The Politics of Fair Play
The political system of these predominantly Scotch-Irish squatters in the Susquehanna Valley, along the West Branch, offers a vivid demonstration of the impact of the frontier on the development of democratic institutions. Occupying lands beyond the reach of the Provincial legislature, with some forty families of mixed national origin in residence by 1773, these frontier "outlaws" had to devise some solution to the question of authority in their territory.[1] Their solution was the extra-legal creation of de facto rule historically known as the Fair Play system. The following is a contemporary description of that system:
There existed a great number of locations of the third of April, 1769, for the choicest lands on the West Branch of Susquehanna, between the mouths of Lycoming and Pine creeks; but the proprietaries, from extreme caution, the result of that experience, which had also produced the very penal laws of 1768, and 1769, and the proclamation already stated, had prohibited any surveys being made beyond the Lycoming. In the mean time, in violation of all law, a set of hardy adventurers, had from time to time, seated themselves on this doubtful territory. They made improvements, and formed a very considerable population. It is true, so far as regarded the rights to real property, they were not under the protection of the laws of the country; and were we to adopt the visionary theories of some philosophers, who have drawn their arguments from a supposed state of nature, we might be led to believe that the state of these people would have been a state of continual warfare; and that in contests for property the weakest must give way to the strongest. To prevent the consequences, real or supposed, of this state of things, they formed a mutual compact among themselves. They annually elected a tribunal, in rotation, of three of their settlers, whom they called fair play men, who were to decide all controversies, and settle disputed boundaries. From their decision there was no appeal. There could be no resistance. The decree was enforced by the whole body, who started up in mass, at the mandate of the court, and execution and eviction was as sudden, and irresistible as the judgment. Every new comer was obliged to apply to this powerful tribunal, and upon his solemn engagement to submit in all respects, to the law of the land, he was permitted to take possession of some vacant spot. Their decrees were, however, just; and when their settlements were recognized by law, and fair play had ceased, their decisions were received in evidence, and confirmed by judgments of courts.[2]
The idea of authority from the people was nothing new; in fact, it is as old as the Greeks. Nor is the concept of a "social compact," here implied, particularly novel to the American scene. The theory was that people hitherto unconnected assembled and gave their consent to be governed by a certain ruler or rulers under some particular form of government.[3] Theoretically justified by John Locke in his persuasive defense of the Glorious Revolution, it had been practiced in Plymouth, Rhode Island, Connecticut, and New Hampshire, where practical necessity had required it for settlements occasionally made outside charter limits. The frontier, whether in New England or in the West Branch Valley, created a practical necessity which made popular consent the basis of an actual government.
They were not "covenanters" in the Congregational sense of having brought an established church with them to the Fair Play territory. But the Fair Play settlers understood and subscribed to the principle of popular control, which was fundamental to such solemnly made and properly ratified agreements. Separated from the authority of the crown, detached from the authority of the hierarchy of the church by the Protestant Reformation, possessing no American tradition of extensive political experience, these settlers could only depend upon themselves as proper authorities for their own political system.
Furthermore, the great majority of the settlers who came to the Fair Play territory came from families who had left their homes in the old country to escape political, economic, and social restrictions, only to be made unwelcome in their new homes in the settled areas of Pennsylvania. Displaced persons in a new country, they were forced by lives of conflict to seek better opportunity by moving to undeveloped lands. As a result, they settled along the West Branch of the Susquehanna, beyond the authority of the crown and outside the pressures of the Provincial legislature.
If man is a predatory beast in his natural state, a belief some expressed in the eighteenth century, then it follows naturally that every society must have some agency of authority and control. The universally standardized solution to the problem of social control is government. The Fair Play system was the answer on this Susquehanna frontier to the need for some legitimate agency of force.[4] This system vested authority in the people through annual elections of a tribunal of three of their number. The members of the tribunal were given quasi-executive, legislative, and judicial powers over all the settlers in the West Branch Valley "beyond the purchase line."[5]
Although no record of any of these elections has been preserved, the composition of the Fair Play tribunal in 1776 has been established and verified by subsequent reviews of land claims in the county courts.[6] Also, two of the members of the tribunal of 1775 are identified in a pre-emption claim made before the Lycoming County Court in 1797.[7] It is interesting to note that among these five men are represented the three most prominent national stock groups in the area, with the Scotch-Irish, as our earlier sample demonstrated, in the majority.
Lacking returns of the annual elections of the tribunal and minutes of its actual meetings, we have only Smith's Laws of the Commonwealth of Pennsylvania, petitions from the Fair Play settlers, and the subsequent review of land questions by the Northumberland and Lycoming County courts to evaluate the tribunal, its members, and its procedures. However, these data are more than adequate in giving us a picture of this de facto, though illegal, rule, which existed in the West Branch Valley until the Treaty of Fort Stanwix in 1784 brought the territory under Commonwealth jurisdiction. The composition of the electorate varied with the fluctuations in population caused by the two Stanwix treaties, the Revolution, and the Great Runaway.
Since property and religious qualifications were the primary prerequisites to voting at this time, it seems logical to assume that a similar basis for suffrage operated in the West Branch Valley.[8] Having no regular church—the first, a Presbyterian, was not organized until 1792—property qualifications appear to have been the basis for what, in this area, was practically universal manhood suffrage. Due to the fact that the entire settlement consisted of squatters, practically all of the heads of households were property holders, regardless of the questionable legality of their holdings. The tax lists indicate holdings of some 100 to 300 acres on the average for residents, so it is particularly difficult to know whether or not a minimum holding requirement prevailed. The Provincial suffrage requirement in this period was generally fifty acres of land or £50 of personal property.[9]
Although this study encompasses a fifteen-year period from 1769 to 1784, it appears that the Fair Play system functioned for about five years, from 1773 to 1778. This is due to the fact that only "fourty Improvements,"[10] meaning forty family settlements, existed in the area by 1773, and that following the Great Runaway of 1778, the territory was almost devoid of settlers. The void was filled, however, when settlers began returning toward the end of the Revolution and following the accession of the territory in the second Stanwix Treaty, in 1784. Thus, for all practical purposes, the functioning of the Fair Play system was confined to this more limited time. Furthermore, the system was supplemented in 1776 by the introduction of the Committee of Safety, and later that year by the Council of Safety.[11]
As is indicated in Smith's Laws, annual meetings were held to select the governing tribunal of three for the ensuing year. Generally convened at some readily accessible place, these sessions were presumably held in the open or at one of the frontier forts erected in the area: Fort Antes, across the river from Jersey Shore; or Fort Horn, located on the south side of the Susquehanna about eight miles west of Jersey Shore. There were frontier forts in the vicinity of the present Muncy—Fort Muncy—and Lock Haven—Fort Reed; but Fort Muncy was some twenty-odd miles east of the Fair Play territory and Fort Reed was beyond the Great Island at its western extremity. As a result, these outposts were unlikely meeting places for the tribunal or for its election.[12] Unfortunately, there is no recorded evidence of a specific meeting of the Fair Play men.
The authority of the Fair Play tribunal extended across the entire territory from Lycoming Creek to the Great Island on the north side of the West Branch of the Susquehanna. However, most of the disputed cases, which can be verified by subsequent court reviews in either Northumberland or Lycoming counties, seem to have involved land claims in the area between Lycoming and Pine creeks. The tribunal accepted or rejected claims for settlement in the area and decided boundary questions and other controversies among settlers.[13] As to a specific code of laws, there is none of record. However, the cases subsequently reviewed in the established county courts refer to some of their regular practices. For example, any man who left his improvement for six weeks without leaving someone to continue it, lost his right to the improvement;[14] any man who went into the army could count on the Fair Play men (the tribunal) to protect his property;[15] any man who sought land in the territory was obliged to obtain not only the approval of the Fair Play men but also of his nearest potential neighbors;[16] and the summary process of ejectment which the Fair Play men exercised was real and certain and sometimes supported by the militia.[17]
The specific membership of the Fair Play tribunal is rather difficult to ascertain due to its failure to keep minutes of its proceedings and the absence of any recorded code. However, as indicated earlier,[18] the existence of the tribunal between the years 1773 and 1778, and its actual composition in 1775 and 1776, have already been established from the review of its decisions by the Circuit Court of Lycoming County. Assuming the principle of rotation from a contemporary description, some eighteen settlers held the positions of authority during the years noted.[19] The cases reviewed reveal the names of five of these eighteen. Recognizing the limitations of our twenty-eight per cent sampling, however, it is interesting to note that the three major national stocks are represented in this restricted sample. Furthermore, as was mentioned previously,[20] the Scotch-Irish settlers, being in the majority, enjoyed the majority representation on the tribunal. An analysis of leadership in the territory, to be developed more fully later, leads one to conclude that the Scotch-Irish, in the main, were the political leaders of the area.[21]
A diligent search of some sixty cases in the Court of Common Pleas in 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-à-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.