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FROM WILLIAM DARLINGTON

In the Johnson Calendar, p. 169, is a letter of May 6th from William Darlington, at New York, on sending copper plate and prints, inclosing receipt for articles previously sent, and denouncing De Bruls's charge for plate and prints. Destroyed by fire.

<SIR>

FROM JOHN TABOR KEMPE
L. S.

New York May 9 1763

<Agreeable to my last I herewith enclose you four subpenas & sixteen Ticketts in the case the King agt. George Klock. I have not filled up the subpoena's or Ricketts' with the names of the Witnesses not knowing whether the Witnesses whose names I know, are all of them living. The Witnesses whose names I know are Colin Mc:Leland Capt. Jacob Klock, Hanjoost Klock, Mrs. Eve Pickard, Wm. Wormwood, John Diffendorp, Solomon Miers, Jacob Keller and Henry Miers. You will be pleased to let the names of such of these and other witnesses as can be subpoenaed, be inserted in one of the writs and on the top of a subpoena Ticket and that subpoena showed the witness in which name is wrote (so that he may see the seal) and the Ticket be delivered to him.

That you may be the better able to judge what proofs may be wanting on the part of the Crown I have enclosed a copy of a list of papers read in Council on Behalf of George Klock, by which you will see he has collected among other things a good deal of proofs tending to shew the Indians were sober when they Executed the deeds he is prosecuted for unfairly Obtaining.

It will lie on us to prove the Indians were drunk when they executed these deeds with equal weight of proof at least, more indeed we ought to have, or the weight of evidence will be equal if not against us, or to take off the weight of the Evidence by

Tickets. "Rickettts" in the copy.,

such proof as will either incapicitate ye witnesses or Destroy the Credibility of their Testimony. If therefore any of Klocks Witnesses are interested in the Event of the suit; are persons of bad Fame, little Credibility, have made any declarations of their swearing so as that Klock should not be found Guilty, or in short if they are in any wise biased so as to be improper Witnesses, or their Credibility to be suspected, we should have witnesses ready to prove these Facts, and to support with all the strength we are able the charge against Klock, Viz, that he made the Indians drunk and then got the deeds signed.

As it would be almost impossible without running into great lengths to insert in a letter all the proofs that may be wanting in the Tryal of a Cause so complex as this, as they may perhaps go into a proof of their Title in order to avoid the Charge of fraud, I have drawn up a sketch of a Brief wherein I have stated such proofs as may be wanting on our part, what I conceive may be Klocks defence, and how that ought to be opposed, and have marked the names of the witnesses I already have to the points I suppose they will prove leaving it to you to mark the other witnesses you shall discover, on the Brief, at the points they can prove, and if you should find any other thing material that any person can prove should be glad you would make another point of it and insert the names of such persons on the Brief ag'. the point so to be proved.

We ought also by all means to strengthen our proof with relation to the Fraud in the first purchase, and the surreptitious survey by Collins, for there I think our proof is weak, or unless we have more than I know of will be so on the Tryal, it being all hearsay, David Schuyler who was on the survey is dead and I fear his affid'. will not be proof. The Affidt of Eve Pickard and Willm. Wormwood contains no knowledge of their own with Regard to that Fact, but only what they heard David Schuyler, Collins, & Peter Wagoner say. However they will be corroborating witnesses as Collins & Schuyler are dead, but should be supported if possible by more witnesses to the same If that Peter Wagoner is liveing we should subpoena

purpose.

him by all means. He was on the survey, as was also a servant of Collins's, his name I know not, who if liveing and a white man should be also subpoenaed. We ought also have proof of the death of Schuyler, Collins (& Wagoner if dead) that we may be enabled with propriety to give in Evidence what they have declared about the matter. Schuyler is said to have been mad. We should have proof that he was not so, or had a lucid Interval when the declaration was made to Mrs. Eve Pickard & Willm Wormwood, and when his affid'. was taken by yourself.

With regard to the rest of the proof I can only say that I hope we shall not be deficient of good Creditable witnesses, White men: I should not chuse to be driven to the Necessity of making use of Indian Testimony if it can be avoided, because they are interested in the Lands, tho in this prosecution against Klock I dont see any thing that incapacitates them from being witnesses, Except those that have executed the deeds (a copy of which I presume Mr. Banyar sent you some time since) and it is not clear to me that even they may not be witnesses, tho I think it would be better to do without them, and indeed any Indians if possible. If we are obliged to make use of any of them, we must prove them to be Christians or they Cannot be Sworn.

I cannot think of anything else necessary at this time for me to mention but again to repeat my request of your being present at the Tryal.

Mr. William Smith Jn'. is concerned for Klock in this prosecution, so that I cannot get him to assist. I have spoke to Mr. Hicks who does not seem averse to it. Mr. Scott I am Informed is not concerned for Klock. I believe I can procure him. I can I shall write you word.>

If

I am also to try at <Albany Col. John Henry Lydius for Intruding on the Kings land near <Fort Edward and on the Otter Creek> If you can inform me of any persons that can prove any thing> relating to his Intrusion, setling, <surveying, selling or> Leasing any of those Lands or taking the Proffits cutting <<the Timber etc.> I should be Obliged to

you to advertise me of<it Imediately that I may get them supoenaed. It is a suit the Government have <much at Heart, and in which I would wish for <all the> proof possible.

I am Sir

Yours most Obed'. Humble Servant

J. T. KEMPE

P.S. You will be pleased to return me my Brief at Albany court as I shall want it at the Tryall.

at <<the

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I received your Letter of the 3d inst. concerning your being retained on the behalf of the Germans served with Ejectments by Mr. Livingston. The Death of Mr. Corry whom I had directed to lay the whole case before you and in whose hands many of the papers & proceedings relative thereto were deposited, prevents me from being as particular as I could wish, but I shall put them in the hands of another Attorney for your inspection, and in the meantime must refer you to the Attorney General, who will give you the necessary information you require only observing in brief that The Lands occupied by the Germans are part of the Tract now in dispute between the Claimants under Mr. Livingston and the Indians to whom these people have paid rent many years. The Patent was obtained by Virtue of an Indian Deed signed by four Inconsiderable Indians which can be made appear, & which takes in above

Double the Quantity mentioned in the Deed, This Tract was artfully augmented by the Late Surveyor Collins who in a Moonlight night about 30 Years ago went to Conajoharee without the privity of the Indians & Run a Course which comprehends the present Claim after which he retired with the utmost fear & precipitation, leave, his Instrum'. Staff behind him & sev1. other things as will appear by sev1. affidts.

[So soon as the Indians discovered the affair they publickly disavowed it, & that in such a manner, as occasioned Mr Livingston to drop proceeding therein, perhaps with design to wait the dissolution of the Inds. at that Castle, for, many years after some of the first German Settler went to Mr Livingston to know whether he [would give] them Deeds and Divide the same & whom he put off [Mrs.] Livingston saying to him he must not pretend to attempt [doing] anything therein so long as any of the Indians were alive. This likewise will be proved by Evidences.1]

On the Indians finding that the Lands [began to be settled] were setling fast they applied to the Settlers for rent, who accordingly have ever since paid it to them in Corn, or otherwise as they desire it, for wch they gave them regular rects [considering them as Landlords, & Original proprietaries.]

[In the year 1754, at Albany the Inds. in my presence complained to the Governor & Council of the injustice of the patent, which they had then lately heard was taken out, when M1 Alexander, (now Lord Sterling,) & Mr. Wm. Livingston seemed so well convinced of the Inds. rights to the Land that they readily & imediately offered to relinquish their Claim as Share therein, but many of the other partners being Young, or abroad prevented any thing effectual from taking place at that time.]

The Distance & situation of the Germans residing on the Lands in Dispute will I apprehend not permit them to go to York

1Words in italics and within brackets are erased in the manuscript. Words within the included brackets are supplied from a quotation in Stone's Life of Johnson, 2:177 (note).

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