ruling the colonies by capricious deputies — and ever refusing to be taxed for the common defence of the country. On the other side was a hardy and enthusiastic band of colonists, free in this new world to clevelop the great principles of civil liberty, then just dawning upon the human mind — willing to bear their share provided the proprietaries would consent to be equally taxed."

In a letter from Thomas Penn, dated July i, 1755. to Isaac Norris, we take the following extract, from which it appears he was not by any means ignorant of the feeling engendered against himself and several of the family: "I am greatly concerned to find such a spirit of discontent gone forth in Pennsylvania, against us and our government, as I think we have not given any just cause for it. However, I hope the people themselves will soon be convinced they have been most grossly imposed upon."

" In Franklin's day," remarks his biographer, James Parton, "the Proprietaries were two in number, Thomas Penn, who owned three-fourths of the province, and Richard Penn, who owned one-fourth. Thomas Penn was a man of business — careful, saving and methodical. Richard Penn was a spendthrift. Both were men of slender abilities, and not of very estimable character. But, unhappily, they cherished those erroneous tory notions of the rights of sovereignity which Lord Bute infused into the contracted mind of George III., and which cost that dull and obstinate monarch his colonies. These Penns, in addition to the pride of possessing acres by the million, felt themselves to be lords of the land they owned, and of the people who dwelt upon it. And it must be confessed, they were long upheld in this belief by the Pennsylvanians themselves. When one of the Proprietaries deigned to visit the province, he received the address, as a king might from his subjects, and replied to them with a brevity more than royal. The tone and style of all their later communications to the Pennsylvanians was that of offended lords to countenanced vassals. And yet, at home, as William Franklin wrathfully records, they were so insignificant as 'hardly to be found in the herd of gentry; not in court, not in office, and not in parliament.' "

Chapter II. The Rights Of The Indian's

We now come to the subject of what were the recognized rights of the Indians to the soil under the royal charter, and by the proprietaries, and what obligations the latter were under to observe justice towards them in taking their lands or disposing of them to others. It appears that the Dutch, from the earliest occupation of both sides of the Delaware, recognized a right in the Indians to the soil, by the repeated purchases made from them, up even to the mouth of the Schuylkill, previous to 1648. In the instructions from Queen Christina, of Sweden, in 1643, to Governor John Printz, he was particularly directed, in his dealings with the Indians, to confirm the former purchases of lands and treaties of peace, and as far as practicable to win them over to embrace Christianity and adopt the manners and customs of civilized life. The Rev. John Campanius. Chaplain of the Colony from 1642 to 1648, was so encouraged by the kindness and docility of the natives, that he learned their language and translated Luther's catechism into it, of which Charles XL, in 1696, had 500 copies printed and sent over here to be distributed by his countr}men among the Indians with a view to their religious instruction and mental improvement, though now for fourteen years the colony of Penn. We find a similar act of kindness exhibited by the small band of Moravians who first settled in 1 740 within the present limits of Northampton county, and who through the long and devoted labors of that pious missionary. David Zeisberger, established schools among them with spelling books and other works in their language, to advance their moral and intellectual condition. As we have examined the works of these Swedish and German missionaries, and reflected on the sway here of the Penns for nearly a century, the question would naturally arise, what acts of disinterested benevolence towards them did they or even the kings of England exhibit ?

It was the fortune of William Penn in the formation of his colony to have dealings with the gentlest natives, and endowed with the noblest traits of all those found inhabiting the eastern portion of the present United States. The many acts of kindness exhibited to the early Swedish, P^nglish and German settlers of Pennsylvania, and transmitted by them to us, if collected, would readily fill a volume; nay, the writings of William Penn himself bear evidence of this, and are quite full on the subject. In corroboration of what has been said of the Delawares, we have also the high authority of General William H. Harrison, expressed as late as the beginning of this century, when it is likely that they may have become more corrupted by intercourse with the whites. "A long and intimate knowledge of them, in peace and war, as enemies and friends, has left upon my mind the most favorable impressions of their character for bravery, and fidelity to their engagements."

Among the papers of Thomas Penn was found a printed broadside, without date, but evidently before 1750 ; and we have reason to believe, published as instructions by order of the British government to the several proprietaries and governors, and from the nature of its injunctions kept confidential. The following is an extract: "From September, 1745, to the present time His Majesty's province of New Jersey is in open Rebellion ; and unless some speedy and effectual measures are soon taken, his Majesty's government, Laws and Authority, not only in this, but in the neighboring Provinces, whose inhabitants, for the most part, are but too well inclined to receive the infection, will in all probability be absolutely destroyed. The pretense for the Rebellion on foot is, that the Right to the soil of that Province is in the native Indians, and Persons claiming under them, and not in the Crown or its Grantees, and that no title is good but that from the Indians ; thus unhinging all Property there, denying the rights and prerogatives of the Crown, and setting up the Indian's Right in opposition thereto."

An examination of the royal charter shows nothing in it recognizing any right or title of the Indians whatever to the soil, or that they possessed any other claims. Next we went over the " Frame of Government " prepared by Penn in 1682, and also the charters of 1686 and 1696; but with no more satisfaction. Again, in Smith's Laws of Pennsylvania, published in Philadelphia in 18 10 (Vol. ii, p. 137), is an able article on Indian titles, from which the following extract is taken : " By force of the royal charter, William Penn, and his successors as proprietaries were the undoubted lords of the soil. They stipulated, however, with the purchasers under them to extinguish the right of the natives. They alone had this power. No individual, without their authority, could purchase of the Indians; and the people themselves, by legislative acts, recognized and aided them to enforce this important principle." We readily admit the truth of the aforesaid, with but a single exception, that "They," the said proprietaries, " 5'/z/?//rt/'iY/ with the purchasers under them to extinguish the right of the natives." These stipulations we should like to see, as to their nature, and whether they were so worded as to show an intent to deal fairly and honorably.

In respect to this we have the opinions of some of the most intelligent people in the colony at the very time that William Penn was with us, who publicly charged him with his conduct though members of the same religious denomination. Turning to the appendix of Proud's History of Pennsylvania (Vol. 1 1 , p. 40), we find an address drawn up by the Assembly and signed by Joseph Growdon, Speaker, and delivered September 20, 1701, in contemplation of his speedy departure. Disposed to be brief, we shall only take a short extract from it : " May it please the Governor. That before the Proprietary go to England, he grant us such an instrument as may absolutely secure and defend us in our estates and properties, from himself, his heirs and assigns, for ever, any claiming under, him, them, or any of them, as also to clear all Indian pmcliases and others." Though a reply was made to the address, no notice whatever of the aforesaid petition, however just and reasonable, was taken, and so the Governor left it to his posterity, and they in turn, as we shall see, did not improve upon it. The members composing that Assembly nearly all belonged to the Society of Friends. They were good men and peaceably disposed, and would not have thus pressed on him a deferred matter at the very last opportunity, if they had not known injustice had been done the Indians, which, if not checked in time, must end in open hostilities, and in consequence looked to the future with serious apprehensions.