both Northumberland and Lycoming counties yielded some documentary
evidence regarding the procedures of the Fair Play tribunal.[22] Three
cases in Lycoming County and one from Northumberland County contain
depositions which describe the activities of the Fair Play men in some
detail. One case, _Hughes_ vs. _Dougherty_, was appealed to the Supreme
Court of the Commonwealth. All of the cases deal with the question of
title to lands in the Fair Play territory following the purchase of
these lands at the Treaty of Fort Stanwix in 1784. The depositions taken
in conjunction with these cases indicate the processes of settlement and
ejectment, in addition to the policies regarding land tenure. The
fairness of the Fair Play decisions is noted by the fact that the
regular courts concurred with the earlier judgments of the tribunal.[23]
An anecdote involving one of the Fair Play men, Peter Rodey, illustrates
the nature of this frontier justice. According to legend, Chief Justice
McKean of the State Supreme Court was holding court in this district,
and, curious about the principles or code of the Fair Play men, he
inquired about them of Peter Rodey, a former member of the tribunal.
Rodey, unable to recall the details of the code, simply replied: "All I
can say is, that since your Honor's coorts have come among us, _fair
play_ has entirely ceased, and law has taken its place."[24]
The justice of "fair play" and the nature of the system can be seen from
an analysis of the cases reviewed subsequently in the established
courts. As mentioned previously, these cases describe the procedures
regarding settlement, land tenure, and ejectment. Although no recorded
code of laws has been located, references to "resolutions of the Fair
Play men" regularly appear in the depositions and summaries of these
cases.[25] According to Leyburn, a customary "law" concerning settlement
rights operated on the frontier, particularly among the
Scotch-Irish.[26] This "law" recognized three settlement rights: "corn
right," which established claims to 100 acres for each acre of grain
planted; "tomahawk right," which marked off the area claimed by
deadening trees at the boundaries of the claim; and, "cabin right,"
which confirmed the claim by the construction of a cabin upon the
premises. If the decisions of the regular courts are at all indicative,
Fair Play settlement was generally based upon "cabin right." However,
the frequent allusion to "improvements" implies some secondary
consideration to what Leyburn has defined as "corn right."
In the case of _Hughes_ vs. _Dougherty_, the significance of
"improvements," or "corn rights," vis-a-vis "cabin rights" is
particularly noted.[27] The following summary of that case, found in
_Pennsylvania Reports_, emphasizes that significance, in addition to
defining a Fair Play "code" pertaining to land tenure:
THIS was an ejectment for 324 acres of land, part of the Indian
lands in _Northumberland_ county.
The plaintiff claimed under a warrant issued on the 2d _May_ 1785,
for the premises, and a survey made thereon upon the 10th _January_
1786. The defendant, on the 20th _June_ 1785, entered a caveat
against the claims of the plaintiff, and on the 5th _October_
following, took out a warrant for the land in dispute, on which he
was then settled. Both claimed the pre-emption under the act of 21st
_December_ 1784,[28] and on the evidence given the facts appeared to
be:
That in 1773, one _James Hughes_, a brother of the plaintiff,
settled on the lands in question and made some small improvements.
In the next year he enlarged his improvement, and cut logs to build
an house. In the winter following he went to his father's in
_Donegal_ in _Lancaster_ county, and died there. His elder brother
_Thomas_ was at that time settled on the Indian land, and one of the
"Fair Play Men," who had assembled together and made a resolution,
(which they agreed to enforce as the law of the place,) that "if any
person was absent from his "settlement for six weeks he should
forfeit his right." [Quotation marks as published.]
In the spring of 1775 the defendant came to the settlement, and was
advised by the Fair Play Men to settle on the premises which
_Hughes_ had left; this he did, and built a cabin. The plaintiff
soon after came, claiming it in right of his brother, and aided by
_Thomas Hughes_, took possession of the cabin; but the defendant
collecting his friends, an affray ensued, in which _Hughes_ was
beaten off and the defendant left in possession. He continued to
improve, built an house and stable, and cleared about ten acres. In
1778 he was driven off by the enemy and entered into the army. At
the close of the war, both plaintiff and defendant returned to the
settlement, each claiming the land in dispute.
The warrant was taken out in the name of _James Hughes_, (the father
of the plaintiff who is since dead,) for the benefit of his
children.
After argument by Mr. _Charles Smith_ and Mr. _Duncan_ for the
plaintiff, and Mr. _Daniel Smith_ and Mr. _Read_ for the defendant,
Justice _Shippen_ in the charge of the court to the jury, said--
The dispute here, is between a first improvement, and a subsequent
but much more valuable improvement. But neither of the parties has
any legal or equitable right, but under the act of the 21st
_December_ 1784. The settlement on this land was against law. It was
an offence that tended to involve this country in blood. But the
merit and sufferings of the actual settlers cancelled the offence,
and the legislature, mindful of their situation, provided this
special act for their relief. The preamble recites their "resolute
stand and sufferings," as deserving a right of pre-emption. The
legislature had no eye to any person who was not one of the
occupiers after the commencement of the war, and a transient settler
removed, (no matter how,) is not an object of the law. This is our
construction of the act. _James Hughes_ under whom the plaintiff
claims, died before the war, the other occupied the premises after,
and in the language of the act, "stood and suffered." If this
construction be right, the cause is at an end.
Besides, the plaintiff claims as the heir of _Thomas_, who was the
heir of _James_, the first settler. I will not say that the fair
play men could make a law to bind the settlers; but they might by
agreement bind themselves. Now _Thomas_ was one of these, and was
bound by his conduct, from disputing the right of the defendant.
This warrant it seems, is taken out in the name of the father, and
it is said, as a trustee for his children. It is sometimes done for
the benefit of all concerned. If this be the case, it may be well
enough; but still it is not so regular, as it might have been[.]
With these observations, we submit it to you.
Verdict for the defendant.[29]
This case, although originated in the Northumberland County Court in
1786, was appealed to the State Supreme Court, where the lower court
decision was affirmed in 1791. The summary runs the gamut of Fair Play
procedures from settlement, through questions of tenure, to ejectment.
Its completeness indicates its usefulness. Partial and occasional
depositions in the other cases cited help to round out the picture of
the Fair Play "code."
For example, the right of settlement included not only the approval of
the Fair Play men, but also the acceptance of the prospective
landholder by his neighbors. Allusions to this effect are made in the
Coldren deposition as well as in the Huff-Latcha case. Eleanor Coldren's
deposition, made at Sunbury, June 7, 1797, concerns the disputed title
to certain lands of her deceased husband, Abraham Dewitt, opposite the
Great Island. Her comments about neighbor approval demonstrate the
point. She says, for instance, that
... in the Spring of 1775, Henry Antes and Cookson Long, two of the
Fair-Play Men, with others, were at the deponent's house, next below
Barnabas Bonner's Improvement, where Deponent's Husband kept a
Tavern, and heard Antes and Long say that they (meaning the
Fair-Play Men) and the Neighbors of the Settlement had unanimously
agreed that James Irvin, James Parr, Abraham Dewitt and Barnabas
Bonner should ... have their Improvement Rights fitted....
She speaks of the resolution of the claims problem "as being the
unanimous agreement of the Neighbors and Fair-Play Men...."[30]
William King, who temporarily claimed part of the land involved in the
dispute between Edmund Huff and Jacob Latcha, also refers to neighbor
approval in his deposition taken in that case. He said, "I first went to
Edmund Huff, then to Thomas Kemplen, Samuel Dougherty, William McMeans,
and Thomas Ferguson, and asked if they would accept me as a
neighbor...."[31]
Land tenure policy is noted by this same William King in the case of
_James Grier_ vs. _William Tharpe_. Repeating what we have already
pointed out in the case of _Hughes_ vs. _Dougherty_, King testified that
"there was a law among the Fair-play men by which any man, who absented
himself for the space of six weeks, lost his right to his
improvement."[32] In the Huff-Latcha case, King recounts the case of one
Joseph Haines who "had once a right ... but had forfeited his right by
the Fair-play law...."[33]
The forfeiture rule was tempered, however, in cases involving military
service. Bratton Caldwell's deposition in _Grier_ vs. _Tharpe_ is a case
in point. Caldwell, one of the Fair Play men in 1776, declared that
"Greer went into the army in 1776 and was a wagon-master till the fall
of 1778.... In July, 1778, the Runaway, John Martin, had come on the
land in his absence. The Fair-play men put Greer in possession. If a man
went into the army, the Fair-play men protected his property."[34]
Meginness mentions a similar decision in the case of John Toner and
Morgan Sweeney.[35] Sweeney had attempted to turn a lease for
improvements in Toner's behalf to possession for himself, but the
Northumberland County Court honored the Fair Play rule concerning
military service and decided in favor of Toner.
The summary process of ejectment utilized by the Fair Play men,
occasionally with militia support, is evident from William King's
deposition in the Huff-Latcha case. King, having sold his right to one
William Paul, recounts the method as follows:
William Paul went on the land and finished his cabin. Soon after a
party b[r]ought Robert Arthur and built a cabin near Paul's in which
Arthur lived. Paul applied to the Fair-play men who decided in favor
of Paul. Arthur would not go off. Paul made a complaint to the
company at a muster at Quinashahague[36] that Arthur still lived on
the land and would not go off, although the Fair-play men had
decided against him. I was one of the officers at that time and we
agreed to come and run him off. The most of the company came down as
far as Edmund Huff's who kept Stills. We got a keg of whisk[e]y and
proceeded to Arthur's cabin. He was at home with his rifle in his
hand and his wife had a bayonet on a stick, and they threatened
death to the first person who would enter the house. The door was
shut and Thomas Kemplen, our captain, made a run at the door, burst
it open and instantly seized Arthur by the neck. We pulled down the
cabin, threw it into the river, lashed two canoes together and put
Arthur and his family and his goods into them and sent them down the
river. William Paul then lived undisturbed upon the land until the
Indians drove us all away.[37] William Paul was then (1778) from
home on a militia tour.[38]
Although land disputes offer documentary evidence of the Fair Play
system, it seems quite likely that the tribunal's jurisdiction extended
to other matters. A few anecdotes, obviously based quite tenuously upon
hearsay, will suffice to illustrate. Joseph Antes, son of Colonel Henry
Antes, used to tell this story: It seems that one Francis Clark, who
lived just west of Jersey Shore in the Fair Play territory, gained
possession of a dog which belonged to an Indian. Upon learning of this,
the Indian appealed to the Fair Play men, who ordered Clark's arrest and
trial for the alleged theft. Clark was convicted and sentenced to be
lashed. The punishment was to be inflicted by a person decided by lot,
the responsibility falling upon the man drawing the red grain of corn
from a bag containing grains of corn for each man present. Philip Antes
was the reluctant "winner." The Indian, seeing that the decision of the
"court" was to be carried out immediately, magnanimously suggested that
banishment would serve better than flogging. Clark agreed and left for
the Nippenose Valley, where his settlement is a matter of record.[39]
Another anecdote, if true, gives further testimony to the justice of
Fair Play. In this instance, a minister and school teacher named Kincaid
faced the Fair Play tribunal on the charge of abusing his family. Tried
and convicted, he was sentenced to be ridden on a rail for his
offense.[40] Here again, the tale, though legendary, is made plausible
by the established fact of Kincaid's residence in the area.[41]
Doubtless the most notable political action of the Fair Play settlers is
their declaration of independence, which Meginness calls "a remarkable
coincidence" because "it took place about the same time that the
Declaration was signed in Philadelphia!"[42] Aware, as were many of the
American colonists in the spring and summer of 1776, that independence
was being debated in Philadelphia, these West Branch pioneers decided to
absolve themselves from all allegiance to the Crown and declare their
own independence. Meeting under a large elm on the west bank of Pine
Creek, mistakenly known as the "Tiadaghton Elm," the Fair Play men and
settlers simply resolved their own right of self-determination, a
principle upon which they had been acting for some time. Unfortunately,
no record of the resolution has been preserved--if it was actually
written. However, the names of the supposed signers, all bona fide Fair
Play settlers, have been passed down to the present.[43]
As every careful historian knows, no declaration was signed in
Philadelphia on July 4, 1776, except by the clerk and presiding officer
of the Continental Congress. Consequently, the Pine Creek story arouses
justifiable skepticism. However, there does seem to be some evidence to
substantiate this famous act.
First of all, Fithian's _Journal_ gives insight into the possible
motivation for such independent action. In an entry for Thursday, July
27, 1775, he writes of reviewing "the 'Squires Library," noting that
"After some Perusal I fix'd in the Farmer's memorable Letters."[44]
Fithian was reading John Dickinson's _Letters from a Farmer in
Pennsylvania_, which he had come across in the library of John Fleming,
his host for a week in the West Branch Valley. Dickinson's dozen
uncompromising epistles in opposition to the Grenville and Townshend
programs both inspired and incited liberty-lovers. Furthermore, Fleming
himself was a leader among the Fair Play settlers, and may have been
aroused to action by the eloquence of Dickinson's expression. Every idea
is an incitement to action and the ideas of _Letters from a Farmer_,
which made Dickinson the chief American propagandist prior to Thomas
Paine, reached into the frontier of the West Branch Valley.
The best contemporary evidence in support of the Pine Creek declaration
is found in the widow's pension application of Anna Jackson Hamilton,
daughter-in-law of Alexander Hamilton, who was one of the early settlers
and a prominent leader along the West Branch of the Susquehanna. Mrs.
Hamilton, whose pension application and accompanying statement were
made in 1858, lived within one mile of the reputedly historic elm. In
her sworn statement she says, "I remember well the day independence was
declared on the plains of Pine Creek, seeing such numbers flocking
there, and Independence being all the talk, I had a knolege of what was
doing."[45] Her son John corroborates this in his statement that "She
and an old colored woman are the only persons now living in the country
who remembers the meeting of the 4th of July, 1776, at Pine Creek. She
remembers it well."[46] Mrs. Hamilton was ninety years old at the time
of her declaration, which was made some eighty-two years after the
celebrated event.[47]
Following the outbreak of the Revolution and the meeting of the Second
Continental Congress, the Fair Play system of the West Branch Valley was
soon augmented by another extra-legal organization, the Committee of
Safety. Ostensibly created for the purpose of raising and equipping a
"suitable force to form Pennsylvania's quota of the Continental Army,"
it soon exercised executive authority dually with the assembly.[48] The
Council of Safety was instituted as the successor to the Committee of
Safety by a resolution of the Provincial Convention of 1776, then
meeting in Philadelphia to draw up a new constitution for Pennsylvania.
It was continued by an act of the assembly that same year. It functioned
from July 24, 1776, until it was dissolved on December 6, 1777, by a
proclamation of the Supreme Executive Council.[49] Locally, however,
the township branches continued to function and were still referred to
as "committees."
It appears from the resolutions and actions of the local committee that
the Fair Play men maintained jurisdiction in land questions, but that
all other cases were within the range of the committee's authority. In
fact, a resolution dated February 27, 1776, asserted that "the committee
of Bald Eagle is the most competent judges of the circumstances of the
people of that township."[50] This resolution was made in conjunction
with an order from the county committee to prevent the loss of rye and
other grains which were being "carried out of the township for
stilling."[51] Although cautioned against "using too much rigor in their
measures," the committee was advised to find "a medium between seizing
of property and supplying the wants of the poor."[52] The county
committee even went so far as to recommend the suppression of such
practices as "profaning the Sabbath in an unchristian and scandalous
manner."[53] In April of 1777, the county committee required an oath of
allegiance from one William Reed, who had refused military service for
reasons of conscience.[54]
Although Bald Eagle Township did not, at this time, extend into Fair
Play territory,[55] it is interesting to note that the local committee,
whose three members frequently changed, often included settlers from
that territory or those who were in close association with the Fair Play
men.[56] The Revolution apparently gave a certain quasi-legality to the
claims of the "outlaws" of the West Branch Valley.
One further political note is worthy of mention. After Lexington and
Concord and the formation of the various committees of safety, the
civil officers of Bald Eagle Township, that is to say the constable,
supervisor, and overseers, were often chosen from among settlers on the
borders of, or actually in, Fair Play territory.[57]
The politics of fair play then was nothing more than that--fair play. It
was a pragmatic system which the necessities of the frontier experience,
more than national or ethnic origin, had developed. The "codes" of
operation represented a consensus, equally, freely, and fairly arrived
at--a common "law" based upon general agreement and practical
acceptance. There were subsequent appeals to regular courts of law, but,
surprisingly enough, in every instance the fairness of the judgments was
sustained. No Fair Play decision was reversed. Furthermore, the
frequency of elections and the use of the principle of rotation in
office were additional assurances against the usurpation of power by any
small clique or ruling class. Popular sovereignty, political equality,
and popular consultation--these were the basic elements of fair play.
FOOTNOTES:
[1] _Colonial Records_, X, 95. The Fair Play settlers were outlawed by a
proclamation of the Council signed by Governor John Penn on Sept. 20,
1773. The proclamation was issued "strictly enjoyning and requiring all
and every Person and Persons, already settled or Residing on any Lands
beyond the Boundary Line of the Last Indian Purchase, immediately to
evacuate their illegal Settlements, and to depart and remove themselves
from the said Lands without Delay, on pain of being prosecuted with the
utmost rigour of the Law." The "Last Indian Purchase" referred to here
is, of course, the Stanwix Treaty of 1768.
[2] Smith, _Laws_, II, 195.
[3] Richard W. Leopold and Arthur S. Link (eds.), _Problems in American
History_ (Englewood Cliffs, N. J., 1957), p. 22. The entire first
problem in this excellent text deals with the question of authority in
American government.
[4] This Fair Play system was certainly not unique, for other frontier
societies employed the same technique, even down to the ruling tribunal
of three members. See Solon and Elizabeth Buck, _The Planting of
Civilization in Western Pennsylvania_ (Pittsburgh, 1939), pp. 431, 451.
However, it must be pointed out that the Bucks' "Fair Play" reference is
based on Smith, _Laws_, II, 195, which Samuel P. Bates used in "a
general application of the practice to W. Pa. areas after 1768," in his
_History of Greene County, Pennsylvania_ (Chicago, 1888). This was the
interpretation given in a letter from Dr. Alfred P. James to the author,
July 17, 1963. Dr. James also says that "It is possible that there are
evidences of Fair Play Men titles in the court records of Washington and
Greene Counties."
[5] This designation was often employed to classify those settlers who
took up lands beyond the limits of the Treaty of Fort Stanwix in 1768,
that is to say, west of Lycoming Creek on the north side of the West
Branch of the Susquehanna.
[6] Russell, "Signers of the Pine Creek Declaration of Independence," p.
5. Mrs. Russell, whose historical accuracy can be verified through her
indicated sources, refers to old borough minutes of Jersey Shore as her
source for the names of the tribunal of 1776, namely, Bartram Caldwell,
John Walker, and James Brandon. Upon discussing the matter with her, I
learned that a clipping from an old Jersey Shore paper, now lost, which
described the minutes, was her actual source. However, adequate
documentation and meticulous research characterize her work.
Furthermore, Bratton Caldwell (he signed his name Bartram) is also
labeled a Fair Play official by Linn, "Indian Land and Its Fair Play
Settlers, 1773-1785," p. 422. Linn's identification comes in the case of
_Greer_ vs. _Tharpe_, Greer's case being a pre-emption claim on the
basis of military service.
[7] "Eleanor Coldren's Deposition," _Now and Then_, XII (1959), 220-222.
The deposition reads "That in the Spring of 1775, Henry Antes and
Cookson Long, two of the Fair-Play Men, with others, were at the
deponent's house...."
[8] Oscar T. Barck, Jr. and Hugh T. Lefler, _Colonial America_ (New
York, 1958), pp. 258-260. Although Barck and Lefler indicate in this
section on "The Colonial Franchise" that universal suffrage did not
prevail in the colonies, they do note the significance of "free land,"
of which Fair Play territory was an excellent example.
[9] _Ibid_, p. 260.
[10] William Cooke to James Tilghman, _Pennsylvania Archives_, First
Series, XII, 286-287.
[11] _Pennsylvania Archives_, Fourth Series, III, 545-546.
[12] _Report of the Commission to Locate the Site of the Frontier Forts
of Pennsylvania_ (Harrisburg, 1896), I, 390, 392, 394-418.
[13] Smith, _Laws_, II, 195.
[14] Linn, "Indian Land and Its Fair-Play Settlers," p. 424. This six
weeks provision is noted in the deposition of John Sutton in the case of
_William Greer_ vs. _William Tharpe_, dated March 13, 1797.
[15] _Ibid._, 422. Bratton Caldwell, one of the Fair Play men, indicates
this practice in his deposition in the _Greer_ vs. _Tharpe_ case.
[16] "Eleanor Coldren's Deposition," pp. 220-222.
[17] Linn, "Indian Land and Its Fair-Play Settlers," pp. 422-424.
William King, in his deposition taken March 15, 1801, in _Huff_ vs.
_Satcha_ [sic], in the Circuit Court of Lycoming County, notes the use
of a company of militia, of which he was an officer, to eject a settler.
Linn errs in his reference to the defendant as "Satcha." The man's name
was Latcha, according to the Appearance Docket Commencing 1797, No. 2,
Lycoming County.
[18] _See_ nn. 6 and 7, p. 33.