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In the settlement of northern Pennsylvania he was the recognized leader, making annual pilgrimages to New England, and bringing back hosts of industrious settlers whose descendants to this day preserve the virtuous character of their Puritan ancestry; the people whom he brought thither, he never forsook. Their battles he fought in the courts, the assembly, in newspapers and pamphlets, and, if necessary, with his strong right arm, with a zeal, persistency and fidelity which deserved for the cause he thought to be right, a better fate.
The " confirming act" failed of execution. The reasons therefor are best given in Col. Pickering's own words: "The conditions expressed in the contract (he refers to the act) were complied with on the part of the Connecticut claimants, as far as it was practicable, and they were not bound to perform impossibilities; that eight months from the time of passing the act were allowed them to get information of it, and to present their claims; that the commissioners appointed to receive and examine those claims were required to meet, for that purpose, in Luzerne county, in two months next after the passing of the act; that owing to successive resignations of Gen. Muhlenberg, Gen. Heister and Joseph Montgomery, Esq., those examinations did not commence till some time in August; that the seizure of John Franklin, on October 2, for his treasonable practices and designs, occasioned a sudden insurrection of his adherents, of whom a very small number had any pretensions to land under the confirming law; that a few days before this arrest, Col. Balliot, one of the commissioners, had gone home to his family; that the subscriber, another of the commissioners, having personally, in the sight of the people, and with arms in his hands, assisted in securing Franklin and preventing any attempt to rescue him, and thus rendered himself obnoxious to the resentment and sadden vengeance of his partisans, was advised to retire to some secure place until their heat should subside;
* * * that Col. William Montgomery, the other commissioner, seeing the storm gathering, immediately after Franklin was taken, had left the country to go home; * * * that, the commissioners having thus separated, never again assembled, the time limited for the presentation of the Connecticut claims expiring so soon after as November 28 following; * * * that, since this event (referring to his own abduction), the county has remained in perfect quiet, the laws having as free and complete operation as in any other county." Then, arguing against the repeal of the act (this paper is written February 27, 1790): "That the people rely on the magnanimity and good faith of the State for the execution of the grants made to them by the confirming law; that in this expectation their industry is manifestly increased, they have begun to build more comfortable houses, to erect barns, and to extend the improvements on their lands; that a repeal of the law would check this rising industry, stop further improvements, revive ancient jealousies and animosities, and, perhaps, destroy the peace of the country. But, to say nothing of the attempt, as a breach of public faith, it may be worth while to inquire, 'whether such repeal be in its nature possible? '" He goes on to treat the act as a "contract," or "treaty of peace."
The landholders, however, were not without power in the assembly. Using the conduct of the people as a cause or pretext, the act was suspended on March 29, 1788.
Act Repealed.—The seal to this final act was prepared by the suspension act, through no fault, be it remembered, on the part of the Connecticut claimants. The cross purposes that had arisen among the people themselves and the clamor of the landholders, brought the pressure that resulted in its repeal, April 1, 1790. This act of crowning bad faith Wbb strongly resisted by many leading men of Pennsylvania, and among others some of the most noted lawyers of Philadelphia. Col. Jenkins' anxious, prophetic question had, indeed at last been answered. Still the people went on quietly and hopefully. Although the law was repealed, by it Pennsylvania had distinctly recognized their rights in the case, and they settled in the conviction that somehow, at some time, their titles would be secured, and justice be done. The Susquehanna company proceeded actively with their operations. What is now Bradford county was at once laid out in townships, not continuous with any municipal subdivision of the State. By the year 1795, it is said that what is now the entire territory of the country was covered with the "claims" of these grantees, and at the same time by "warrants" from Pennsylvania on top of them.
Intrusion Law.— April 17, 1795, a statute was passed enacting penalties and punishment against any person taking possession or intruding upon lands within the limits of Northampton, Northumberland or Luzerne counties, except by right obtained from the commonwealth.
Section 6 excepts any claims of persons claiming under "the confirming act" March 28, 1787, etc. The exception took "the seventeen townships" out of the effect of the act.
Under this act, John Franklin and John Jenkins et al. were indicted at August sessions, 1801, in Luzerne county, and a special verdict found against them. It was removed by certiorari into the supreme court. There the act was held constitutional, but the defendants were discharged on other grounds. Commonwealth vs. Franklin et al., 4 Dallas, 255, 316. (The arguments of counsel as reported here are worthy of attention.)
It was held under this act "that the contract in this case (for the sale of lands) is illegal, being founded on a breach of the law, and, of consequence, a void contract," Mitchell rs. Smith, 1 Binney, 110.
This act is known as the "intrusion law," and has been subjected to much harsh criticism.
At length on April 21, 1795, the case of Vanhorn's lessee vs. Dorrance, 2 Dallas, 304, came on to be tried in the circuit court of Pennsylvania district. It was ejectment for a little tract of about twelve acres. Selected as a test, the plaintiff naturally brought it on the best title which could be produced. Jared Ingersoll, Jona D. Sergeant and William Tilghman appeared for the plaintiffs, William Rawle, William Lewis and Joseph Thomas appeared for the defendants.
There was the fullest latitude in the testimony. All the charters and deeds hereinbefore referred to were put in evidence. The surveys and possessions of the tract in controversy were given. Col. Denison, for the defendant, detailed his entry upon the lot in 1770, and the incidents of the first Pennamite war. William Gal hip gave in evidence an account of "the massacre." Col. Pickering narrated the events of the second Pennamite war, and of the reception of the confirming act. Robert Morris stated how, while a member of the assembly in 1786-7, he, at first, was in favor of calling out the militia, to expel the Yankees, but became an advocate for the act. The resolves of Connecticut—the records of the Susquehanna company —Smollett's history—acts of congress—the conduct of Patterson's and Armstrong's troops—Col. John Henry Lydins' deposition as to the execution of the famous Indian deed of July 11, 1754 (Mr. Tilghman hands this deed to court and jury, to show its suspicious face), were all put in evidence.
It was such a case as had never been tried in Europe or America.
It sufficiently appeared that the defendant had the earliest and a continued possession. The plaintiff claimed under a "warrant of survey," executed March 15, 1771.
Judge Patterson gave the jury binding instructions, and made short work of the Connecticut title.
1. "The title under Connecticut is of no avail, because the land in controversy is ex-territorial; it does not lie within the charter bounds of Connecticut, but within the charter bounds of Pennsylvania. The charter of Connecticut does not cover or spread over the lands in question. Of course, no title can be derived from Connecticut."
The declaration that the land "does not lie within the charter bounds of Connecticut" is here, forthe first time in the history of the controversy, judicially made. This was not decided by the court at Trenton—their decree was only that, at the date of it, the "jurisdiction " and "pre-emption" was in Pennsylvania as against Connecticut. This conclusion may have grown out of acts of "dereliction " or "estopel," since the date of charter, as well as out of a question of original "charter bounds."
Nor did it follow that "of course, no title could be derived from Connecticut." The judge does not advert to the facts from which the court at Trenton made the distinction between "jurisdiction" and "private right of soil "—that the defendant's title had been created under another soverign actually exercising jurisdiction—that the jurisdiction had been recognized by the United States in various ways, notably by accepting the troops from Wyoming, the Twentyfourth Connecticut regiment, as part of the continental line—by accepting, absolutely, the cession of western territory from Connecticut under the same title the defendant held—that (by sufferance or otherwise) Pennsylvania had permitted the de facto government of Connecticut to be maintained at the situs of the land in dispute—and that in the origin and progress of the whole business, there were such circumstances as might give the defendant title, independent of the will of Pennsylvania, previous to December 30, 1782.
2. The "Indian deed" was summarily dismissed as one "underwhich the Connecticut settlers derive no title."
3. As to the title under the confirming act of 1787.
An act calling upon an individual to surrender or sacrifice his whole property for the good of community, without receiving a recompense in value, would be "a monster in legislation, and shock all mankind. The legislature, therefore, had no authority to make an act divesting one citizen of his freehold, and vesting it in another, without a just compensation." * *
"The next step in the line of progression is whether the legislature had authority to make an act divesting one citizen of his freehold and vesting it in another, even with compensation.
"The existence of such power is necessary; * * and if this be the case, it can not be lodged anywhere with so much safety as with the legislature.
"Such case of necessity, and judging, too, of the compensation,can never occur in any nation; * * even upon full indemnification, unless that indemnification be ascertained in the manner which I shall mention. * * Here the legislation must stop; * * they can not constitutionally determine upon the amount of compensation, or the value of the land."
That can only be done—" by the parties "—" by commissioners mutually chosen by the parties "—or, "by the intervention of a jury."
By the act, the Pennsylvania claimants are to present their claims to the "board of property," who are
1. To judge of the validity of their claims.
2. To ascertain, by the aid of commissioners, appointed by the legislature, the quality and value of the land.
3. To judge of the quantity of vacant land to be granted as an equivalent.
"This is not the constitutional line of procedure. * * By the act, the equivalent is to be land. No just compensation can be made except in money.
'"It is contended that the legislature must judge of the necessity of interposing their despotic authority. Be it so. Did there exist also a State necessity that the legislature or person solely appointed by them, must measure the compensation, or value of the lands seized and taken, and the validity of the title thereto? Did a third State necessity exist, that the proprietor must take land by way of equivalent for his land? And did a fourth State necessity exist, that the value of this land-equivalent must be adjusted by the board of property, without the consent of the party, or the interference of a jury? Alas! how necessity begets necessity. * * * 'Omnipotence in legislation is despotism.' In short, gentlemen, the confirming act is void; it never had constitutional existence; it is a dead letter, and of no more virtue or avail than if it had never been made."
In its application to the exact facts of the case of Vanhorne M. Dorrance, this exposition is undoubtedly correct. The act applied to this state of facts was unconstitutional for the reason stated. But at the time the confirming law was passed, the State was proprietor of a large portion of the lands which the settlers held. The State had the power and the right to give away her vacant lands (vacant as to her titles), and it is the better opinion that this law was binding on the legislature in favor of an "actual settlers, before the decree of Trenton," for whose land, at the date of the act, there has been issued no Pennsylvania title. In that respect the confirming law was " of no more avail than if it had never been made." Mr. Rawle, in his dissentient, goes further and says: "But in no instance can the power of repealing laws affect their obligations while in force, and, consequently, if the effect of the law while in force is permanent and perpetual upon the subjects to which it relates, a repeal, although it may destroy the law, can not diminish the effect it has already produced."
Judge Patterson proceeds as to the mode of executing the law: "The estate of the Pennsylvania claimants was not divested on the passing of the act; it was not divested on presenting the claim on the part of the Connecticut settlers.
"The intention of the legislature was to vest in Connecticut claimants, of a particular description, a perfect estate to certain lands in the county of Luzerne; but then it was upon condition," which, of course, must be complied with.
If the legislature had authority to make the confirming act, they had also the authority to suspend it. * * Of course, there is an end of the business. The parties are placed on their original ground—they are restored to their pristine situation.
This would not be accurate as to the class of Connecticut settlers just referred to. As to them, the grant by the act was a good one; for a sufficient consideration recited in the act, they had a right of title, which a subsequent legislature could not defeat. "The intention" the judge refers to had been executed, irrepealably as to them.
Judge Patterson did not regard the repeating act of April 1, 1790, bad, either as ''an ex-post facto law," or as "a law impairing the obligation of a contract." Yet he says himself: "If the property to the lands in question had been vested in the State of Pennsylvania, then the legislature would have had the liberty and right of disposing of or granting them to whom they pleased, at any time and in any manner."
There were large quantities of such lands held by Connecticut settlers. Surely, as to such, the repealing law was "ex-post facto" and " impaired the obligation of a contract," and as such, was contrary to the constitution of the United States.
Judge Patterson closes pungently:
1. The confirming act is unconstitutional and void. It was invalid from the beginning, had no life or operation, and is in precisely the same state as if it had not been made. If so, the plaintiff's title remains in full force.
2. If the confirming act is unconstitutional, the conditions of it have not been performed, and, therefore, the estate continues in the plaintiff.
3. The confirming act has been suspended; and 4. Repealed.
All of which was perfectly true in its application to the facts of the case, and the verdict was properly for the plaintiffs.
The case was appealed to the supreme court of the United States, and stricken from the dockets without trial.
It was said Vanhorne fled the country, and process could not be served on him, and that Dorrance's attorney, Thomas, disappeared mysteriously with the papers in the case. Hence, but little or no results came of the case. It opened the courts whose records were soon burdened with cases where the Pennsylvania claimants hoped to gain possession of the disputed lands and rid the State of the burden of compensation; and while many actions were brought in eight years, there were the barren results of this one being partly tried.
Compromise Act of 1799:—This was the beginning of the end. The law was passed April 4, 1799, "offering compensation to the Pennsylvania claimants of certain lands within the seventeen townships in the county of Luzerne." The law fixes the status of the conflicting claimants, and appoints Isaac Wheelon, of Chester county; Thomas Boude, of Lancaster county, and General William Irvine of Cumberland county, commissioners to examine all questions concerning claims to land in the seventeen townships, and divide the claims into four classes to be known as first, second, third and fourth class, and for paying damages according to the respective classes. The act is long and directory, and was intended as one of meditat ion on the part of the State between the conflicting claimants.
The Pennsylvania claimants, refusing or neglecting to execute releasesj were to be paid in land or money. The Connecticut claimants, with the memory of the repeal of the " confirming act" fresh in their minds, were little disposed to act or take the benefit of this law.
April 6, 1802, an act was passed requiring the commissioners to survey, value and certify the whole of each tract claimed by Connecticut people, and turned the Pennsylvania claimant, who had not released, over to the mercy of a jury to award his compensation.
In 1805 the Westmoreland county records were authorized to be deposited with the recorder of deeds in Luzerne county, and certified copies made evidence.
April 9, 1807, Pennsylvania claimants, under title previous to the "confirming act," were permitted to release, and the commissioner in examining Connecticut claims "shall not require the same lands to have been occupied prior to the decree of Trenton, but the same lands to the several applicants certify, if under the rules and regulations of the Susquehanna company, at any time they should otherwise thereto be entitled." This'commission was abolished March 28, 1808.
These laws were executed with intelligence and fidelity. By October, 20, 1802, about 1,000 Connecticut people had exhibited their titles. All the lines in the seventeen townships had been again surveyed, and certificates issued to the holders. These certificates were conclusive between Connecticut claimants, but did not conclude a Pennsylvania claimant.
Of the compromise act of 1799, in the case of Barney vs. Sutton, 2 Watts, 36 Scott, president judge of the Luzerne common pleas court sums up the whole thus: "At last the legislature adopted the expedient of acting as mediators between the Connecticut and the Pennsylvania claimants, for.the purpose of putting a final end to the controversy. The act was strictly the act of mediation. It proposed terms of settlement and compromise to the parties, and the controversy was finally happily settled. The judge then gives the following as pertinent history of the longdrawn-out contention:
At the commencement of the Revolution settlements had been effected in most, if not all, of the seventeen townships, and in many of them extensive improvements had been made. The settlers were a hardy, intelligent, brave and patriotic people. During the Revolutionary struggle neither the sufferings and privations which they endured nor the menace of the executive authority of Pennsylvania could drive them from their settlements, nor could the offers of British gold tempt them to abandon their country or the common cause of liberty and independence in which they were engaged. They had become so numerous that they furnished nearly 1,000 men for the regular service. They did still more. They sustained, single-handed, for more than three years, a frontier war, during the most gloomy period of the Revolution, and successfully repelled an enemy "whose known mode of warfare spared neither age nor sex nor condition." On July 3, 1778, they were attacked by a numerous body of Indians, British and tories, and in one disastrous battle nearly the whole settlement were reduced to widowhood and orphanage. The feeble remnant that escaped soon mustered and returned to the settlement, and until the close of the war presented a barrier to the incursions of the savage foe.
This is a mere skeleton of the early history of this settlement. It would require a volume to fill it up. But enough has been noticed to satisfy any one not blinded by interest or prejudice of the equitable claims of these people. They came into possession under color of title, such a title, too, as they honestly believed to be good, and in which they were induced to confide by a government claiming jurisdiction over the territory. Was this circumstance nothing as a ground of equity? Were the improvements and possession of the country nothing? Were the sacrifices and sufferings and privations of the people in defence of the country and in the common cause nothing? Are such a people to be considered outlaws? To this last question I adopt the answer of the late chief justice in the case of Satterlee vs.