George Washington's Western Adventure

The general separately prepared a long legal brief that laid out both sides of the case, as he saw it. Washington had never prepared a legal argument, but he demonstrated such a grasp of the adversarial nature of the courts that one might have assumed him a member of the bar. Giving his own side of the story would clearly not be sufficient: He first would prepare the most persuasive arguments in favor of the defendants, and only then, Socratically, demolish them one by one. To make this point-counterpoint legal brief all the easier to follow, he wrote down the squatters' "Pleas" side by side with his "Answers."

Plea: "Supposing (they may say, because they have said it) that my Patent was originally good, yet, my right is forfeited for want of that cultivation and improvement which was required by Law, and which is conditional of the Grant."

Answer: "It may be asked how I could improve or cultivate the Land when they had taken possession of it & violently detained it from me? . . ."

Plea: "That one of the Defendants, in behalf of the rest had been sent to the Land Office of this State to ascertn the truth of the Report of my having a Grant of the Land; -- but finding no Record of the Patent or Survey, the presumption was, that none had ever been made . . ."

Answer: "Whether this search was really made, or not, is not for me to determine; but admitting it, it can be no reason why I should loose my right, because they did not, or even could not, discover a record of it . . ."

Plea: "Under these circumstances, and this conviction, they took possession; and at great expense have improved the Land; and ought not in Law or equity to be deprived of it."

Answer: "[T]hey knew this Land was reputed to be mine. That as soon as they set down upon it, they were so informed, and repeatedly warned off, and admonished of the consequences thereon . . . [If the law did not protect absentee owners], no one could be secure in Lands at a distance -- as possession & occupancy wd. set aside the best title, and put legal Right at defiance."

The legal brief ran pages and pages, covering every conceivable point of law and, more importantly, every shade of right and wrong.

PENNSYLVANIA SUPREME COURT Justice Thomas McKean, riding circuit in the western part of the state, presided over the trial in Washington, Pa., in October 1786. Because the record of the trial is extremely sparse, it is impossible to know if anyone involved asked for a change of venue to a community that had not been named after the plaintiff.

A flamboyant Pittsburgher represented the Seceders: Hugh Henry Brackenridge, the leading literary figure west of the mountains, a title for which, admittedly, there were few rival claimants. Brackenridge started the first newspaper in the West, having contrived, with a partner, to haul a printing press over the Alleghenies. He also wrote plays, pamphlets and a novel titled Modern Chivalry. He would someday be a savvy advocate of restraint during the Whiskey Rebellion, which would incite the wrath of then-President Washington. But that was in the future: There was no such thing yet as a U.S. president. For now, Brackenridge was a local lawyer taking on a case against a retired war hero.

Washington said he wanted to travel to western Pennsylvania for the trial, but he pleaded illness. Possibly he couldn't stomach another encounter with the western rabble.

Smith, Washington's attorney, took the case to trial with great anxiety. He'd never been more agitated, he later told Washington. He was a successful man, elected to public offices, but to represent such a client was clearly the pinnacle of his career. (No doubt he told his associates: Yes, the George Washington.) It could not have been a palliative to his nerves to be reminded with each letter from Mount Vernon precisely how much the client cared about the suit. Failure was not an option.

Smith spent months figuring out how to get a friendly jury and the best possible judge. He personally served many of the subpoenas to Washington County residents who had been named to the jury. He decided to "take the Bull by the Horns," as he later told Washington, and brought the first suit against James Scott Jr., the group's ringleader and the man with the strongest claim to ownership of the land. It was a smart move, because Smith would smoke out all the best arguments in favor of the Seceders' claim, but risk only the solitary defeat, reserving the chance to try the other cases with knowledge of what to expect. Smith called as a witness Charles Morgan, who had been with William Crawford when he had surveyed the land and who had seen Crawford pay five pounds to a man named Thomas Crooke to build a cabin on the property. Smith had many more witnesses as well, including another surveyor and several prominent members of the community.

Smith had one tremendous handicap: Washington's warrant to the land, as the general himself discovered unhappily in the summer of 1786, showed a date of 25 November 1773 -- "posterior," as Washington put it, to the arrival of the Seceders in October 1773. The date on the warrant was simply a bureaucratic mistake, but on paper, it appeared the Seceders had been on the property before Washington officially owned it. Washington hoped to dig up the original survey by Crawford, which would have showed a date of 1770 or 1771, but he learned that the survey and many other public documents had been destroyed by the British during their 1781 romp through Virginia.

The jury learned about the complex history of the land, the shifting jurisdictions, the missing paperwork, etc. Smith won an important ruling from the judge, who barred any evidence about improvements to the land. The trial began the afternoon of October 24, 1786, and lasted through the next day and until 11 in the morning of the 26th. There is no record of how long the jury deliberated, but Smith perceived that the jury wanted badly to give verdicts in favor of James Scott. "We had very strong prejudices artfully fomented to encounter," he told Washington. Yet even as Smith steeled himself for defeat, the jury came back with a verdict in favor of the general.

It is not entirely clear why a jury with natural sympathies for settlers sided with an absentee landlord, even one as famous as Washington. There were limited means in America for turning anyone into what would later be called a celebrity, and Washington himself hadn't appeared; the jury had to render a verdict in favor of someone far away and against James Scott, who was right there in the courtroom. Perhaps Smith, a lawyer of considerable talents, destined to be on the state Supreme Court, had managed to show beyond any doubt that the general had legitimate title to the land and had been unable to pay more attention to it because of his service to the country. Or perhaps the verdict was just another example of the Washington magic. Bullets couldn't hit him, and squatters couldn't defy him.

Smith persuaded Justice McKean to consolidate the other 12 cases, and that trial was quickly and efficiently concluded with yet another verdict in Washington's favor.

"You have now thirteen plantations -- some of them well improved," Smith informed the general, and then delicately raised the possibility that now would be a good time to back off and show these frontier families some mercy. "[They] are now reduced to Indigence; they have put in crops this season which are now in the ground they wish to be permitted to take the grain away. To give this hint may be Improper in me -- to say more would be presumptuous."

Smith advised Washington to employ an agent to take possession of the land immediately, because the squatters were likely to burn down all the houses and barns and even the fences. Washington turned to John Cannon, a major landowner, and asked him if he would handle the matter, ideally by demanding rent from the Seceders. Washington, softening a bit, indicated that he didn't want back rent from the past 12 years.

But the Seceders wanted nothing to do with Washington. They would not be his tenants. They would own their own land. The Mount Pleasant Township Warrantee Map, compiled from early plats, shows a kind of splatter effect from the explosive visit of Washington in 1784. Several of the Seceders obtained warrants for land adjacent to or near Washington's land. They pulled out their axes once again, hacked down trees, burned the stumps, broke the ground. For years, settlers had been pulling up stakes and moving toward deeper wilderness to start anew, and perhaps, as they scouted nearby land to settle, they could pretend they were another band of restless Americans. But just as surely a few of them thought of George Washington as they swung their axes at the oaks and pines and hemlocks of the Pennsylvania forest.

Washington's litigation would keep his grip on the land for another decade. In 1796, with western land speculation in full collapse, he sold the entire tract to a local agent for the modest sum of $12,000, though the agent defaulted on the mortgage and the general retained the land until his death. The property over the years went through many hands, including those of Washington's heirs. From beginning to end, this "body of fine Rich level land" would be vexatious.

Brackenridge many years later jotted down a postscript to the case: Washington, he thought, should have compensated the Seceders for the buildings and cultivated fields they were forced to abandon. Strictly as a matter of law, Brackenridge wrote, Washington did not have to pay them anything. "He could not be considered as under more than an imperfect obligation," he concluded. Washington may have thought that the state of Pennsylvania would compensate the Seceders, since their land had been taken from them in deference to Virginia's claim to sovereignty, in the 1770s, over what became southwestern Pennsylvania. But it was all moot, Brackenridge said.

"It remains now, not a matter of legal discussion, but of history."

Joel Achenbach is a Post staff writer. This article is adapted from his new book, The Grand Idea: George Washington's Potomac and the Race to the West (Simon & Schuster). He will be fielding questions and comments about this article Monday at 1 p.m. on www.washingtonpost.com/liveonline.