The Crooked Lake Review

Spring 2004

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Steps West

The Field Notes of
Col. Hugh Maxwell's Pre-emption Line Survey
in the Phelps and Gorham Purchase


John M. Robortella

Summary by John M. Robortella of his historical essay and transcription
The transcription of the field notes of Col. Hugh Maxwell was made as a volunteer project for the Geneva (NY) Historical Society. The Geneva Historical Society is a community-based organization founded in 1883. The Society collects, preserves and interprets the historic and cultural heritage of the Geneva, N. Y., area and operates the Prouty-Chew Museum, the Rose Hill Mansion, the Mike Weaver Drain Tile Museum, Balmanno Cottage and the Fund for Historic Geneva.


FOR MORE THAN TWO CENTURIES, questions have lingered about the survey of the Pre-emption Line, the eastern boundary of the Phelps and Gorham land purchase in western New York State. The line was to have run due north from the 82nd milestone on the Pennsylvania border along a geographic meridian to Lake Ontario.1 Oliver Phelps planned to make his land office headquarters at Kanadesaga, a Seneca settlement near present-day Geneva, N.Y. According to reckoning by eye even on the most rudimentary maps of the day, a line drawn north from the 82nd milestone on the Pennsylvania line would pass through Seneca Lake. The Indian settlement would be just west of the line and on the Phelps and Gorham Purchase.

Mr. Phelps hired an experienced surveyor of impeccable credentials—Hugh Maxwell, a Revolutionary War veteran—to make the survey. But in Col. Maxwell's trial survey of June 1788 and his formal survey in July and August of that year, the Pre-emption Line veered to the west. He realized from the trial survey that the course was not following a meridian. He reached the vicinity of present-day Routes 5 and 20 about four miles west of Kanadesaga and the north end of Seneca lake and writes that, "the general course for fifteen or sixteen miles is bearing west of North.2 He did not realize that the general course was bearing west of north from the very start of the survey at the Pennsylvania line. He was closer to a meridian when he ran the formal survey, coming out about a mile west of the settlement and the lake, but the line was still bearing west.

Shown on 1794 map by A. Porter

From the results of the trial survey, Mr. Phelps became aware that the line was not where he thought it would be. Without hesitation, he instructed his land agent, William Walker, to move headquarters to Canandaigua, about 15 miles west and a settlement that was certain to be on the Purchase.

Why was Col. Maxwell's important survey line skewed to the west? Early historians could only speculate on the answer. Some say it was the surveyor's error, that he did not compensate for the variance between due north on a meridian and the magnetic north pole to which his compass pointed. Others suggest it was fraud, that members of a competing land company infiltrated the survey team and deliberately ran the line to the west to keep the settlement of Kanadesaga outside of the Phelps and Gorham Purchase. Still others write that the colonel went to Geneva for supplies, or became ill and went home to Massachusetts, and that his assistants made the error in his absence.3

Col. Maxwell kept a notebook of his surveys. When he completed his work in 1789 he took it with him to his home in Heath, Mass. It remained in his possession until his death, when it was passed down to his children and grandchildren. Historians writing during the period from 1788 to 1882 perhaps never knew that the notebook existed. It is not cited in any of the published literature until 1882 when Charles F. Milliken, editor of the Ontario County Times, a Canandaigua, N. Y., weekly newspaper, met two of Col. Maxwell's granddaughters, Abby and Thyrza Maxwell. They made available to him the survey field notes and the letters that Col. Maxwell had written to his wife from western New York. Mr. Milliken transcribed portions of these documents for publication. Another grandchild, William Monroe Maxwell, sent the original notebook to Mr. Milliken in Canandaigua where he and George S. Conover4 studied it and published excerpts and reports in the Times in 1883 and 1884.

Theirs was the first research to use the primary source material. In fact, until Mr. Milliken and Mr. Conover read the notes and published their findings, apparently even the dates of the colonel's surveys of the Pre-emption Line had not been publicly known.5 And because earlier historians and writers did not have access to the notes and letters, they had gone past mere suggestion or speculation and had published conjecture and theories that clouded the history of the survey.

Mr. Conover describes the Maxwell letters as "one of the greatest historical treasures that has of late been brought out."6 Before Mr. Milliken returned the materials to the Maxwell family, Mr. Conover transcribed everything in longhand. His transcripts are now in the Ontario County (N.Y.) Historical Society in Canandaigua. The original pages are now housed in the Prouty-Chew Museum of the Geneva (N.Y.) Historical Society. The original letters have not been located at the time that this book went to press.

The original pages of the notebook are in no special order, something that Mr. Milliken discovered when he received them in 1882. "They were mixed indiscriminately…" He wrote to Mr. Conover, "but I succeeded in sorting out from the rest and arranging the notes made on the survey of the Pre-emption Line, and you will find these tied together with a black thread."

Mr. Milliken had been hoping that the field notes would solve the mystery of why the Pre-emption Line did not run due north. They did not, however, and he expressed his disappointment about that in a January 31, 1883, letter to Mr. Conover, an excerpt from which appears below. However, by studying the notes and letters, he was able to substantiate that Col Maxwell himself was present for the entire running of the Pre-emption Line, a fact that at least eliminated one historical suggestion that the colonel's assistants had run the line incorrectly during his absence.

I am disappointed to find that the old manuscript is not a diary after all, but is [?] the field notes made by Col. Maxwell while engaged in making the survey. I fear that they do not contain much of value, though you may be able to extract some good from these. They were mixed indiscriminately when I received them, but I succeeded in sorting out from the rest and arranging the notes made on the survey of the Pre-emption Line, and you will find these tied together with a black thread. You will see that they contain notes in Col. Maxwell's own handwriting on every mile [?] From the time the party left the Pennsylvania line to the time they struck lake Ontario. There is not a single break, and, unless you allow Col. Maxwell accepted the others made by others in his absence and transcribed these into his private record, it must follow that he was present and participated in the survey of every mile. Is not this the natural conclusion—that the survey was interrupted by his visit to Geneva and was not resumed until his return[?]7

Mr. Milliken, ever the news reporter looking for a scoop, was hoping beyond hope that the original notes would solve the mystery of the skew in the line, and that if he could not discern it from the notes, then maybe Mr. Conover could.

"P.S." Mr. Milliken writes to Mr. Conover, "if you do discover any new light in regard to the Pre-emption Line and the work of Col. Maxwell, please write it up for the Times."

Mr. Milliken returned the original survey notes to the Maxwell grandchildren. The notes remained in the Maxwell and Rickets families (by marriage) and eventually came into the possession of Henry A. Rickett of Riverside, R. I. In 1964, Elmer F. Davenport of Shelburne Falls, Mass., obtained the notes from the Rickett family, studied them, and in 1965 made a typewritten transcript of most of the pages.

The pages of the notebook are small, about four inches by six inches; many are faded and stained and both Mr. Conover and Mr. Davenport were able to decipher some sections that are no longer legible today. Mr. Davenport augmented his transcription with his own research and presented a copy to the Genva Free Library. He then gave the orginal notebook to his daughter, Mrs. Fred L. Reynolds of Geneva, and she presented it to the Geneva Historical Society in 1965. At the time of the donation, the manuscript was stored in the vault of the Geneva Free Library until the Historical Society prepared a secure and fireproofed repository. It was brought to the Historical Society vault on March 20, 1973.

The Conover work is valuable because it is a complete transcription of the entire notebook, albeit in longhand, and was made almost a century before the Davenport transcription when the notes were in a better condition. Mr. Davenport and his daughter are credited with saving the notes and returning them to Western New York, a contribution that assures that the materials will be preserved for the future.

Today some of the sections of the survey notes are in a remarkable good state of preservation and have the original thread binding intact; other sections are illegible. This transcription, the third, is arranged in chronological order as best as can be determined by the dates that are recorded in the notes. Several undated pages with no town or range references are placed near the end. Col. Maxwell wrote most of the notebook. However, he had the assistance of other surveyors in running the lines of the interior towns of the Phelps and Gorham Purchase and they wrote some of the descriptions.

The assistance of the curators and researchers at the Prouty-Chew Museum of the Geneva Historical Society, at the Geneva Free Library, at the Oliver House Museum of the Yates County Genealogical and Historical Society in Penn Yan, N. Y., at the Ontario County Historical Society in Canandaigua and at the Department of Rare Books and Special Collections at the University of Rochester is gratefully acknowledged.

Appreciation is extended to Jane Davis, historian of the Town of Jerusalem (Yates County, New York), and John Marks, curator of the Prouty-Chew Museum, for reading the manuscript and providing thoughtful insights and suggestions.

In addition, the work of Alice Dunn, L.S., of Webster, N. Y., and J. L. Hollowell of Hockessin, Delaware, (formerly of Yates County, N.Y.), is especially welcomed and recognized. Ms. Dunn is a land surveyor who has researched the technical aspects of Col. Maxwell's surveys and the historical surveys of New York State. Mr. Hollowell studied the original Maxwell notebook and the estimated values of magnetic declination for Yates County from 1788 to 1994. His work has confirmed that Col. Maxwell indeed was following a magnetic compass course during the running of the Pre-emption Line in 1788. Ms. Dunn and Mr. Hollowell have generously shared their findings and expertise from their many collective years of study.

With so much assistance having been given when asked, and with help and cooperation from the curators and librarians of the societies and libraries that have preserved these documents, a flawless report is expected. However, errors, omissions and misinterpretations, where they occur, remain my responsibility alone.

J. M. R.

Canandaigua, New York

October 2002

Notes in the Foreword

1. Lockwood R. Doty, ed., History of the Genesee Country, Vol. 1 (Chicago: The S. J. Clarke Publishing Company, 1925), Chapter XI, "The Genesee County," by Charles F. Milliken, p. 348.
2. Col. Hugh Maxwell, survey field notes entry dated June 16, 1788. In 1965, Mrs. Fred L. Reynolds donated the original notebook to the Geneva (N.Y.) Historical Society. It is housed in a vault of the Society's Prouty-Chew Museum.
3. Lewis Cass Aldrich, ed., History of Yates County, N.Y. (Syracuse, N.Y.: D. Mason and Company, Publishers, 1892), Chapter VI, p.69, undated reprint by The Higginson Book Company, Salem, Mass.
4. George S. Conover: Chairman of the Board of Supervisors of Seneca County, N.Y., 1856, President of the Village of Geneva, 1873 - 1875, 1877 - 1879; author of an early history of Geneva, N.Y.; Compiler and editor of General Sullivan's Indian Expedition, 1779, published by the Secretary of State of New York, 1887; author of Kanadesaga and Geneva, an extensive, two-volume unpublished work.
5. George S. Conover, discussing the Maxwell notes in an article in the Ontario County Times, Wednesday, January 17, 1883.
6. George S. Conover, quoted in the Ontario County Times, Wednesday, January 17, 1883.
7. Charles F. Milliken, in a letter to George S. Conover, January 31, 1883, quoted from the original document housed in the Ontario County Historical Society, Canandaigua, N.Y.

July 25, 1788
From the 82 mile stone
120 rods, the groth is Beech,
Maple, birch, ash, Basswood
and Hemlock mixt.
120 rods mixt with white
pine and chestnut, the land
falling of to the North
east gradualy.
80 Rods through a considerable
mixture of black birch, maple
and Beech, not much Hemlock,
the land prity level, to
small brook running east
which mile brought me to
a small brook, the land prity
low and moist, the brook
running to the east.
one Mile
2nd mile
120 Rods but little hemlock
A great deal of Black Birch,
Beech, Maple and some chestnut.

First page of formal survey of the Pre-emption Line
First Range, Town Number 1: 1st and 2nd miles

Copy of field notebook of Col. Hugh Maxwell
with adjoining transcription


The Field Notes of Col. Maxwell

WESTERN NEW YORK STATE is the ancestral home of the Seneca, one of the six nations of the Iroquois Confederacy. European interest and influence were felt here as early as the 1600's and sovereignty over the region was in immediate conflict. Because of "off-hand grants by two English kings," as author Arch Merrill describes, New York State and the Commonwealth of Massachusetts both claimed the Genesee Country—the land between Seneca lake and Lake Erie. Mr. Merrill writes, "Massachusetts based her claim on a grant by Charles I in 1629 to the Massachusetts Bay Colony of a strip of land extending to the Pacific Ocean. New York claimed the territory by reason of a grant made by Charles II to his brother the Duke of York in 1664."1

The conflicting grants were not an immediate problem. The kings and duke had never been here. There were no roads, towns or improvements, and the Seneca remained in possession of the land. There were few visitors.

But the situation changed after the American Revolution. George Washington sent General Sullivan and his army into western New York to forcibly remove the Native Americans. Villages, cropland and orchards were destroyed. The Seneca fled to the west. This land was now the frontier of the new nation, and its settlement became a priority for the government.

Massachusetts petitioned the Continental Congress in 1784 under Article IX of the Articles of Confederation to resolve the ownership dispute, but before the Federal court could act, the legislatures of New York and Massachusetts appointed representative commissioners with full authority to settle the land claim issue themselves.2 Their meeting, known as the Hartford Convention, opened on November 30, 1786, in Hartford, Connecticut. In a remarkably short period of time, on December 16 of that year, they reached an agreement—Massachusetts would receive the pre-emption right of the soil, that is, the right to offer the land for sale after the Indian title had been cleared. After the land was sold, New York State would receive sovereignty.3 News of the agreement was first published in The Massachusetts Gazette on Tuesday, March 13, 1787, and Friday, March 16, 1787.4

The commissioners established the eastern boundary of the settled land claim as a meridian line extending north from the 82nd milestone on the Pennsylvania-New York state line to Lake Ontario. It became known as the Pre-emption Line.

Two New England investors—Oliver Phelps and Nathaniel Gorham—both wanted to buy the land from Massachusetts. They knew that whoever made the first purchase would buy at its lowest price. The property could then be surveyed into towns and lots, improved with roads, and sold in smaller parcels at a profit.

Soon after Massachusetts became possessed of the pre-emption right by deed of cession from New York, he (Phelps) resolved upon being interested in the purchase of one million acres; and for this purpose associated himself with Judge Sullivan, Messrs. Skinner and Chapin, William Walker, and several of his friends in Berkshire. Before they had matured their plans, however, Nathaniel Gorham had made proposals to the (Massachusetts) Legislature for the purchase of a portion of the Genesee lands. Mr. Phelps had a conference with Mr. Gorham, and to prevent coming in collision, they mutually agreed, that Mr. Gorham should merge himself with the association and consider his proposition as made for their common benefit. He had proposed the purchase of one million acres, at one and six-penny currency per acre, payable in the "public paper of the commonwealth."5

At the Massachusetts legislative session of 1787, the House of Representatives agreed to the Phelps and Gorham proposal, but the Senate did not approve. In a letter to one of his associates, Oliver Phelps wrote, "we found such opposition in the Senate, and so many person's ears and eyes wide open, propagating great stories about the value of those lands, that we thought best to postpone the affair until the next session."6 What Phelps did not come right out and say was that the opportunity to get rich quick whetted the interest of others. More investors wanted "in" on the ground floor, including some of the senators.

By the next legislative session, the Phelps and Gorham association had grown. "Another compromise was made which admitted new partners, and embraced all who had any intention of purchase, in one association, of which Messrs. Phelps and Gorham were constituted the representatives," writes Orsamus Turner.7

On March 31, 1788, Massachusetts enacted legislation to sell Phelps and Gorham the entire territory settled by the Hartford Convention—six million acres in western New York State. The price was one million dollars in the depreciated currency of Massachusetts (300,000 pounds in consolidated securities of the Commonwealth, or 2,000 pounds specie together with 290,000 pounds in like securities). The investors bought on credit. Payment was to be made in three annual installments, plus interest, beginning in 17898. The shareholders held a meeting and appointed General Israel Chapin to explore the land.

The agreement also required Phelps and Gorham to clear the Indian title to the land, at their expense, before offering the property for sale. The legislature appointed the Reverend Mr. Samuel Kirkland to supervise the investors' dealings with the Native Americans and to assure that the Indians were treated fairly. His assistant was Elisha Lee, Esq., of Boston.

The Phelps and Gorham Purchase, as it became known, was finalized when Massachusetts governor John Hancock issued the proclamation of the agreement on April 23, 1788.9

Although the majority of the associated remained in Massachusetts and waited for their investment to pay off, Mr. Phelps became a hands-on administrator. The first installment payment of a third of a million dollars was due in one year and there were still two major issues to be resolved before the land office could open—the Indian claim had to be settled and the property had to be surveyed into towns.

Mr. Phelps hired Col. Hugh Maxwell (April 23, 1733 - October 14, 1799), a Revolutionary War veteran from Heath, Massachusetts, to establish the Pre-emption Line by survey and then subdivide the purchase into towns of six miles square using the Pre-emption Line as the all-important point of reference. Col. Maxwell, a war hero, had survey education and experience, impeccable credentials and an unblemished reputation. He was known as the "Christian patriot."10

On May 12, 1788, Col. Maxwell set off from Heath and caught up with Mr. Phelps, Mr. Lee, and the Reverend Kirkland on May 16th at Canajoharie, N.Y. From there the four men rode to Fort Stanwix (near present-day Rome, N.Y.), Where they left their horses and traveled the rest of the way by boat (via the Mohawk River, the Seneca River and the Seneca Outlet) to Kanadesaga, the site of the Indian settlement that General Sullivan's army had destroyed near present-day Geneva, N.Y., at the north end of Seneca Lake.11 By reckoning, Mr. Phelps thought that the Pre-emption Line would pass through the lake and that Kanadesaga would be just west of the line and within the Purchase. It was here that Mr. Phelps and his agent, William Walker, planned to open their land office and headquarters. They had also expected to meet a contingent of Indians here, and reach an agreement with them for acquiring title to their land.

The men arrived at the settlement on June 2nd, and both Col. Maxwell and Mr. Phelps wrote letters two days later. Col. Maxwell wrote to his wife:

Kanadasaga, June 4, 1788

My Dear,

You may remember that on the twelth day of May I parted with you. Our fears were then grate that I should be obliged to pass the large and lonesome way through the infrequented wilderness from Fort Stanwix to this place alone or with a guide. But when I arrived at Albany on the Wednesday after I parted from you I found myself very agreeably disappointed in learning that Mr. Phelps had been there but about forty eight hours before me, and that it was very likely I should overtake him at Schenectady which is about seventeen miles further on, on the Mohawk river. I therefore lost no time but push on and arrive at Schenectady on Thursday morning when I found that Mr. Phelps, Mr. Kirkland and Mr. Lee had set out the afternoon before about the time I was in Albany. I therefore without stopping pursued them, but as they were well mounted they had proceded near forty miles before I over took them. We then proceded by land up to Fort Schuyler and to Fort Stanwix where we left our horses and took to our boats, but by the heavy rains the streams were raised to such a height that we could not arrive at this place until the day before yesterday.

The Indian chiefs are not yet come, therefore the treaty has not yet commenced but we expect them in this week. What the tone of the treaty will be is by no means certain tho I cannot but hope and believe it will turn out favourably for the company.

The country through which I have passed exceeds my expectations in richness of soil and pleasantness of situation, and yet I am told by gentlemen that are acquainted with the land lying off from the water that the soil is much richer and better.—This place is situated on the north west shore of the Seneka lake which is most delightful situation. The lake opening a prospect of twenty miles southward towards Pennsylvania and Mr. Kirkland tells me that it extends to within eighteen or twenty miles of Pennsylvania's line and that the lands between are the best kind.

There are many Indians here of different tribes or nations, some Oneidas, some Onondagoes, some Jenesee, some Tuscaroras, all getting drunk, both of men and women, and waiting for their sachems or chiefs to come and attend the treaty, which I hope will be over soon as there will not be much business done here in my way until their affairs are settled…

In a letter to Samuel Fowler written on June 4, 1788, Mr. Phelps writes, "I am well pleased with what I have seen of the country. This place is situated at the foot of Seneca Lake on a beautiful hill, which overlooks the country around it, and gives a fine prospect of the whole lake. Here we propose building a city as there is a water carriage to Schenectady with only two carrying places of 1 mile each."12 This indicates that Mr. Phelps believed upon arrival that Kanadesaga would be within the Purchase.

The Reverend Kirkland also writes about the journey:

Stockbridge. May 7th, 1788. Set out from Stockbridge for the Indian Country. Detained in Schenactedy by the high water & my company not coming on, whom I expected up mohawk river, till the 14th Inst.

14 Wednesdy. At the last meeting [of] the Board in Boston in April, it was proposed that I should make an excursion into the Senekas Country & obtain a {greater} knowledge [of] their situ[ation], &c.

June 2. Mondy. About 11 Clock, reached Kanudasegea. At this place a consider[able] number [of] the six Nations are already convened in expect[ation] of a general treaty…13

The Reverend Kirkland gives a further description of the party's arrival at Kanadesaga in his manuscript journal at the New York State Library in Albany:

The 2d of June arrived at Kanadasegea, where it was expected to find the Indians already convened, for the purpose of a treaty. The Hon. Mr. Phelps informed me that Col. John Livingston and others of the New York Company of Lessees had contracted with him for a certain number of shares, to extinguish by purchase of the native Indians, in the Massachusetts cession or pre-emptive right which was to be effected by the first of June. That the time was now passed and nothing like to be done on their part. He, the said Phelps, had determined to take measures to bring about a treaty with the Seneka Indians and dissolve the contract with said Lessees. But upon making known his intentions, Dr. Benton14 and [Ezekiel] Gilbert15, agents for the N. York company, requested him with such importunity to give them a further opportunity, that he had consented.16

In the passage above, the Reverend Kirkland refers to the "Lessees," the "nickname," if you will, of a group of about 80 investors from eastern New York State, based in Columbia County, described as wealthy and influential. They—along with Mr. Phelps, Mr. Gorham, and the other Massachusetts investors—realized the bounty, beauty and potential for profits in western New York, and they, as well, wanted to get "in" before settlement and development drove up prices. Their problem was that Massachusetts and New York had come to an agreement that the New York State constitution prohibited individuals and business from purchasing land from the Indians. The state alone reserved the right to deal with the Seneca and the other nations of the Ho-dé-no-sau-nee.

To get around this, these investors formed the New York Genesee Land Company. Its principal managers were John Livingston, Major Peter Schuyler, Dr. Caleb Benton, and Ezekial Gilbert. At the same time a branch company was being organized in Canada—the Niagara Genesee Land Company—formed by British subjects Col. John Butler, Samuel Street, John Powell and others, and Benjamin Barton, an American. They sought to use Col. Butler's influence with the Six Nations for their financial benefit.17

On November 30, 1787, less than a year after Massachusetts and New York had worked out their legal agreement, the New York Genesee Land Company negotiated a 999-year lease on all the lands of the Six Nations in New York State, except for some small reservations. They agreed to pay the Iroquois an annual rent of 2,000 Spanish milled dollars payable on July 4th of each year and a bonus of $20,000. Inasmuch as they were leasing the land from the Indians, the investors and their companies were referred to as the "Lessees."

The Lessees thought they had pulled a fast one by getting around New York's prohibition on private individuals buying land from the Indians. After all, they hadn't purchased the land, they merely were leasing it for nearly a millenium. They immediately started selling their "leases" to willing buyers, renting the land instead of selling it to these settlers who had little understanding of the difference and probably no knowledge that the transactions were unconstitutional in New York State.

"Recognizing that their title was somewhat tenuous, to say the least, the Lessees were ready to offer land in the Genesee country at bargain rates," writes historian Herbert A. Wisbey, Jr.18 One of their first buyers was James Parker, acting on behalf of Jemima Wilkinson, the Publick Universal Friend, who with her followers planned to relocate from New England and Pennsylvania to western New York to establish her "New Jerusalem." Parker went to Lessee headquarters in Hudson, N.Y., and on April 14, 1788, wrote to colleague Abraham Dayton that he had purchased six townships "as good Title as to any land in the world and the best land I ever seen in this world."19

The rejoicing was short lived. New York Governor George Clinton denounced the Lessee maneuver, warned the Iroquois that they were victims of fraud, and declared lessee title to western New York lands null and void. Settlers who had made "purchases" from the Lessees were out of luck—no money and no land. The Lessees, apparently, made no refunds. Although Parker initially bragged that he had saved the Universal Friend's society "near a hundred Thousand Dollars for Friends," they had lost thousands under the scheme.20

The Lessees' unsuccessful maneuvers were examples of the lure of Western New York on investors. The new nation provided unprecedented opportunity. Here was a chance to reap immediate profits, but the unconstitutional actions of the New York Genesee Land Company and the Niagara Genesee Land Company caused undue hardship to many newcomers. (Later, two of the Lessees—John Livingston and Caleb Benton—still incensed by the state's renunciation of their leases, circulated a petition urging the people of Otsego, Tioga, Herkimer and Ontario counties to break away from New York State and form a new state, presumably one that would allow private individuals to buy and sell land from the Indians. That proposal, too, failed.21)

Even though the Lessees had been discredited, they still held tremendous influence with the Indians. When he and the party arrived at Kanadesaga, Mr. Phelps soon learned that from a practical standpoint he would have to negotiate with the Lessees, as well, whether he liked it or not.

Mr. Phelps had expected that representatives of the Six Nations would meet him at Kanadesaga. But the Lessees were detaining the Indian delegation at Niagara. In a letter to his wife written on June 8, 1788, from Kanadesaga, Col. Maxwell describes the situation:

My health has been very good ever since I came from home, but have been very much fateagued in getting our boats up the river, which was very high and rapid by reason of the great rain which had falen, but we arrived without any accident. Our horses also have come on and in very good order. I have been through the woods some to reconnoiter the land, which I find to be very good, but I have not yet began the survey, nor shall I do so, until the treaty with the Indians is over. When that will be I can not yet tell, for it has not yet commenced, nor will it come on this ten days yet, and then how it will prove is very uncertain so that you may inform Thompson22 that he need not to come onto the place, for the business is not determined. Nor is it yet determined when I shall come home, or what I shall do here. We are all waiting for the Indian chiefs to arive. We have traveled through the country of the Oniko, the Oneidas, the Onondago, the Cayuga and we are now in the country of the Seneca. The Jenessee and the Tuscaroras are farther to the west of us and I supose that I am now a little to the southward of west from you or perhaps about west from Northampton and the situation not only agreeable but delightsome.

With time wasting, Mr. Phelps, ever the businessman, decided to act. He went to Niagara himself to try and break the Lessees' hold on the Indians and convince them to come to Kanadesaga to negotiate. Reverend Kirkland writes:

Mr. Phelps soon learned that the Indians were being held back at Buffalo Creek, and that a strong influence was being used to prevent them from coming to Kanadesaga to treat with Livingston. After waiting sometime, he finally proceeded to Niagara and succeeded in securing the cooperation of Col. John Butler, Samuel Street, and the Mohawk chief, Capt. Joseph Brant, and then returned to Kanadesaga, where he remained until a deputation of chiefs arrived and conducted him to the council-fire at Buffalo Creek…23

Mr. Phelps then quickly returned to Kanadesaga and waited for the "deputation of chiefs" to escort him to the Buffalo Creek council. The chiefs arrived about June 18th or 19th, for on Saturday, June 21, 1788, the entourage left the settlement for Buffalo Creek. Reverend Kirkland described the journey:

Saturday, June 20th [21], 12 Clock, set out from Kanadesegea for Buffaloe Creek to attend a treaty with the Sic N[ations], in company with Dr. Benton, Gilbert, Dean24, & a Mr. Barton 25 & Johnson26 from said place, also a number of the Seneka Chiefs, and Mos Debarge. Reached the lake called Kanandaiaqwe about 16 miles [of] Kanadasegea. The first four miles passed thro' the old fields of the ancient Seneka town called Kanghsadegea. Then entered a swamp, or low lands, thick tember'd about 5 miles thro', in the middle of which a good stream called in English Flint Brook…

26 [27] Friday. Set out early traveled most [of] the forenoon in the rain. The knats & musketoes very trouble-some. About noon arrived at the Cayogo settlement on Buffaloe Creek, from thence accompanied by a number [of] Indians down to the Seneka Settlement. On our arrival here found [them] all assembled, & a house prepared for our accommod[ation]. Being first conducted there, rested a few minutes, when a message came [from] the Chiefs, requesting our attendance in counsel at the counsel house to receive a congratulatory address on our safe arrival. We were conducted from the counsel house by their messenger, which was crowded [from] one End to the o[ther], beside near 100 of the young warriers who were [gathered] lying on the ground. Having taken our seats & lighted our pipes, the Cayogos Chief called the fish carrer [carrier] arose & in the name [of] the Six N[ations] addressed us in a very handsome manner, & welcomed our arrival. Observed in the close [of his] speech that their chiefs were not all arrived & [therefore] they were not ready to proceed to busi[ness].27

Orsamus Turner also writes about Phelps's negotiations with the Lessees and the Indians:

He [Phelps] had by this time discovered that there was a "screw loose" between the "New York Genesee Company" and the "Niagara Genesee Company" and that they were pulling in different directions. Inferring that the balance of power was in the hands of the Niagara Company, Mr. Phelps taking the Indian trail, proceeded to Niagara, where he met Butler, Brant and Street. He secured their co-operation, and they agreed to procure a gathering of the Indians at Buffalo creek for the purpose of holding a treaty with him. Mr. Phelps, rejoined his friends at Kanadesaga where he remained until a deputation of chiefs waited upon him to conduct him to the council fire they had lighted at Buffalo creek, where he and his party arrived on the 4th of July.

Negotiations were commenced. The Rev. Mr. Kirkland was present, appointed by a law of Massachusetts to superintend the treaty and see that no injustice was done to the Indians, and his assistant, superintendent, Elisha Lee, Esq. of Boston. The interpreters were James Deane and Joseph Smith, William Johnstone, Mr. Kirkland and several others. Besides these, there were also present, John Butler, Joseph Brant, Samuel Street, the officers of Fort Niagara. The Lessees, following up Mr. Phelps, were represented by John Livingston, Caleb Benton and Ezekiel Gilbert. Chiefs of the Onondagas, Cayugas, and the Mohawks were also present.

On the opening of the council, Mr. Phelps produced the commission given him by the governor of Massachusetts: had it interpreted, and made a speech, explaining the object of the treaty; the right he had purchased of Massachusetts, &c. Most of the Seneca chiefs, of which there was a pretty full delegation present, were for selling a portion of their lands. They, however, stood out as to the quantity. They had come to the treaty, determined upon making the Genesee river the eastern boundary of their cession, and they stoutly resisted innovation west of it for several days, but finally yielded, and fixed the western boundary as it was afterwards established. Mr. Phelps, in a statement he made of the transactions, says, "the council was conducted in a friendly and amicable manner." The negotiation then turned upon the price to be paid, and Mr. Phelps and the Indians failing to agree, they mutually appointed John Butler, Joseph Brant, Elisha Lee, as referees, who agreed that Mr. Phelps should pay for the tract purchased, five thousand dollars, and an annuity of five hundred dollars for ever. The Indians had consented to take for the quantity of land they were conveying, a sum which would amount to a fair proportion of what the Lessees had agreed to pay for their whole country, and this was the basis upon which the price was fixed.28

And from the Reverend Kirkland: "…and on the 8th the treaty was concluded, by which Phelps and Gorham obtained a cession of land, estimated at 2,600,000 acres."29

Before he had concluded his deal with the Senecas, Mr. Phelps had to show them that he had good faith towards their friends, the Lessees. In a word, Phelps bought their cooperation. He gave the Lessees four townships in the Phelps and Gorham Purchase to quiet their opposition to his negotiations with the Indians—Town No. 6, Town Number 7 and Town No. 8 in the First Range and Town No. 9 in the Second Range. Phelps also deeded Town No. 9 in the First Range directly to Caleb Benton and John Livingston. And he made sure that the Indians knew what he had done for their friends.

When he was finished, Mr. Phelps had secured the title to about 2,600,000 acres. The boundary on the east was the soon-to-be-established Pre-emption Line; on the south, the Pennsylvania-New York state line; to the north, Lake Ontario, and on the west, a line running north from the 124th milestone on the Pennsylvania-New York border to roughly the area of present-day Avon, N.Y., Then west another 12 miles to a point (today plotted at 77° 59' 46.6" longitude, 42° 56' 47" latitude30), then north to Lake Ontario. Orsamus Turner describes the western boundary as follows:

Beginning in the northern line of Pennsylvania, due south of the corner or point of land made by the confluence of the Genesee river and the Canaseraga Creek; thence northwardly along the waters of the Genesee river, to a point two miles north of Canawagus village; thence running west twelve miles; thence running northwardly, so as to be twelve miles distant from the western bounds of said river to the shores of Lake Ontario.31

In an uncommon act of benevolence, one of the Lessees, Caleb Benton, granted James Parker and the society of Universal Friends the title to 1,104 acres in a strip of land six miles long and 92 rods wide in the vicinity of Seneca lake that came to be known as the Garter. This was all that the society received for its £800 that Parker had paid to the New York Genesee Company. According to Dr. Wisbey, "Parker's unhappy bargain-hunting wiped out most of the capital of the smaller investors in the Society and shattered the plans to help the poorer members of the society located in the new settlement. Jonathan Botsford, who advanced money to Parker, expecting to receive one thousand acres of land, complained that his share from the Lessee Company grant came to only thirteen or fourteen acres."32

While Mr. Phelps was making his two trips away from Kanadesaga—the first to Niagara and the second to Buffalo Creek—Col. Maxwell, Capt Benjamin Allen (a eastern New York State merchant and a prominent member of the Lessee company), and three assistants left the encampment on June 10, 1788, and rowed to the south end of Seneca Lake. Then they set off on foot to the Pennsylvania border, to make a trial survey of the Pre-emption Line. They landed at Catherine's Town33 on June 11th, arrived at Newtown34 on foot on June 12th ("the day rainy," Col. Maxwell writes), and began a the trial survey on June 13th.

The field notes of the trial survey describe the soil conditions and timber along each mile, but make no indication of how Col Maxwell determined the course of the line. In order to run the line along a true meridian, he would have had to compensate about two degrees-40 minutes for the variation of the magnetic compass reading, which would be pointing to the magnetic north pole. However, it is clear from the resurvey of the Pre-emption Line by Judge Augustus Porter in 1794, from George Conover's study of the field notes in 1883, and from modern-day calculations such as those of J. L. Hollowell, that Col. Maxwell did not compensate for the magnetic variance and followed a magnetic compass heading. As a result, the trial line veered to the west by about two degrees-40 minutes from Col. Maxwell's very first steps west at the Pennsylvania border.

On June 16, 1788, he reached the area of present-day routes 5 and 20 and writes, "We proceeded on six miles this day, then turned our course to the east four miles wanting two chains and came to the lake." He had come out about four miles west of where Mr. Phelps had reckoned that the Pre-emption Line would be. Even the rudimentary maps of the day had given the investors the opinion that a line drawn north from the 82nd milestone on the Pennsylvania border would have passed through Seneca Lake and continued north through Sodus Bay to Lake Ontario. Now, Col. Maxwell and his assistants, making their trial survey, came out four miles west of Seneca Lake.

Even before he left for the Buffalo Creek negotiations on June 21st, Mr. Phelps knew that the Pre-emption Line was not where he thought it would be. Mr. Conover writes in the Ontario County Times on March 28, 1883, that, "…he at that time must have been aware that the East line of the cession when run would pass west of Geneva, and that he would not have any share in the ownership of the place where he had first intended to build the city."

It seems that Phelps and company accepted the position of the trial line without question and incorrectly believed that Kanadesaga was outside of the Purchase. Col. Maxwell and his crew waited for the outcome of Mr. Phelps's negotiations with the Indians until mid-July. In postscripts to a letter dated July 9, 1788, Col. Maxwell writes to his wife:

July 11-Thompson is come. He is well, and will stay a few days until Mr. Phelps returns from Buffaloe Creek, and we expect him every hour; we also hear that the treaty with the Indians is concluded, and that I shall have to proceed on the business of the survey as fast as possible. But I shall stay until Mr. Phelps arives and get instructions from him, and know in what manner he will have it done.

July 13-Mr. Phelps is come, the treaty is finished, and finished at Buffeloe Creek, and I expect work enough to do in my way. But whether I shall begin to survey and locate towns here or go to Jenessee and begin there is all uncertain, though I rather think I shall begin here. But be that as if may, may God give me strength both in body and mind to perform the work to his glory and the best good of the company, and return me home in his own best time, blest and prospered, and find you all in peace and safety and with hearts suitably disposed to love the Lord for all is mercies unto us through our whole lives…we are surrounded by about six hundred and seventy Indian men, women, and children, that are all living upon the company, and every day when they get their rum some of them and a considerable number get very drunk and are very troublesome. However, I hope their time with us here is short. The land in this country is exceedingly good, but it wants good inhabitants. I have no doubt but that in the course of a very few years there will be many worshipping assemblies of Christians where now the wild beasts howl, and that the time is not far distant when this wilderness shall blossom as the rose. However, these things are in the womb of futurity and will be brought about in the propper way and time, as also by the propper means, and although in the course of common events, yet not the less by the hand of the Great Governor of all things, and you must allow me to give it as my oppinion that there will be some pleasure in promoting so desirable, so glorious a work.

Mr. Phelps met with Col. Maxwell upon his return to Kanadesaga, and instructed Col. Maxwell to begin the survey of the Pre-emption Line. In a footnote, Orsamus Turner writes, "Mr. Phelps' intentions of founding a settlement at Geneva, which the reader will have noticed, was of course changed, when he found that according to the original survey of the pre-emption line, the locality was off from his purchase. Canandaigua was his next choice."35 Phelps, the Reverend Kirkland, Elisha Lee, and the others returned to Massachusetts. William Walker, Mr. Phelps's agent for surveys and sales, moved west to Canandaigua to establish the land office. Only Walker would remain in the Genesee Country until winter; then he, too, returned to Massachusetts.

Around July 20th, Col. Maxwell and his assistants, this time joined by William Jenkins, a surveyor representing the Lessees, set off from Kanadesaga down Seneca Lake to the Pennsylvania border to begin the survey of the Pre-emption Line. The survey formally began on July 25, 1788, and Col. Maxwell again describes the soil conditions and timber mile by mile. The Purchase was divided into towns six miles square, in seven ranges running from east to west, and numbered from south to north. The survey began at the southeast corner of Town No. 1 in the First Range. Conspicuous by its absence, Col Maxwell does not mention an allowance for the magnetic variance. He plots the line following a compass that was pointing to the magnetic north pole, and the line veers to the west.

Mr. Conover describes the beginning of the survey in the Ontario County Times on January 17, 1883:

From the very commencement of the work at the starting point on the Pennsylvania line there was a divergence from the true meridian, so that at the end of 45½ miles, as a point near the outlet of Crooked Lake (Keuka Lake, ed.), The line as run proved to be one mile, seventy-eight chains, and 25 links west of the true line, as afterwards run. If the line had continued to be run in the same direction it would have passed far enough to the west of Geneva for all practical purposes. It was at this point where, it is said, Col. Maxwell left for Geneva, and where "an abrupt offset was made" or "an inclination for a few miles almost in a northwesterly course," or according to another account, a "slight jog occurred in the line." The inference to be drawn from such language is quite wide from the actual facts. It is true, however, that a much greater inclination to the westward was made, and so great that in a distance of nearly three and one-half miles the distance from the true line had increased nearly fifty-six chains, and forty links west of the true line at a point nearly forty-nine miles distant from the starting part. There was no "jog," neither an abrupt offset, nor did it run anywhere near a northwesterly course.

From this last point there was an entirely new departure in the course of the line, so that it ran a little east of north, and at the end of sixty-five miles it was nearly one-quarter of a mile to the east of the previous point, and from there it run more due north until it reached Lake Ontario, being only about one-quarter of a mile farther west than it was at sixty-five miles.

The survey reached Town No. 9, First Range—the area of present-day routes 5 and 20—on August 7, 1788. Col. Maxwell had planned to take a short break at Kanadesaga and then resume the survey on August 8th. Plans changed and he expected to resume work on August 9th. Plans changed again, and in a letter he wrote to his wife he explains that he was delayed by a disappointment.

Kanadasagea. August 8, 1788

My Dear,

Col Reed this moment asked me what I should find to write to you and Capt. Dickinson asks me if I am going to write to you the circumstances and situation of our affairs. I make them but little answers; but I have enough to write, I think. If I had time I could write a volume concerning our affairs, but I must be in haste. I came in yesterday from a tour of eighteen days in the woods, and did intend to have set out to day for a tour which I expect will hold me at least a fortnight, but for reasons it is put off till to morrow when I expect to set out as early in the morning as I can. My last tour was to Pennsylvania and the next will be to lake Ontario. My health hitherto has been prity good, though the fatiague is exceding great, but I feel a hope that I shall be enabled to stand it through until fall…

August 9, 1788

My Dear,

By disappointment which happened to me this morning, I have not gone to the woods to day…

Why was Col. Maxwell disappointingly detained? Perhaps he became aware that he should have been allowing a variance to compensate for the compass pointing to magnetic north. In any event, he resumed the survey on Monday, August 22, 1788. As shown on the Porter map from 1794, Col. Maxwell's work from Town No. 10 north to Lake Ontario was different. The line followed a more northerly course, as if on a meridian. Clearly something happened during the colonel's few days at Kanadesaga that changed the course of the survey.

On August 21, 1788, Mr. Phelps, now back in Massachusetts, grew worried about the location of the Pre-emption Line. He wrote to Mr. Walker, his agent, "to make the most thorough and exact inquiry to find whether that place [Kanandesaga] falls within our purchase." On September 19, 1788, he writes to Mr. Walker again: "I am still dissatisfied about our east line. I am sure it cannot be right."36

Mr. Phelps's letters indicate that he seems to have had the impression that the Lessees (he called them the Yorkers) may have had something to do with the running of the line. In his essay, Judge Henry writes, "In a letter of later date (October 3rd) Mr. Phelps advised Mr. Walker, in order to avoid conflict with the Yorkers, to make 'Ye Outlet of Kennedarqua Lake,' his headquarters. Agent Walker on October 5, 1788, reported to the effect that as in his judgment nothing was to be gained by having the pre-emption line run again, he had selected west of Canandarqua Creek 'a beautiful situation and good ground for a town plot.' Thus the site of the village of Canandaigua was determined."37

The Phelps and Gorham Company Land Office in Canandaigua became the first real estate office opened in the United States for the sale of land to settlers. The first sale was town No 11 in the Third Range, in the area of present-day Farmington, N.Y. To a group of settlers from Massachusetts, "mostly Quakers."38

The investment for the Phelps and Gorham associates, however, did not succeed as planned. In about two years, the investors were unable to meet their payments to Massachusetts and were forced to return large tracts of unsold land to Massachusetts. Massachusetts resold the land to Robert Morris of Philadelphia, "the financier of the American Revolution," who at one time was the largest private landowner in America.

Mr. Morris wanted the question of the Pre-emption Line to be resolved. In November and December of 1792, Benjamin Ellicott, assisted by James Armstrong, Frederick Saxton and Augustus Porter, resurveyed Col Maxwell's original line and plotted what has become known as the "new" Pre-emption Line. By an act of the New York State legislature on March 24, 1795, Mr. Ellicott's survey map was procured by Simeon De Witt, the state's surveyor general. Mr. Ellicott attached an oath to the map, certifying that it was an "accurate representation of the eastern boundary of Massachusetts as run by himself and others."39

By another act of the State Legislature on April 6, 1796, the "new" Pre-emption Line map was duly attested by Mr. De Witt, filed in the office of the Secretary of State, and formally adopted as the final word on the location of the Pre-emption Line.

The land between the "old" and "new" lines—85,896 acres40— became known as "the Gore," and—that the land settlement of Western New York was not complicated enough already—added further difficulties for buyers, sellers and surveyors for decades to come.

Notes on
The Field Notes of Col. Maxwell

1. Arch Merrill, Pioneer Profiles (New York: American Book - Stratford Press, Inc. 1957), p. 19.
2. Lockwood R. Doty, ed. History of the Genesee Country, Vol I (Chicago: The S. J. Clarke publishing Company, 1925), Chapter XI, "The Genesee Country" by Charles F. Milliken, pp. 346 - 347.
The commissioners to the Hartford Convention appointed by Massachusetts were John Lowell, James Sullivan, Theophilus Parsons and Rufus King. The commissioners appointed by New York State were James Duane, Robert R. Livingston, Robert Yates, John Haring, Melancton Smith and Robert Benson.
3. Doty, ed. Milliken, pp. 347 - 350.
The agreement provided:
"First the Commonwealth of Massachusetts doth hereby cede, grant, release, and confirm to the State of New York forever, all the claim, right and title which the Commonwealth of Massachusetts hath to the government, sovereignty and jurisdiction of the lands and territories so claimed by the State of New York as hereinbefore stated and particularly specified.
"Secondly, The State of New York doth hereby cede, grant, release and confirm to the said Commonwealth of Massachusetts and to the use of the Commonwealth, their grantees and the heirs and assigns of such grantees, forever, the right of preemption of the soil from the native Indians and all other the estate, right, title and property (the right and title of government, sovereignty and jurisdiction excepted) which the State of New York hath of, in or to two hundred and thirty thousand and four hundred acres to be located by the Commonwealth of Massachusetts and to be situate in the northward of and adjoining to the lands granted respectively to Daniel Cox and Robert Lettice Hooper and their respective associates, and between the rivers Owega and Chanango:
"And also of, in or to all the lands and territories within the following limits and bounds, that is to say: Beginning in the north boundary line of the State of Pennsylvania in the parallel of forty-two degrees of north latitude at a point distant eighty-two miles west from the northeast corner of the State of Pennsylvania on Delaware River, as the said boundary line hath been run and marked by the commissioners appointed by the states of Pennsylvania and New York, respectively, and from the said point or place of beginning running on a due meridian north to the boundary line between the United States of America and the King of Great Britain; thence westerly and southerly along the said boundary line to a meridian which will pass one mile due east from the northern termination of the straight or waters between Lake Ontario and Lake Erie; thence south along the said meridian to the south shore of Lake Ontario; thence on the eastern side of the said straight by a line always one mile distant from and parallel to the said straight to Lake Erie; thence due west to the boundary line between the United States and the King of Great Britain; thence along the said boundary line until it meets with the cession from the State of New York to the United States; thence along the said line of cession to the northwest corner of the State of Pennsylvania and thence east along the northerly boundary line of the State of Pennsylvania to the said place of beginning; and which said lands and territories so ceded, granted released and confirmed are parcel of the lands and territories described in the said Petition.
"Thirdly, The Commonwealth of Massachusetts doth hereby cede, grant, release and confirm to the State of New York and to the use of the State of New York, their grantees and the heirs and assigns of such forever, the right of preemption of the soil from the native Indians, and all other the estate, right, title and property which the Commonwealth of Massachusetts hath, of, in or to the residue of the lands and territories so claimed by the State of New York as hereinbefore stated and particularly specified."
The agreement further provided (4) that the lands ceded to Massachusetts should, during the time the same should so be and remain the property of that state, be free and exempt from all taxes whatever and that upon transfer of said lands to others their occupants or proprietors should be subject only to town or county charges during a period of fifteen years following confirmation of the agreement.
(5) No rents or services should be reserved in any such grants by Massachusetts. It was also agreed (6) that occupants of said lands should have and enjoy the same and equal rights respecting the navigation and fishery on and in Lake Ontario and Lake Erie and the water communication from one to the other of said lakes, and respecting the roads and portages between the said lakes as should be had and enjoyed by the citizens of the State of New York.
(7) No adverse possession of the said lands for any length of time should be adjudged a disseizen of the Commonwealth of Massachusetts.
The State of New York agreed (8) not to relinquish government and jurisdiction of said lands, without consent of Massachusetts. Massachusetts was given the further right (9) to hold treaties and conferences with the native Indians relative to the property or right of soil with the employment of "such armed force as may be necessary for the more effectual holding of such treaty and conference."
It was provided (10) that the last mentioned commonwealth should have the right to grant the right of preemption of the whole or any part of said lands to "any person or persons who by virtue of such a grant shall have good right to extinguish by purchase the claims of the native Indians," provided that such purchase should be made in presence of and approved by a superintendent to be appointed by said state.
The final paragraph of this historic agreement (11) provided that grantees of the said lands under the Commonwealth of Massachusetts should be entitled, within six months after confirmation of their respective grants, to have certified copies of the same filed and recorded without fees or charges, with the secretary of the State of New York, without which formality every such grant should be adjudged void.
The commissioners, having been granted by their respective states, power, "legal and sufficient," "to settle and extinguish interfering claims and controversies between the two states, as well as in respect of jurisdiction as to property," to the end "that peace and harmony might be forever established between them on the most solid foundation," assumed by this agreement to bind their states independently of the loosely bound federation of states and its rights in the matter, and their right and authority to do so, however irregularly exercised, has not been legally questioned.
4. The Massachusetts Gazette, Tuesday, March 13, 1787 (Vol. VI, Number 312). A photocopy of this newspaper is housed in the Prouty-Chew Museum of the Geneva Historical Society, Geneva, N.Y.
5. Orsamus Turner, History of the Pioneer Settlement of Phelps and Gorham's Purchase, and Morris' Reserve (Rochester, N.Y.: William Alling, 1851), p. 136; reprinted in 1976 by James Brunner, Geneseo, N.Y.
6. Turner, p. 136.
7. Turner, p. 136.
8. Lockwood R. Doty, ed., Milliken, pp. 355 -356.
9. Lockwood R. Doty, ed., Milliken, p. 356.
10. Priscilla Maxwell (October 23, 1767 - September 7, 1851, the fourth of Col. Maxwell's seven children), The Christian Patriot: Some Recollections of the Late Col. Hugh Maxwell of Massachusetts (New York: S. W. Benedict, 1833).
11. Merrill, p. 22.
12. Oliver Phelps to Samuel Fowler, June 4, 1788, quoted in The Pre-emption Line, an undated essay compiled by A. Glenn Rogers from a manuscript by the Honorable Frederick T. Henry, Supreme Court Justice of Canandaigua (Rochester Public Library, 974.18 R724), p. 7.
13. Walter Pilkington, ed., The Journals of Samuel Kirkland, 18th-century Missionary to the Iroquois, Government Agent, Father of Hamilton College (Clinton, N.Y.: Hamilton College, 1980), pp. 138 - 142.
14. Pilkington, ed., pp. 150 - 151:
"Dr. Benton: Caleb Benton, born in Salesbury, Connecticut, a representative of the Lessees and a member of the New York Genesee Land Company, at the 1788 meeting with the Senecas. He was a member of the New York Assembly in 1797 and 1798. He later moved to Hillsdale, New York, where he was one of the first physicians. Thence he moved to Catskill, New York, where he died (O. Turner. History of the Holland Purchase, pp. 369 - 369; Columbia County Historical Society)."
15. Pilkington, ed., p. 151:
"Gilbert: Ezekiel Gilbert (1756 - 1841), born in Middletown, Connecticut; graduate of Yale; settled in Hudson, New York, as one of the town's founders; lawyer and member of the New York State Assembly in 1789 to 1801 and in Congress 1793 to 1797; a principal assistant with Caleb Benton, of Livingston in the New York Genesee Company (Dexter, Yale Biographies and Annals, 4th series, p. 33)."
16. This excerpt is from the Reverend Kirkland's manuscript journal, transcribed and quoted by George S. Conover and published in the Ontario County Times, March 28, 1883. Mr. Conover writes that the journal itself is in the New York State Library in Albany, N.Y.
17. Doty, ed., Milliken, pp. 356 - 359.
Mr. Milliken writes that even before Mr. Phelps and Mr. Gorham, et al., had concluded their purchase from the Commonwealth of Massachusetts, "covetous eyes had been cast upon the tract by men who conspired to obtain considerable shares of the property without due remuneration to the state, in which the title was soon to be vested." Many of those who have written about the Phelps and Gorham have made the Lessees the scoundrels of the story. About five months before governor John Hancock issued the proclamation of the agreement between the Commonwealth and the Phelps and Gorham association, the Lessees were negotiating with the Indians at Kanadesaga. Mr. Milliken writes that they "secured the execution of a lease for a term on nine hundred and ninety-nine years of 'all that certain tract of parcel of land commonly called and known by the name of the lands of the Six Nations of Indians, situate, lying and being in the State of New York, and now in the actual possession of the said chiefs or sachems of the Six Nations.' This instrument bore the date of November 30, 1787, and the yearly rental of 2,000 Spanish milled dollars was to be paid to the Indians on the 4th of July in each year."
18. Herbert A. Wisbey, Jr., Pioneer Prophetess: Jemima Wilkinson, The Publick Universal Friend (Ithaca, N.Y.: Cornell University Press, 1964), pp. 103 - 104.
19, Wisbey, p. 104.
20. Wisbey, p. 104.
21. Doty, ed., Milliken, pp. 359 - 360.
"While the leases were thus repudiated by New York State, the project of secession was so far nurtured by its promoters as to prompt two of them, John Livingston and Caleb Benton, to circulate petitions urging the people of Otsego, Tioga, Herkimer, and Ontario counties to join a movement for the organization of a new state embracing the whole of central and western New York.
"How this disloyal movement was received by the people of Ontario County, which then comprised everything west of the pre-emption line, may be seen by the resolutions adopted at a meeting of 'the Judges, Assistant Judges and a large majority of the Justices of the Peace, together with all the inhabitants convened from different parts of the county,' held at Canandaigua on November 8, 1793. Hon. Timothy Hosmer, first judge of the county, was elected chairman, and Nathaniel Gorham, Jr., clerk. The resolutions were as follows:
"Resolved, That the inhabitants of the county of Ontario, sensible of many advantages that they have derived from their connection with one of the most respectable States of the Union, and desirous of the continuation of the same advantages, highly resent the ill-timed and improper attempt made by the characters above alluded to [referring to promoters of the new state scheme] to disturb their peace and harmony, that they conceive their measure as pregnant with danger, and such as, if carried into effect, would introduce into our infant county all the complicated evils which anarchy and confusion can create.
"Resolved, That this meeting highly resent the threats made use of by the said persons, and conceive that, under the protection of the State of New York, they have nothing to fear from any banditti they can collect for the purpose of forcing them into measures which they heartily disapprove of.
"Resolved, That this meeting, fully impressed with the impossibility of the proposed state's defraying expenses of the most moderate government that can be devised, and aware of the impolicy as well as injustice of raising by enormous taxes on uncultivated lands such a revenue, or of devoting to those expenses property purchased under the faith of the State of New York and Massachusetts, and of drawing into our flourishing county people that such iniquitous measures would attract; recommend to the persons above alluded to, to persuade some more laudable ode of gratifying their ambition, and to desist from proceedings altogether hostile to our interest and welfare.
"Resolved, Also, that it is the opinion of this meeting that the proposed meeting at Geneva ought not to be attended, as it was called by strangers to the county, and that we will consider as inimical to the county such persons belonging to it, who, at said meeting, shall consent to any of the proposals before reprobated.
"Resolved, That this meeting, expect, after having made this public declaration of their situation, that those intrusted with the administration of the State, will take the most vigorous measure to suppress any of the attempts made to destroy the peace and quiet of this county."
22. Thompson - Major Thompson Maxwell (September 11, 1742? - 1835), the youngest brother of Col. Maxwell.
23. This excerpt is from the Reverend Kirkland's manuscript journal, transcribed and quoted by George S. Conover and published in the Ontario County Times, March 28, 1883.
24. Pilkington, ed., p. 151:
"Dean: James Dean (1748 - 1823). (George T. Chapman, Sketches of the Alumni of Dartmouth College, p. 14)."
25. Pilkington, ed., P. 151:
"Mr. Barton: Benjamin Barton (1771 - 1842), a native of Sussex County, New Jersey. Shortly after the Revolution, he engaged in the Indian trade as a drover of cattle for British garrison at Niagara, and became well acquainted with the Senecas. In 1788 he settled in Geneva, New York, and in 1807 removed to Lewiston, Niagara county. He was a member of the Niagara Genesee Company (O. Turner, History of the Holland Purchase, p. 392 - 395)."
26. Pilkington, ed., p. 151:
"Johnson: John Johnson, a British citizen of Canada, member of the Niagara Genesee Company (Alexander C. Flick, History of the State of New York, 5:151)."
27. Pilkington, ed., pp. 139 - 142.
28. Turner, pp. 139 - 140.
29. This excerpt is from the Reverend Kirkland's manuscript journal, transcribed and quoted by George S. Conover and published in the Ontario County Times, March 28, 1883.
30. Alice Dunn, L. S.
31. Turner, p. 140.
32. Wisbey, p. 105.
33. Catherine's Town - present-day Montour Falls, N.Y.
34. Newtown - a settlement east of present-day Elmira, N.Y.
35. Turner, p. 141.
36. Charles F. Milliken, A History of Ontario County, New York and Its People (New York: Lewis Historical Publishing Company, 1911), Vol. I, p. 16
37. The Pre-emption Line, an undated essay compiled by A. Glenn Rogers from a manuscript by the Honorable Frederick T. Henry. Supreme Court Justice of Canandaigua (Rochester Public Library, 974.18 R724), p. 9.
38. Stafford C. Cleveland, History and Directory of Yates County (Penn Yan, N.Y.: S. C. Cleveland, Chronicle Office, 1873), Vol. I, p. 26.
39. George S. Conover, editor; Lewis Cass Aldrich, compiler, History of Ontario County, New York (Syracuse, N.Y.: D. Mason & Company, Publisher, 1893), pp. 94 - 95.
40. Conover, editor, Cass Aldrich, compiler, p. 95.

Findings from the Field Notes of Col. Maxwell

The hoped-for conclusion of the review of the Maxwell notes and letters was to learn the answer to the question of the hour, of the year, of the decade, and of the past two centuries. Why did the 1788 survey of the Pre-emption Line veer to the west? Just as Mr. Conover and Mr. Milliken could not find a definitive answer in their examination of the materials in the late 19th century, this review also could not find the answer. The notes and letters, disappointingly, are silent on Company Maxwell's rationale in the running of the line. However, several items in the historical record have been corrected by this study, and the ever-present undertone that fraud was involved can be pushed further into the background.

Many of the historians writing about the Pre-emption Line in the 19th century did not know about, or have access to, Col. Maxwell's field notes and the letters that he had written to his wife. As a result, some of their conclusions were not based on the actual historical record and the story was clouded.

We now can correct a few of the 19th-century accounts of the survey.

In History of Yates County, N.Y. Edited by Lewis Cass Aldrich (Syracuse, N.Y.: D. Mason & Company Publisher, 1892; reprinted by the Higginson Book Company, Salem, Mass.), Aldrich writes that the survey of the Pre-emption Line was not made by Col. Maxwell: "But the work of surveying the east line was not performed by Colonel Maxwell nor under his immediate direction. He was taken ill about the time the survey began and was obliged to return to his home, while the running of the line devolved upon his assistants and subordinates. Among those engaged in this work were at least one or more who were directly the subservient tools of the New York Genesee Company, and who, at the command of their principles[sic], were dishonest enough to survey the line, not as contemplated by the letter and the spirit of the agreement between New York and Massachusetts…The sudden illness of Colonel Maxwell opened to the lessees a convenient opportunity to defraud Phelps and Gorham by inducing the assistant engineers to deviate from the correct line, or what should be the correct line, and establish the boundary to the westward of Kanadesaga or Geneva, thus throwing the coveted district without the Massachusetts tract and bringing it within the territory claimed by the lessees under their contract of lease with the Six Nations" (pp. 69 - 70).

Aldrich's conclusion that Col. Maxwell become ill and returned home is incorrect. Apparently Aldrich was trying to build a case that fraud was involved in the running of the line. Inasmuch as Col. Maxwell's reputation was impeccable and beyond reproach, Aldrich needed to create an excuse for the absence of Col. Maxwell if fraud was to be alleged.

But we discover from the notes and his letters that Col. Maxwell remained in western New York during the entire 1788 season and that he personally was in attendance during the complete survey of the Pre-emption Line, from Pennsylvania border to Lake Ontario, skewed to the west as it was. Not only did he remain in western New York all season, but also his brother, Thompson, came to visit. Col. Maxwell suffered no sudden illness that caused him to return home prematurely.

Other writers of the period also believed that fraud was involved in the running of the line. None of them dared to suggest that Col. Maxwell, the "Christian patriot," was involved. Col. Maxwell was a Revolutionary War veteran, a devout Christian, and a man of the highest principles and standards. His reputation was well known. Since the writers knew that he could never have participated in dishonest activity, they had to somehow remove him from the field and blame the alleged fraud on someone else. Without having the historical records of the colonel's notes and letters, the writers sometimes apparently took liberties. Had they known that the colonel was present for every mile, the allegations of fraud may not have continued as they have for more than two centuries.

In The History and Directory of Yates County, Volume One, by Stafford C. Cleveland (Penn Yan, N.Y.: S. C. Cleveland, 1873), Cleveland quotes from O'Reiley's "Incidental Notices of Western New York" incorporated with his Sketches of Rochester: "When within about twenty miles of Geneva, and a few miles below Hopetown, near to the creek by which the Seneca Lake receives the waters of the Crooked Lake, one of the surveyors, (Maxwell,) went to Geneva for supplies. Jenkins, meanwhile, continued surveying the line; and it was while he was thus alone that a slight jog occurred in the line, the prolongation of which northward, threw Geneva, the settlement at which had already attracted some attention, on the east side of the boundary; that side whereon it was most agreeable to Jenkins' employers it should continue" (pp. 23 - 24).

Although it is true that Col. Maxwell left the field for a brief break in Kanadesaga on August 7, 1788, the survey did not continue in his absence. He resumed work on August 11, 1788, taking the line from the area of present-day Routes 5 and 20 north to Lake Ontario. His notes and the letters to his wife are clear on his whereabout and the survey's progress.

In addition, O'Reiley writes that "a slight jog" occurred in the line of Col. Maxwell's absence. In fact, Col. Maxwell's survey line began to veer west right from the Pennsylvania border. The paths of his line and the "new" Pre-emption Line can both be seen on Augustus Porter's map dated 1794.

Orsamus Turner gives a description of Col Maxwell's Pre-emption Line survey in his History of the Pioneer Settlement of Phelps and Gorham's Purchase and Morris' Reserve (Rochester, N.Y.: William Alling, 1851; reprinted in Geneseo, N.Y., by James Brunner, 1976). Turner here is describing the westward skew: "It had commenced soon after leaving the Pennsylvania line, gradually bearing off until it crossed the out-let of the Crooked Lake, where an abrupt offset was made, and then an inclination for a few miles, almost in a north-west course; then as if fearful that it was running west farther than was necessary to secure a given object, the line was made to incline to the east, until it passed the foot of Seneca Lake, when it was run nearly north and south to Lake Ontario. All this will be observed upon any of the old maps" (p. 247).

But Turner, too, believed that fraud had been involved and that Col. Maxwell never could have played a part in it. Another illness was invented: "In speaking of this fraud, to the author, Judge Porter entirely exonerated Col. Maxwell, for whom, in common with all who knew him, he entertained a high respect. In fact, it turned out that Col. Maxwell was sick and obliged to trust the line to his associate at the time the fraud was committed" (p. 247).

Inasmuch as the colonel himself was present for the entire survey of the Pre-emption Line, and as his religious convictions and his nature never would have allowed him to participate in dishonest work, the possibility that fraud was involved becomes more remote.

As late as 1911, historians were still theorizing about the line (blunder or fraud) and exonerating Col. Maxwell. In A History of Ontario County, New York and Its People, Volume 1, by Charles F. Milliken (New York: Lewis Historical Publishing Co., 1911), p. 16 Mr. Milliken writes:

In the running of the Pre-emption line, in 1788, a blunder, or more probably a fraud, was committed which was the occasion of much subsequent controversy and embarrassment, and resulted in the selection by Phelps and Gorham for their headquarters, of "a beautiful situation and good ground for a town plot" west of Canandaigua lake outlet, instead of at Kanadesaga as first intended. The line which was run from the south was deflected toward the west at a point south of Seneca Lake. This was accomplished, at the instigation, it is believed, of unscrupulous lessees, during the temporary absence of Col. Hugh Maxwell, the surveyor representing the Massachusetts purchases, and when the line was brought back to the north, previous to or at Col. Maxwell's return to the work, it had been shifted enough to the west to pass westward of Geneva. Though it is generally conceded that Col. Maxwell was entirely unconscious of the deviation in the line, it was early suspected. Oliver Phelps, in a letter to William Walker, the agent who had been sent into the new country to open at Canandaigua what is entitled to be known as the first office for the sale of land to settlers ever established in America, wrote, September 19, 1788: "I am still dissatisfied about our east line. I am sure it cannot be right." But it was not corrected and Geneva brought back into Ontario County until 1793.

While it is easy to suggest that the representatives of the New York Genesee Land Company (known as the Lessees) somehow infiltrated the survey team to fraudulently skew the line to keep Kanadesaga out of the hands of Phelps and Gorham. Col. Maxwell was present during the survey of every mile. A fraud could not have been committed with him there.

In addition, what benefit would there have been for the Lessees? They had no standing with the New York State government. Their "long leases" with the Indians were ruled unconstitutional and the state governor discredited them. They had exerted all the pressure they could to force Phelps and Gorham to settle with them, and they did not leave empty handed. Phelps gave them four townships to stop their interference with his negotiations with the Indians.

The Lessees had to know that even if they had been successful in skewing the survey line, the error would have been discovered and corrected. They had done all they could to gain land in western New York for profit. Their illegal dealing with the Indians caused expense and delay for the Phelps and Gorham association and losses for the settlers who had "bought" ("leased") land from them. They were lucky that Phelps had agreed to the deal of four townships to eliminate their influence. Had he had the time, Phelps probably would have refused to settle and taken them to court. But he was under the pressure of having to make the first installment payment on the land to Massachusetts, and he did what he had to do to keep the purchase moving.

And the first question remains: Why was the survey line skewed to the west? Was Col. Maxwell wrong at all? His notes indicate no compensation for the magnetic compass variance in the running of the Pre-emption Line, but he does compensate for the variance in all of his surveys of the interior town lines.

And why was he disappointingly detained at Kanadesaga during his break from August 7 to 11, 1788, when he originally planned only to stay overnight and get right back to work on August 8th?

The few clarifications that this study has provided have led to many more questions.

© 2002, John M. Robortella


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