From Source:Morton, 1920:21-32
James, another son of Ephraim, had come in advance and planted a little field of corn in that valley opposite Woods Gap. The McDowells had come from Ulster in "the good ship, George and Ann," landing at Philadelphia, September 4, 1729, after being on the Atlantic 118 days. This was a slow voyage, even in those days of sailing vessels, and yet it was not unusual. As in many other instances among the Ulster people, Pennsylvania was only a temporary home. The country west and southwest of the metropolis, as far as the Susquehanna and the Maryland line, was now well-peopled, according to the standard of that agricultural age. Land was relatively high in price, and so the newcomers, if they had to move inland to the advance line of settlement .often thought they might as well look for homes in "New Virginia." John Lewis, a kinsman to the McDowells, had founded in 1732 the nucleus of the Augusta settlement, and by this time several hundred of the Ulster people had located around him.
Religion was not free in Virginia, but it was doubtless the belief of the newcomers that the planters of Tidewater, who were the rulers of the colony, would not deem it wise to molest them in their adherence to the Presbyterian faith. To afford the reader some idea of what Pennsylvania was in 1729, we give a synopsis of a letter written about that time by a young man to his sister in Ireland. The writer pronounces Pennsylvania
There must have been some regret among the Ulster people that it was not easy to secure a foothold in such a thriving district as the Philadelphia region. But America was a land of opportunity, whether on the coast or in the interior.
It was just after the McDowells had established their camp on Linville Creek that an incident occurred which led to some change in destination. A man giving his name as Benjamin Borden came along and arranged to spend the night with them. He told them he had a grant of 100,000 acres on the waters of the James, if he could ever find it. To the man who could show him the boundaries he would give 1,000 acres. John McDowell replied that he was a surveyor and would accept the offer. A torch was lighted, McDowell showed his surveying instruments, and Borden his papers. Each party was satisfied with the representations made by the other. At the house of John Lewis, where they remained a few days, a more formal contract was entered into, the phraseology of which indicates that it was written by Borden. The document reads as follows:
:’’Sept. ye 19th 1737 This day John McDowell of Orange County in Virginia have agreed with Benjamin Borden of the same place that he the said McDowell would go now with his family and his father and his Brothers and make four ettlements in the said Bordens land which was granted to the said Borden on this side of the blue ridge in the fork of said River, and said McDowell has also agreed with the said Borden that he the sd McDowell would cut a good Road for Horses loaded with common Luggage and blaze the Trees all the way plain, and also the said McDowell has agreed with the said ficnjamm Borden that he the said Mr- Dowel! would go with the sd Borden and take account of the Settlement of Borden Lind on the River at the place called the Chimbly Stone and on Smith Creek ; nd be evidence for the said Borden of all his settlements aforesaid, and in consideration oi the premises the said Borden is to give one thousand acres of Land when he the said McDowell build in the sd fork of the sd River and the sd Borden is to give the said McDowell good lawfull Deed as the said Borden can get of the King clear of all charges excepting the quitrents & also the said Borden do here agree to give to these the other three Settlements six hundred acres of Land clear of all charges as before excepted and the said McDowell is to go down with a compt (count) of all the Settlements as aforesaid with Borden to his House by the tenth day of October next to go with said Borden to Colo Willis to price the Settlements as aforesaid as witness my hand
The lands at the Chimney Stone and on Smith Creek lay in the lower Shenandoah Valley. Accompanied by John McDowell, Borden went on from Lewis's and camped at a spring where Midway now is. From this point the men followed the outlet of the spring to South River, and continued to the mouth of that stream, returning by a course. Borden could now see that he was within the boundaries of his grant. John McDowell built a cabin on the farm occupied by Andrew Scott in 1806. This was the first white man's settlement in the Borden Tract. The McDowells had never heard of this grant, and it had been their intention to locate in Beverly Manor.
All Virginia west of the Blue Ridge was until the establishment of Augusta and Frederick in 1738 a part of Orange county, and the seat of local government was near the present town of Orange. But so far as treaty engagements had any force, the Borden Tract lay in the Indian country. It was not until 1744 that the treaty of Albany was superseded by that of Lancaster. The former recognized the Blue Ridge as the border of the Indian domain. The latter moved the boundary back to the Indian Road, already mentioned. The red men were within their rights when they hunted in the Valley, or passed through on war expeditions. In point of fact the whites were trespassers. But the American borderer has seldom stood back from this form of trespass whenever he was in contact with desirable wild land. Borden remained about two years on his grant, spending a portion of the time with a Mrs. Hunter, whose daughter married a Green, and to whom Borden gave the place they were living on when he left. There is a statement that Borden sailed to England and brought back a large company of settlers. This is very doubtful. Such action was not necessary. He did advertise his lands, and to such effect that more than 100 families located on the Tract within the two years. But immigrants were arriving at Philadelphia almost every week, sometimes to the number of hundreds, and efficient advertising was certain to bring the desired results. When Borden went back to his home near Winchester, he left his papers with John McDowell, to whose house many of the prospectors came in order to be shown the parcels they thought of buying. Three years later he died on the manor-place he had patented in 1734. Benjamin Borden, Sr., came from New Jersey, where the name Borden- town commemorates an early settlement by the family. It is manifest that his education was meager. The language of his will, which resembles that of the contract given in this chapter, is boyish and crude, and defective in spelling and grammar. The personalty inventoried in the settlement of his estate made a total of $487. The house furnishings were simple and primitive, many of them being listed as "old" and of little value. The items include a servant man, two stallions and seventeen other horses, seventeen cattle, seven sheep, three small hogs, a silver watch scheduled at $10.42, a half-dozen chairs, and some carpenter tools.
In ready means Borden did not quite rank with some of the other early settlers of Frederick. But as a business man he was shrewd, alert, and tactful, and was what would now be styled a "plunger." Besides "Borden's Great Tract," and several much smaller patents in the valley of the James, he owned land in New Jersey and in several localities in the Shenandoah. On his homestead was a mill. It is said that he came to the frontier as a trader, and he unquestionably knew a good thing when he saw it. His prominence among the pioneers in the Valley is reflected in the fact that he was a justice of Orange and afterward of Frederick. William Edmondson relates that "old Mr. Borden was cunning and polite," and that he had heard older men laugh in telling of Borden's fertility of resource in meeting all objections. Where the timber was scanty, he was able to see "a fine young growth." Where the soil was poor, he "grandly observed fine sheep walks." • Benjamin Borden, Sr., was probably less than fifty years old when he died. His sons were Benjamin, Jr., John, and Joseph, the last named being a small boy at that time. His daughters were Hannah, Martha, Abigail, Rebecca, Deborah, Lydia, and Elizabeth. Four were already married, Hannah to Edward Rogers, Martha to William Fernley, Abigail to Jacob Worthington, and Rebecca to a Branson. Abigail subsequently married James Pritchard. After their father's death, Deborah married a Henry, and Elizabeth a Nicholas. Lydia married Jacob Peck, who came from Germany in 1745, and lived until 1797, to figure prominently in the Borden litigation.
The will left to Abigail, Rebecca, Deborrah, Lydia, and Elizabeth, "5,000 acres that is all good," out of the grreat tract on the James. The rest of his lands, excepting the homestead, which was willed to the sons, and in dower to Zeruiah, the widow, he ordered to be sold, and the proceeds divided equally between the widow, the sons, and six of the daughters. To Hannah, the remaining daughter, was given 800 acres of the homestead. The executors were the widow, Benjamin, Jr., and William Fernley, whose bond, with William Russell and John Hardin as sureties, was in the sum of 500 pounds. In 1745 the widow gave Benjamin, Jr., a power of attorney with respect to sales in the Great Tract, and the following year the latter came into exclusive control of it. The other sons conveyed their interest to Russell. According to one writer, the elder Borden was an agent for Lord Fairfax in settling the Northern Neck. This is very possible. But the statement by Henry Ruffner that he was a son-in-law to Colonel James Patton is incorrect.
A silly story has been repeated time after time to the effect that Borden and Lewis visited the capital with a buffalo calf and presented it to Governor Gooch, causing that dignitary to be so tickled as to sign away the title to 100,000 acres of the public domain. The buffalo never roamed in the Tidewater, yet was plentiful in the Indian meadows of the Valley, and was necessarily known to the governor. Gooch, who was one of the best of the colonial executives, was too sensible a man to be carried off his feet by the present of a shaggy, ungainly, and ungrown beast. As for Borden, he was not the man to lead the calf all the way to \Villiamsburg, without feeling some assurance that the childish proceeding would be worth his while. A colonial land-grant, like the one made in favor of Borden, was on stipulated conditions and with the concurrence of the Colonial Council. It is not in place to tell how and for what announced purpose such a large grant came to be made to a private person who was without aristocratic birth or connections. The immigrant to colonial Virginia, provided he was of age and could prove he had paid the cost of his passage from Europe, could claim a "head-right," entitling him to fifty acres of public land. He was further entitled to fifty acres for each male member of his household. He was required to settle on the land, to improve at least six per cent of the acreage, and to pay each year a quit- rent of one shilling for each fifty acres. On taking up a head-right, he paid a fee of five shillings. The tendency of this law was to fill Virginia with a substantial class of citizens. The working of it was much the same as that of the present homestead law of the Federal government. But the governor, with the concurrence of the Council, could grant a huge block of land to an individual, or a group of men acting as a company. The theory of the order of council was to settle within a stated time a minimum number of families on the tract. The grantee was supposed to be restrained from charging more than a specified price per acre. He issued deeds, just as though the block was owned by himself in fee-simple. In practice, there was created a proprietorship, usually non-resident, which enabled men influential with the colonial government to levy a burdensome tax on the settler without rendering in return a corresponding benefit. Much of the public domain was thus cornered by these influential men. The settler had to pay their price or go on to the very verge of settlement. Many a person did so, and the frontier was pushed forward too rapidly for comfort or safety. Furthermore, the government is said to have been very lenient in enforcing forfeiture where there was a failure to comply with the conditions attached to the grant. The order of council method was monopolistic in its very nature. The headright method was equitable, and it assumed, which was ordinarily the truth, that the homeseeker was capable of choosing land for himself. In the case of Borden, there was a penal bond in the sum of 1800 pounds (_$6,000). The grantee was to sell the lands at the rate of threepence (ten cents) per acre. Sometimes, indeed, he gave title for a smaller sum. But the rate exacted was sometimes much larger, as will appear from a study of Section III. A petition to the Assembly, dated 1786, would seem to voice the prevalent opinion in Rockbridge. The petitioners believe the survey to contain a good deal of surplus land. In reserving some of the most valuable tracts, the Bordens "accumulated a large fortune." A considerable portion was still unsold at the date of the petition, and like unappropriated land, was in great part free from tax. This was offered for sale at the highest price that could be secured.
They ask that the representatives of the proprietor be compelled to account for all arrears of taxes, and that the lands be disposed of at a reasonable price; and that the grant be resurveyed so that the title to the surplus lands may be vested in the commonwealth.
The patent to Borden was not issued until November 6, 1739. It is based on the representation that a family had been located for every 1,000 acres of the grant. The acreage is set at 92,100, and this would indicate that the number of actual settlem'ents was ninety-one, exclusive of those by the McDowell party. In consideration of building a cabin, the settler was given 100 acres, and had the privilege of buying additional land at the minimum price. Such parcel of 100 acres was called a cabin-right. These cabin-rights were of vital importance to Borden. Each one validated his own title to 1,000 acres of his grant. Mrs. Greenlee relates that the cabin-rights were at length counted and a return made to the governor. Benjamin Borden, Jr., affirmed that the number was 145. But Mrs. Greenlee says one person would go from cabin to cabin, and claim a cabin-right in each instance. It was immaterial where these claim-cabins were built. Mrs. Greenlee adds that she heard much of the doings of a young Milhollen woman, a servant to James Bell. She dressed as a man and saved five or six cabin-rights. She used a different Christian name at each cabin she appeared at. John Patterson, who made the count and kept tally with chalk-marks on his hat, was surprised to find so many Milhollens. Mrs. Greenlee does not commit herself as to whether she believed this sharp practice to have been instigated by the elder Borden. The junior Borden, in his answer in the suit of Bell v. Borden, denies that his father sought any advantage from fraudulent improvement. He says he believes it to be true that Bell "caused a servant wench of his to be dressed up in man's apparel or clothes, and show himself on one of the improvements he pretends to have made," and that at another time, Bell "caused the wife of William McCanliss, his servant man, to appear in his own proper person on a different part of the land, as the wife of another settler."
The surveying of the boundaries of the Tract was not done until after the counting of the cabin-rights. This circumstance will account for the extraordinarily irregular outline. More than sixty angles are described in the patent. The general survey was performed by James Wood, surveyor of Frederick county, assisted by John McDowell. McDowell seems to have surveyed some, at least, of the individual tracts, yet Mrs. Greenlee says one Beaty appears to have been the first man to survey land in the Borden Tract. One John Hart was also a surveyor. Separate parcels, however, were not always surveyed before pur- chase, but were described by general boundaries. James Buchanan says his father's land was paid for before survey, although certain boundaries were agreed upon. The younger Borden did not observe these bounds, although referees decided in his favor. Mrs. Greenlee says people sometimes squatted in the grant, and without first contracting with "old Borden." William Patton says that parcels passed from hand to hand prior to the making of any deed. This circumstance helps to explain why the names of some of the settlers do not appear in the deeds issued by the Bordens.
The death of Benjamin Borden.Sr. left the proprietary interests in the tract in much confusion. Many bargains with the newcomers had been reached, but in rather numerous instances the settler was living on land to which his claim was incomplete. Judge McDowell very justly remarks that the business of the estate was intricate and very troublesome. The elder Borden had either sold or given away many tracts that there was no account of among his papers. Disputes arose and some of the contestants made good their claims. The quit- rents coming due every year on the unsold portion of the Tract were a burden to the younger man. One deponent says a parcel was sometimes sold off merely to get the money for this purpose. It was the practice of the Bordens to sign no deeds until the purchase money had been paid in full. For some cause, the land purchased by Ezekiel Clements in 1746 reverted to the Crown seven years later.
In 1742 Benjamin Borden, Jr., visited the Tract, spending his time at the home of John McDowell. When he came back, the year following, his father and John McDowell were both dead. The junior Borden was a young man and was at first viewed with coldness and suspicion. There seemed to be nothing in his bearing to set him above the generality of the settlers themselves. It was said that he was illiterate, but this could hardly have been the case. He was not at first held in respect by Mrs. McDowell, whom he married about 1744. On his reappearance he entered upon the management of his inheritance. He lived at Thorn Hill, afterward the Bowyer estate, which lies on Woods Creek two miles southwest of Lexington. That his home was just outside the Tract is explainable on the supposition—which is almost a certainty— that his wife, whose maiden name was Magdalena Woods, was a sister to Richard Woods, who settled in this beautiful valley in 1738. Here in April, 1753, the younger Borden died of smallpox. The disease was epidemic that spring, and Borden was the first person at his own home to contract it. His three daughters, his brother Joseph, the children of John McDowell, and several negroes also fell ill, and one or two of his children died. Martha Borden, then a girl of about eight years, had a slow and tedious convalescence. About 1779 she married Robert Harvey. Mrs. Greenlee, who was probably immune, nursed the patients at the Borden home.
The appraisement of the junior Borden's personality makes the following exhibit, the values being given both in Federal currency and in the colonial money of Virginia. Roger (slave) 40p $133.33 Mill (slave) 30p 100.00 Other slaves—value not given 13 horses 63p 10s 211.67 26 sheep 6p 10s 21.67 One yoke of oxen : 6p 20.00 8 milch cows 13p 43.33 3 calves lp 4s 4.00 32 hogs 6p 20.00 Nails lp 11s 5.17 Case of pistols and holsters lp 3.33 Still and vessels 23p 76.67 Implements, traps, smith's tools 14p 3s 6d 47.25 Wagon gears 10p 33.33 3 linen sheets lp 16s 6.00 Large table 8s 1.33 One dozen chairs lp 8s 4.67 Bed and furniture 2p 10s 8.33 Silver watch 4p 13.33 3 wigs lp 10s 5.00 Books 3p 6s 6d 11.08 128 pounds steel, 77 of iron 4p 19s 8d 16.58 Total, 235 pounds, 16 shillings, 8 pence; equivalent to $786.11.
During the ten years he lived in the Tract, Benjamin, Jr., rose in the estimation of the settlers. In 1746 he became a captain of the militia, and in 1752 he qualified as a justice of the county court. He was somewhat frequently called upon to perform public business. Mrs. Greenlee says he appeared to be a good man and disposed to do justice to the settlers. His stepson, Samuel McDowell, says he was honest and upright, generally well spoken of, and gave satisfaction in his management of the estate. Such testimony is very strong, and yet there are statements that seem to conflict with those given by the stepson and his aunt. In 1748, the younger Borden was convicted by the Augusta court for giving false receipts for the payment of quit-rents. Three years later, Martha, the wife of James Dunlap, was fined for saying she would not believe him on oath. John Patterson, in making his will in 1749, claims seventy pounds as due him from Borden, and instructs James Patton to see that Borden does not wrong his wife and children. Borden's sister Deborah deposed in 1790 that her brother had treated Mrs. Worthington with much cruelty in word and manner. From the tenor of the declarations in a number of chancery suits, one is driven to conclude either that the plaintiffs were trying to "do" Borden, or that the latter was evasive and dishonest in his dealings with them. We cannot lightly believe that all the complainants could have been tricky and untruthful.
The suit of Downing v. Borden is a quite typical specimen of the litigation that arose after the death of the elder Borden. John Downing sets forth that John Patterson was a duly authorized agent to act for Benjamin Borden, Sr.; that through the said Patterson he purchased 300 acres on Galway Creek; that one-half the purchase money was to be paid as soon as Borden should execute a good deed, and one-half at the end of twelve months. The elder Borden having died before title had passed, Downing asked the son to make out a deed, complaining at the same time that his neighbor, George Moffett, had a mind to come over the creek running through the land. Benjamin, Jr., replied that Moffett should not come over, that Downing was in control and should go ahead with the improvement of his land. Downing says he has made considerable improvement, and has offered to pay the purchase money, but that Borden insists there was no bona fide purchase; that Patterson was without authority, unless in case of a lease-right; that the agreement between Patterson and Downing was oral only, and that the proprietor is under no obligation to. convey. In the suit of Young v. Borden, Robert Young says Robert Crockett bargained with the elder Borden and paid one pistole* to bind the contract; that he himself, to whom Crockett had assigned his right, has paid in $10.82, yet without being able to get a deed. In 1750 Young petitioned that Borden should not acknowledge title to any of the land without his consent. The petition was allowed. In Patterson v. Borden, James Patterson says that the senior Borden made a verbal agreement with John Patterson, whereby the latter was to act as agent; that when Borden visited the Tract, which he did frequently, he lodged with Patterson, who found his own provisions and also entertained landhunters; and that Patterson attended the surveyor, for which service he was to have three and one-half shillings (fifty-eight cents) a day. Borden refuses to pay any of these claims, falling back on the technicality of an English law of 1689 and saying that a writing was necessary. The case was dismissed in 1760 without award. In Mitchell v. Borden, 1747, John Mitchell says that in consequence of a rumor, after the death of the elder Borden, that the son would not give title to the places his father and the agents of the latter had agreed to convey, he himself and several others made preparations to move from the Tract. The younger Borden, finding his land would be depopulated, and in danger of lapsing for want of cultivation, publicly announced that he would perfect and confirm all such agreements. Mitchell remained, but Borden sometimes offers some excuse for not making title and sometimes absolutely refuses. Borden rejoins that Mitchell did no more than make an entry with Patterson, whom he looks upon as an intruder. In Bell v. Borden, which was abated in 1751, James Bell says that eighteen cabin-rights were taken by himself and his servant, John Milhollen, and sixteen other men: Thomas Armstrong, George Henderson, John and Quentin Moore, Alexander, George, James, Robert, and Adam Brecken- ridge, John Bell, William McCanless, John Walters, Robert and Seth Poage, John Grove, and Daniel M'Anler. These settlers were to build and improve by April 1, 1738, and to be at no expense except the drawing and recording of deeds, and a fee of eight shillings for laying off each tract. The deeds were not forthcoming, and the settlers concerned threatened suit. The proprietor then agreed to make conveyance, but died before the deeds were executed. The younger Borden says he does not know of any improvements by these men, and denies that Bell has any right to the 200 acres claimed in behalf of himself and Milhollen. The McDowells themselves had trouble with the proprietors. The senior Borden wanted John McDowell to select on Hays Creek the 1,000 acres he was to have for surveying. McDowell would not accept brushy upland which he deemed barren. He brought suit for a selection on Timber Ridge and won, to the chagrin of Borden, who wanted the land himself. Mrs. Greenlee's husband purchased on Turkey Hill, but the younger Borden resisted giving a deed, alleging that the whole parcel was choice land, and "for the sake of peace" a portion of it was given up. Greenlee's title was confirmed by the court. The lands remaining unsold after the death of the younger Borden were considered of inferior quality. Yet for a long while, sales continued to be made by the executors, of whom Archibald Alexander was chief. A report of sales that ends in the year 1780, shows that up to that date nearly 300 parcels had been disposed of.
But Benjamin Borden, Jr., was not always the defendant in this maze of litigation. He himself brought many suits, usually to enforce the payment of purchase money. As to Joseph Borden, Judge McDowell says he was a man "not of the best sort." The younger brother came to live with Benjamin, Jr., and went to school. The fall after the latter died, he went away by dark, not very well liked, and not made very welcome. After his recovery from the smallpox, he explored his brother's papers. His sister-in-law missed a bond of some 300 pounds, and when she accused him of the theft, he asked her in effect, what she was going to do about it. About twenty years later he again appeared in the Tract and told Samuel McDowell that he had bought out the claim of his sister, Mrs. Worthington. McDowell replied that Benjamin, Jr., had bought out the rights of his sisters—three of whom had spent about ten days in visiting him— because he could not get the lands laid off according to the terms of his father's will. Joseph Borden insisted that Mrs. Worthington had never acknowledged the deed. To Joseph Walker, the absentee explained his abrupt departure in 1753. He told Walker he could not get on with his sister-in-law. A friendly servant took his clothes to the woods and caught for him a mare that was the leader of a herd. As he rode away he was followed by a drove of horses. Walker told him such conduct was very dishonest, and asked him where he had been that he had not attended to his claims earlier. However, Joseph Borden did pay the sister $300 for her interest in her tract of 1,000 acres, and because of this land he brought suit against his niece, Martha Harvey, and her husband, Robert. The almost interminable depositions and other proceedings during the period 1790-1807 fill two large volumes in the office of the circuit clerk at Staunton. The controversy centered for a while about a tract of 448 acres owned by an Edmondson, in the "New Providence barrens." The kernel of the whole trouble was the provision in the will of Benjamin Borden, Sr., that five of his daughters should have 5,000 acres that was "all good land." Judge McDowell deposed that as a boy he was a chain-carrier for the surveying parties in the Tract, and thus became very familiar with the ground. He said it was not possible to embrace 1,000 acres of choice land in a single survey, and that it would require from fifteen to twenty surveys to cover the total of 5,000 acres. Joseph Borden died in 1803 at his home in Iredell county, North Carolina, but the suit dragged its weary length along, and was at length merged into the suit of Peck v. Borden. It appeared in the docket term after term with monotonous regularity. The Borden heirs became more numerous, year by year, and the case never seemed ready for settlement. About 1885 the circuit judge ordered the funds in the hands of the court, amounting with interest to some $5,000, to be paid to the army of heirs. The case was then stricken from the docket. It had involved the legality of all the Borden titles, but no landholder in the Tract was dispossessed. Passing the entire Borden matter in review, it appears in the light of a long-continued nuisance and an unjustifiable and injurious monopoly. The elder Borden had performed no public service to warrant so large a benefit from the public domain. The heirs, with the one exception of Benjamin, Jr., were nonresidents. There was never any sound reason why the individual purchases should not have been patents issuing from the state. A vast amount of litigation and other forms of annoyance would thus have been avoided.