USA > Pennsylvania > Luzerne County > Wilkes-Barre > A history of Wilkes-Barre, Luzerne County, Pennsylvania : from its first beginnings to the present time, including chapters of newly-discovered early Wyoming Valley history, together with many biographical sketches and much genealogical material. Volume III > Part 14
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In October, 1789, Washington appointed Mr. Wilson an Associate Justice of the United States Supreme Court. and he remained in that office till his death. In 1790 he was appointed Professor of Law in Philadelphia College, which conferred on him in that year the degree of LL. D. He was a member of the Pennsylvania Constitutional Convention which framed a new Constitution for the State in 1790, and he was joint-author with the Hon. Thomas Mckean of "Commentaries on the Constitution of the United States", published in 1792. William Rawle, a great leader of the Philadelphia Bar a hundred years ago, in an address before the Associated Members of the Bar in 1823, said, referring to James Wilson: "It must, however, be confessed, that Mr. Wilson on the Bench was not equal to Mr. Wilson at the Bar; nor did his law lectures entirely meet the expectation that had been formed."
Prinr to the year 1795, Mr. Wilson, like sn many Pennsylvanians of his time, speculated widely and deeply in the lands of the State-as noted on page 653, Vol. II. He became in consequence, indebted in large amounts to a number of men; among others, to Pierce Butler, a native of Ireland, who was a Representative from South Carolina in the Federal Constitutional Convention, and was a United States Senator from South Carolina from 1789 to 1796.
At that time the infamous rule of the Common law, giving to a creditor the right to cause the imprisonment of his debtor, was enforced by the courts of this country. Of this inhuman remedy Pierce Butler availed himself, and Mr. Wilson was thrown into prison at Edenton, North Carolina-not because he had committed any crime, but because, through unfortunate speculations, he could not pay his debts. To the grief and humiliation caused by this imprisonment was due the despair which led him to commit suicide on August 28, 1798 (not 1797, as erroneously printed on page 653), while still in confinement at Edenton. In 1906 the remains of Mr. Wilson were dis-interred at Edenton and conveyed to Philadelphia, where, on November 22 (having first lain in state in Independence Hall, where, 130 years before, Mr. Wilson had voted for and signed the Declaration of Independence), they were reinterred with signal honors and impressive ceremonies in the yard of old Christ Church, on North Second Street.
The Rev. Bird Wilson, D. D., for some years a minister of the gospel in New York City, was a son of James Wilson.
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geant * appeared as "counsellors and agents," for Pennsylvania; while Col. Eliphalet Dyer, f Dr. William Samuel Johnsont and Jesse Root,§ Esq., were present as counsel and agents for Connecticut.
At Trenton, under the date of November 18, 1782, Attorney General Bradford wrote to the Hon. John Dickinson, President of the Supreme Executive Council of Pennsylvania, in part as follows :||
"They [the Commissioners] have adjourned until to-morrow at ten o'clock, at which time we apprehend that the Agents for Connecticut will move that the trial be postponed until the settlers (who will be affected by the determination) can have notice. This strange idea seems to be suggested merely for the purpose of delay, and we conceive will not be adopted by the Court. Under this circumstance it is impossible for us at present to say when the witnesses will be wanted. We should, however, be extremely glad if the original Charter and the Indian deeds could be forwarded with all despatch. Some circumstances may occur that will render it necessary
for us to be armed at all points, and to rely as little as possible on the hopes of indulgence."
*
*
Upon the opening of the Court on November 19th the counsel for Connec- ticut presented for consideration a document in the following words:T
"The Agents of the State of. Connecticut, saving to themselves all advantages of other and further defense in said cause, beg leave to suggest, inform, and give the Court to understand, that there are many persons who are tenants in possession of the lands in controversy, holding, improving and claiming large quantities of said lands under titles from the States of Pennsylvania and Connecticut respectively (particularly the two large companies of Delaware and Susquehanna, consisting of more than 2,000 persons, many of whose people are in possession, improving and holding large tracts of said land in controversy, under title from the State of Connecticut) ; whose titles under said States, respectively, will be materially affected by the decision in this case, yet have not been cited or in any way legally notified to be present at said trial to defend their titles respectively-which, by the rules of proceeding in a court of justice, ought to be done before any further proceedings are had in said case.
"And thereupon the said Agents move this honorable Court to cause said companies of Delaware and Susquehanna, and other tenants in possession, holding under title from either of said States, to be duly cited, in some proper and reasonable manner, to appear and defend at said trial, if they see cause, before any further proceedings are had in said cause. And of this they pray the opinion of this honorable Court."
After listening to arguments by counsel on the questions raised by the foregoing motion, the Court adjourned until the next day, at which time the motion was overruled, on the ground that the same could "not be admitted according to the construction of the IXth Article of the Confederation", or compatibly with the tenor and design of the commission under which the Court was acting. This commission, it should be explained, was founded on the second
*JONATHAN DICKINSON SERGEANT was born at Newark, New Jersey, in 1746. He was a grandson of Jonathan Dickinson, the first President of the College of New Jersey (Princeton). He was graduated at Princeton in 1762. then studied law, and began its practice in New Jersey. He took his seat in the Continental Congress a few days after the Declaration of Independence was signed. He sat as a Delegate in Congress in 1776 and 1777, and in July, 1777. became Attorney General of Pennsylvania. In 1778, Congress having ordered a Court Martial for the trial of Gen. Arthur St. Clair, and other officers, in relation to the evacuation of Ticonderoga, Mr. Sergeant was appointed by that body, with William Patterson of New Jersey, to assist the Judge Advocate in the conduct of the trial. In 1780 Mr. Sergeant resigned the office of Attorney General, and settled in practice in Philadelphia.
When the yellow fever visited Philadelphia in 1793 Mr. Sergeant was appointed a member of the City Health Committee, and in consequence refrained from leaving the city. He distributed large sums of money among the poor, nursed the sick, and was active in promoting and carrying out general sanitary measures. Unfortunately he fell a victim to the epidemic, and died at Philadelphia October 8, 1793.
Two of the sons of Jonathan Dickinson Sergeant were: John, born at Philadelphia, December 5, 1779, and attained prominence as a lawyer. Thomas, born at Philadelphia. January 14, 1782, and became Attorney General of Pennsyl- vania.
+For a sketch and portrait of Colonel Dyer see page 393, Vol. I.
#For a sketch of Dr. Johnson see page 478, Vol. I.
§ JESSE Roof was born at Coventry, Tolland County, Connecticut, December 28, 1736, and was graduated at Princeton College in 1756. For several years following his graduation he served as a minister of the gospel, but hav- ing studied law meanwhile he was admitted to the Bar of Connecticut in 1763, and settled at Hartford in the practice of his profession. In the year 1766 the honorary degree of Master of Arts was conferred upon him by both Yale and Princeton Colleges.
Early in 1777 he raised, and took command of, a company of Connecticut men, with which he joined Washing- ton's army at Peekskill. Shortly afterwards he was appointed and commissioned Lieut. Colonel. He was a member of the Continental Congress from Connecticut in 1779-'80, 1780-'81, 1781-'82, 1782-'83, and 1788-'89. In 1789 he was appointed a Judge of the Superior Court of Connecticut, and held the office till 1793. He became Chief Judge in 1798, and continued as such till 1807. Subsequently be served as a member of the Connecticut Assembly. In 1800 Yale College conferred upon him the honorary degree of LL. D. He was a member of the American and Connecticut Academies of Arts and Sciences, and edited and published "Reports of Cases Adjudged in the Courts of Errors in Conn- ecticut" (2 Vols.), Hartford, 1789-1802. He died at Coventry March 29, 1822.
(See "Pennsylvania Archives," Old Series, XI: 331.
¡See Miner's "History 'of Wyoming", page 444.
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paragraph, or section, of the IXth Article. The determination by the Court of the claims of private property, or right in the soil, would have been coram non judice-jurisdiction over such claims being derived from the third paragraph of Article IX .* The two jurisdictions could not be blended.
Having failed in this matter the next move of the Connecticut counsel was to suggest that they might find it necessary to ask for an adjournment or postponement of the hearing, in order-as they set forth in writing-to pro- secute their efforts to obtain possession of (1) "a certain original deed from the Indians for a large parcel of the lands in dispute, obtained from their Chiefs and Sachems at their Council Fire in Onondaga, in the year 1763, which is now in England, having been left there before the commencement of the present un- happy war, and which we have never since been able to obtain; and (2) other necessary evidence and proofs which, on examination, we find we are not at present possessed of, and which may be wanted in said trial."
To this "suggestion" the counsel for Pennsylvania declared that they would oppose any postponement or adjournment after the introduction of evidence had been begun. The Court took the papers submitted by counsel, and the matter rested there-not being brought up again during the progress of the case.
On the second day of the hearing (November 20, 1782) Attorney General Bradford wrote from Trenton to President Dickinson of the Supreme Executive Council of Pennsylvania, at Philadelphia, as follows:+
"I beg leave to inform your Excellency and the Council that the Court of Commissioners have at length proceeded to business. We, however, are still tipon the threshold of the Cause, and whether we shall proceed any farther is still undetermined. The Agents for Connecticut seem determined to use every endeavor to prevent a decision of the Cause. First, they demanded that the original petition which was presented to Congress should be produced; an argument ensued, and they were overruled. Next, they objected to the validity of our agency, and contended that we had no authority to appear before that Court. After argument the Court held our powers to be sufficient. After this, they contended that the Court could not proceed unless the terre- tenants, or others claiming lands in the contested territory, were summoned and made parties in the suit. This they warmly contended for, but were as unsuccessful as before.
"At the next meeting of the Court we moved that the Court would proceed to hear the Cause. The Agents prayed for time to have a conference with us, which they alleged might prevent any further motions to delay the Cause. It was granted to them, and their proposal to us has been, that we will admit ex-parte depositions, and concede that there is in England a certain Indian deed, of part of the lands in question, fairly executed, made to The Susquehanna Company, and of which they have no copy. These proposals met with the answer that might have been expected, and, in consequence of our refusal, they propose to move that the Cause shall not be heard till they can procure the witnesses and the deed. We trust that they will not be gratified in this unreasonable request. If they can prove such a deed to have existed, and that it is in possession of the enemy, no doubt its contents may be given in evidence.
"The spirit, however, which has been discovered on these occasions, induces us to wish for evidence the most legal and unexceptionable. If the Charter and Indian deeds cannot be procured, we could wish that the records of them were brought forward." * * *
*The second and third paragraphs of Article IX of the "Articles of Confederation and Perpetual Union" between the thirteen American States, adopted at Philadelphia November 15, 1777, read in part as follows:
2 -- "The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction, or any other cause whatever; which authority shall always be exercised in the manner following. Whenever the legislative or executive authority or lawful agent of any State in controversy with another shall present a petition to Congress, stating the matter in question and praying for a hearing, notice thereof shall be given by order of Congress to the legis- lative or executive authority of the other State in controversy and a day assigned for the appearance of the parties by their lawful agents, who shall then he directed to appoint, hy joint consent, commissioners, or judges, to constitute a court for hearing and determining the matter in question; but if they cannot agree, Congress shall name three persons out of each of the United States, and from the list of such persons each party shall alternately strike out one, the peti- tioners beginning, until the number shall be reduced to thirteen; and from that number not less than seven, nor more than nine, names as Congress shall direct, shall, in the presence of Congress, be drawn ont hy lot, and the persons whose names shall be drawn, or any five of them, shall be commissioners, or judges, to hear and finally determine the controversy; * * * * and the judgment and sentence of the court to be appointed in the manner before prescribed shall be final and conclusive; * * the judgment or sentence, and other proceedings, being in either case transmitted to Cnagress and lodged among the Acts of Congress for the security of the parties concerned * * *
13-"All controversies concerning the private right of soil claimed under different grants of two or more States. whose jurisdictions (as they may respect such lands, and the States which passed such grants) are adjusted-the said grants, or either of them, heing at the same time claimed to have originated antecedent to such settlement nf jurisdiction-shall, on the petition of either party to the Congress of the United States, be finally determined as near as may be in the same manner as is before prescribed for deciding disputes respecting territorial jurisdiction between different States."
tSee Hoyt's "Brief of a Title in the Seventeen Townships in the County af Luzerne", page 43
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At Philadelphia, under the date of November 23, 1782, Joseph Reed, of the counsel for Pennsylvania at Trenton, wrote to Vice President Moore of the Supreme Executive Council of Pennsylvania, as follows :* *
* * "I arrived this evening from Trenton, and am sorry to inform you that the proceedings of the Agents on the part of Connecticut manifest the utmost intentions to postpone the hearing of the cause and break up the Court without a decision on the merits. After object- ing to our powers, to the non-production of the original petition, and want of notice to the settlers -in all which, after long arguments, they were overruled-they prayed that the Cause might proceed with a reservation of moving an adjournment of the Cause at any stage of it; at the same time adding that they had left sundry papers in England, essential to the merits, of which they gave a verbal detail. *
* * Among the papers said to be in England, they lay great stress * * on the Indian deeds, which they allege to have been left in that Kingdom." *
At Trenton, under the date of December 3, 1782, Joseph Reed wrote to the Hon. George Bryan, a former Vice President of the Supreme Executive Council of Pennsylvania, in part as follows:+
"The Agents of Connecticut have brought their testimony down to their Indian deeds; but here is a lamentable failure. Their best deed was carried to England, and a Welsh attorney carried it down with him to that country, and there it stands pledged for a Counsellor Gardiner's debts. The other was brought here, and has been lost since their arrival. Dyer having told us it was much blurred and blotted, but that they had a fair copy. We, you may be sure, have our suspicions. Sergeant just now asked him [Dyer] if he had looked in his breeches. I suppose you have heard the anecdote of the stockings.
"Yesterday they attempted to read the proceedings of The Delaware Company on the Susquehanna [sic], that is, the work of the adventurers on the land in dispute. This point is now before the Court for consideration. Our cause at present stands fair enough, but I foresee it will be very tedious. Colonel Dyer will submit to no order; he speaks twenty times a day, and scarcely ever finishes one sentence completely. Dr. Johnson is the ablest man in the agency; he is a good speaker, and is a man of candor. Our Court, pretty well as courts go. When you write, be careful as to opportunities. I mean, don't trust suspicious hands.
"P. S .- Since writing the above, the Court determined not to admit the copy, and soon after the miserable original [Indian deed] was found. What can we think of these folks!"
At Trenton, under the date of December 13, 1782, Joseph Reed wrote again to George Bryan, in part as follows :#
"We have now got to summing up the cause, and I think, without being too sanguine, we may justly expect a full decree in our favor. It was agreed to speak alternately. Mr. Root began, making use chiefly of [the Rev. Benjamin] Trumbull's Pamphlet? as a brief. It was very dull, and much said of the policy of taking off this grant for a new Colony, &c., &c. We expected that each would take up two days, as the evidence is multifarious and prolix, but he finished in two hours, or a little more. Mr. Sergeant followed him, and though he evidently abbreviated, he took up Wednesday and Thursday.
"Mr. Wharton came up here to give evidence of the disclaimer of the Indians at Fort Stanwix, but the fear of offending the Delegates from Connecticut was remarkably visible the whole time he was here.
"To-day Colonel Dyer goes on, and we expect much amusement, though little information. Perhaps we may be surprised; as, indeed, we shall be, if he argues with ability or judgment. Thus we stand at present, and have now a reasonable prospect of dismission next week, which is the least time that has ever been spent on such a cause. The dispute between New York and New Jersey took up three months. We all grow impatient, but I do not mean to leave this [place] till we have finished."
It will not be possible, in these pages, to give more than a brief account of the proceedings before the Trenton Court of Commissioners. For many of the details of the hearing-the "briefs", or "notes", of some of the counsel, certain of the official minutes recorded by the Clerk of the Court, and for interesting data of a technical and legal character-the reader is referred to "Pennsylvania Archives", Old Series, IX : 679-724, and "Brief of a Title in the Seventeen Town- ships in the County of Luzerne", by the Hon. Henry M. Hoyt, LL. D., sometime Governor of Pennsylvania.
The claim of Pennsylvania, set forth in the "Statement and Representation" filed with the Court by the counsel for the State, is printed in Miner's "History
*See Hoyt's "Brief", previously mentioned. page 44
+See William B Reed's "Life of Joseph Reed", II: 388, 389.
#See William B. Reed's "Life of Joseph Reed", 11 389.
$Mentioned on page 803, Vol 11
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of Wyoming", page 70-72. In support of their claim the Pennsylvanians attacked the Connecticut charters, patents and deeds, so far as their alleged application or reference to lands within the claimed bounds of Pennsylvania was concerned. In brief, the Pennsylvanians held :
I. That in the time of Charles II, the geography of this country was little understood, and the breadth of the continent unknown; and that the King was mistaken and deceived when he used such general words in his charter to Con- necticut as, if literally construed, would convey an extent of 3,000 miles .*
II. That it was not the understanding, as appears from the state of the Colony when the charter was granted, that the boundaries of Connecticut ex- tended westward far beyond the Connecticut River.
III. That Connecticut, on several occasions, had waived or, by admis- sions, estopped herself from asserting, her title to lands west of New York.
IV. That the long silence and non-claim of Connecticut, as to the west- ern lands, had acted as a waiver of her charter right, or, rather, as an evidence of her want of such right.
V. That the charter ought not to be so construed as to include the land in question, because of the immensity of the country which would be embraced within the charter limits.
VI. That the charter gave no title west of New York, because of the in- terjacency of another Province.
VII That the title of The Susquehanna Company was defective on these grotinds: (i) The Company never had a formal grant from the Colony of Con- necticut; (ii) Acts of Parliament are never used to grant lands- the alienation of lands being executive, not legislative; (iii) the Colony of Connecticut received nothing from the Company as a consideration for those lands; (iv) Connecti- cut never passed any law granting lands to the Company in the Province of Pennsylvania; (v) the Company made its purchase from the Indians, contrary to the laws of Connecticut; (vi) Connecticut never granted the land by any formal grant; (vii) the Company never had a sealed patent.
VIII. That the King, in 1763, forbade the settling of this territory.t
IX. That the Indian deed of July 11, 1754, to The Susquehanna Company was null and void-in fact, absolutely worthless-on these grounds: (i) the description of the land, and other material parts, being written on erasures, and in ink different from that used in the major part of the deed; (ii) the deed having been executed at different times and before different subscribing wit- nesses; (iii) it not having been executed in the open, public, national manner in which the Indians were accustomed to sell and transfer their lands; (iv) it being clandestine, and deceptive in that the amount of the consideration is stated as £2,000, when it was only 2,000 dollars; (v) it being denied by the Six Nation Indians as an act of their confederacy.
Particular stress was laid by the Pennsylvanians on the slovenly and de- fective character of the last-mentioned deed,# and it must be admitted that it
*See pages 242-244, Vol. I.
tIn reply to this point the Connecticut agents averred that the order of the King referred to was procured upon ex-parte representations made by the Proprietaries of Pennsylvania, and that the King himself, having granted the lands by charter, had no authority reserved to forbid the settlement. In this connection see pages 414 and 415, Vol. I
This deed, the manner in which it was executed, and the opposition early made to it on account of its alleged spuriousness and invalidity, etc., are described at considerable length on pages 269-292, 300, 301. 302, 303, 304, 305. 307, 332. 396, 400, 410, 411, 416, and 830.
In this connection we desire to correct an erroneous statement made on page 280. to the effect that the name of only one woman appears in the list of grantees in the deed. The names of two women appear-the second being that of "Rachel Millner", to be found in the third column on page 273, ante.
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bears on its face every evidence of having been written and executed in a bung- ling and ship-shod manner. The names of the grantors in the body of the deed, the amount of the consideration money, the description of the territory granted and the date of the execution of the document are all in a different handwriting from, and written with blacker ink than, the major part of the deed. In the list of grantees the name of John Henry Lydins has been carelessly erased, and that of Abraham Lansing substituted. The descriptive part of the deed begins at the top of page "II" of the document (see the photo-reproduction of the same facing page 276, Vol. I), and the lines from the third to the sixth, inclusive, are written on an erasure.
Undoubtedly the principal proprietors of The Susquehanna Company early conceived the desirability-yea, the necessity-of having a more complete and perfect deed for their Purchase, and so, in the Summer of 1763, they obtained, from a number of the chief men of some of the tribes of the Six Nations, a brand- new deed for the Wyoming lands-as narrated on page 417, Vol. I.
This deed (with other important papers relating to The Susquehanna Company) was carried to London, in August, 1763, by Colonel Dyer, and when he returned to America, in October, 1764, he left the papers of the Susquehanna Company in the hands of John Gardiner, Esq., of the Inner Temple. The latter gentleman, it seems, later got into some kind of trouble, and "ran away from London without first turning over to a representative of The Susquehanna Company. the deed and other papers belonging to the Company which were in his hands."* Colonel Dyer subsequently made several attempts to regain possession of these papers-particularly the Indian deed-but without success.
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