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 15
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The common belief of the chief men of The Susquehanna Company circa 1782, seems to have been that Gardiner had sent the papers to Colonel Dyer, but that they fell into the hands of a certain agent of the Pennsylvania land- claimers. This belief was plainly set forth years later by Col. John Franklin (see page 1227, Vol. II), in a communication printed in the Wilkes-Barre Gazette of September 23, 1800, and reading in part as follows:
"The papers alluded to were left with Col. John Gardiner, of London, agent for the Sus- quehanna, and Delaware Companies. Col. E. Dyer, who had left the papers with said Gardiner, sent for them a short time before the Revolutionary War. He received a letter from said Gardiner -- or, at least, the cover of a packet-that had been gutted of its contents, except a few papers of little consequence. It is since in proof that the aforesaid Indian deed and many other important papers, by some means unknown to the Connecticut agents or The Susquehanna Company, fell into the hands of John Rome of New York some time in 1774, who delivered them to Col. Cor- nelius Cox,t who then lived, and still lives, near Harrisburgh; that the said Cox, sometime in 1776, sent said papers to Col. [Turbutt] Francist and Lukens,? Esq., of Philadelphia -- the said Francis and Lukens being principally concerned for the Pennsylvania Proprietaries; that after the decease of Colonel Francis in [1777] said papers fell into the hands of Tench Coxe, then of Philadelphia and now of Lancaster, Pennsylvania [and Secretary of the Land Office of Pennsylvania]. It is also in proof that the said Tench Coxe has said that he 'delivered the said papers to one of the Pennsylvania agents (to wit: the late Judge Wilson) a short time before the Trenton trial.' Neither the State of Connecticut nor The Susquehanna Company has ever yet been able to procure them."
Further, with respect to the Indian deeds of 1754 and 1763, we have the testimony of the Rev. Jacob Johnson (see page 744, Vol. II), given in January, 1787, to Col. Timothy Pickering, and recorded by him at that time in his diary, !! as follows:
*See pages 440, 443, and 504, Vol. I. +See note, page 1192, Vol. 11.
#See page 489, Vol. I, and 664, Vol. Il
SJOHN LUKENS, sometime Surveyor General of Pennsylvania See notes on pages 654 and 861, Vol. II. ||See the original MS. diary of Colonel Pickering among the "Pickering Papers" (LVII: 39), mentioned on page 29. Vol. I.
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"He [Johnson] believed the Charter of Connecticut was better than that of Pennsylvania; that the Indian deed was a good one; that the original produced at Trenton was not the fair one, and was only kept by the Company, but not intended to be used. That after receiving that [one] of the Indians, the Company got another, in a fuller assembly of the Indians, and this was per- fectly fair. That this had been sent to England. That it had been returned, and fell into the hands of the Pennsylvanians, who kept it and would not produce it at the Federal Court, and they still had it."
Still further, with respect to the disappearance of the deed of 1763, we have the following, to be found in a memorial* presented to the General Assembly of Connecticut, at Hartford, May 10, 1787, by Col. John Franklin, "in behalf of himself and the rest of the inhabitants settled upon the rivers Delaware and Susquehanna."
"That the Penns, by their agents having by mere accident possessed themselves of the Indian Deed to the purchasers, and many other important papers-evidences of the title of this State to the lands aforesaid-applyed to the Congress of the United States for the constituting of a Federal Court for the settlement of the jurisdiction, &c. * * * Your memorialists are now able to prove beyond contradiction that the aforesaid deed and evidences of title were actually in the hands of the agents of the State of Pennsylvania before that State made their applica- tion to Congress for the establishment of said Federal Court, and that they secreted them until after the aforesaid decree, and now have them in their power and custody."
With respect to the missing deed of 1763, Miner says ("History of Wyom- ing," page 101):
"The deed was left by Colonel Dyer in the hands of an agent in England, from whom it was, as is alleged, unfairly obtained by the opposite party, who had it in possession in Philadelphia in 1782, and could and would have produced it at the Trenton trial if it had been vitiated by interlineation; and as they did not, the presumptions were all in favor of its fairness."
What ultimately became of the missing Indian deed of 1763, we are unable now to learn.f
The counsel for Connecticut were well convinced, some time before the trial at Trenton began, that, in the absence of the deed of 1763, they would have to rely on their deed of July 11, 1754; and so, in the Summer of 1782, they had this deed duly recorded among the archives of The Susquehanna Company at Windham, Connecticut, and then, on October 26, 1782, in the office of the Sec- retary of State of Connecticut-as related on page 289, Vol. I. At the same time the deed from the Indians to The Delaware Company was recorded in the office of the Secretary of State-as mentioned on page 294, Vol. I.
Also, in preparation for the trial at Trenton, the agents of Connecticut obtained in October, 1782, the affidavits of the Hon. 'Stephen Hopkins, Lieut. Col. Thomas Dyer, Capt. Vine Elderkin, Allen Wightman, Cyprian Lothrop and Capt. William Gallup, hereinbefore printed .; But whether or not these affidavits, as well as the deposition of the Earl of Stirling§ (taken at the instance of the agents for Pennsylvania), were admitted as evidence by the Trenton Court, we are not able now certainly to determine; but presumably and undoubt- edly they were.
The hearing of the cause, including the arguments of counsel, continued until December 24, 1782, when the closing argument was made by Mr. Root. The Court then took possession of the various briefs, records and exhibits which had been filed in the case, and proceeded to consider them in secret. On Monday,
*The original is "No. 172" in the collection of documents mentioned in paragraph "(3)", page 29, Vol. I.
tAt Wilkes-Barre, under the date of July 13, 1801, Judge Thomas Cooper and Gen. John Steele, Commissioners under the "Compromise Act" of April 4, 1799, and its supplements, wrote to the Hon. Tench Coxe, Secretary of the Pennsylvania Land Office, in part as follows: "You are also of opinion that, for the purpose of ascertaining whether the seventeen townships are all within the hounds of the purchase of The Susquehanna Company, we ought to demand inspection of the Indian Deed. We believe that Mr. [John] Franklin has lately [within these two months] procured from a Mr. Pepoom, of Albany, the original deed; but we are persuaded he would not entrust us with it, nor do we know upon what fair plea to insist upon it."-"Pennsylvania Archives", Second Series, XVIII: 455.
#See pages 291, 475 and 477, Vol. I, and page 630, Vol. II.
§See pages 288 and 289, Vol. I.
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December 30, 1782, the Court reconvened, and pronounced the following decree *:
"This Cause has been well argued by the Learned Council on both sides.
"The Court are now to pronounce their Sentence or Judgment.
"We are unanimously of Opinion that the State of Connecticut has no right to the Lands in Controversy .-
"We are also unanimously of Opinion that the Jurisdiction and Pre-emption of all the Territory lying within the Charter boundary of Pennsylvania and now claimed by the State of Connecticut do of Right belong to the State of Pennsylvania .-
[Signed] "WM. WHIPPLE "WELCOME ARNOLD "DAV'D BREARLEY "CYRUS GRIFFIN "WILLIAM C. HOUSTON."
"Trenton, 30th Dec'r, 1782.
In forwarding to the Hon. John Dickinson, President of the Supreme Executive Council of Pennsylvania, a copy of their Decree, the Commissioners sent a lettert (written by President Whipple) reading as follows:
"TRENTON, 31st December, 1782.
"Sir: We take the liberty to address your Excellency, as private citizens lately honored with a Commission to hear and determine the controversy between the State of Pennsylvania and Connecticut, relative to disputed Territory.
"In the course of executing this Commission we have found that many Persons are, or lately have been, settled on the lands in Question. Their individual claims could, in no Instance, come before us, not being within the line of our appointment. We beg leave to declare to your Excellency that we think the situation of these People well deserves the notice of Government. The dispute has long subsisted. It may have produced Heats and Animosities among those living in or near the Country in Contest, and some Imprudences may take place and draw after them the most unfavorable consequences.
"With all deference, therefore, we would suggest to your Excellency and the Council, whether it would not be best to adopt some reasonable measures to prevent any, the least, Violence, Disorder or misunderstanding among them; and to continue things in the present peaceable pos- ture until proper steps can be taken to decide the Controversies respecting the private right of soil, in the mode prescribed by the Confederation. We doubt not an early Proclamation from the Ex- ecutive of Pennsylvania would have all necessary good Effects, and we feel ourselves happy in the fullest confidence that every means will be adopted, or acquiesced in, by the State to render the settlement of this dispute complete and satisfactory, as far as may be, to all concerned.
"We have the Honour to be, with great respect,
"Your Excellency's most obedient,
"And very humble Servants.
"To His Excellency JOHN DICKINSON, Esqr."
[Signed] "WM. WHIPPLE "WELCOME ARNOLD "W. C. HOUSTON "C. GRIFFIN "DAVID BREARLEY
The foregoing letter was received by President Dickinson, and was filed by him with the Supreme Executive Council January 2, 1783, but no publicity was given to it. Subsequently the letter passed into the possession of President Dickinsont himself. On February 18, 1790, Col. Timothy Pickering (then living in Wilkes-Barré), having heard that such a letter had been written and signed by the Commissioners, wrote to Judge Brearley, inquiring about it and asking for a copy of it. At Trenton, under the date of March 4, 1790, Judge Brearley wrote to Colonel Pickering as follows:§
"My first letter to Colonel Neilson|| by some means miscarried. However, I have now got his answer,which is, he has 'not got a copy of the letter which is wanted.' I am apprehensive it is not to be found. We had very strong reasons for writing to the President of Pennsylvania. We were fully acquainted with the peculiar circumstances of the New England settlers. We knew that many of them had honestly paid for their possessions; that they verily believed the
*See "Pennsylvania Archives", Second Series, XVIII: 629.
tSee Hoyt's "Brief of a Title in the Seventeen Townships in Luzerne County", page 45.
#Surmising that Mr. Dickinson had this letter in his possession, Colonel Pickering wrote concerning it to him at Wilmington, Delaware, March 25, 1793, and a few days later received a reply, in part as follows: "It gives Me very particular Pleasure, that I have found the Letter from the Commissioners. Confiding that it will be immediately delivered to the Supreme Executive Council of Pennsylvania, it is enclosed." According to Mrs. Murray's "Old Tioga Point and Early Athens" (page 228) the letter in question is now in the possession of the heirs of Edward Herrick, Jr. at Athens, Pa.
§See Hoyt's "Brief", page 103.
|Col. JOHN NEILSON, who had been Clerk of the Trenton Court. See (+) note page 1296.
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title, under which they claimed, to be perfectly good; that they had cleared, huilt upon and im- proved the lands; that in doing this they had encountered many dangers and suffered innumerable hardships; and beyond all these things-and what cannot be estimated-many of their nearest connections had spilt their blood in defense of their possessions.
"Thus circumstanced, it was manifest that they had become enthusiasts for the land; that the reasoning of legislators and statesmen would have but little weight with them; that if the State should attempt to dispossess them, they would become desperate, and a civil war would be the consequence. On the contrary, if the State should quiet them in their possessions, they would become peaceable, good citizens, and that the State would compensate those who held under Pennsylvania title by giving them an equivalent in lands or money at a less expense than that of dispossessing the New England settlers. That, therefore, the interest of humanity and the policy of the State would be to lead them to adopt the measures that we recommended.
"The letter bore no official authority. We subscribed it as private citizens. Neverthe- less we did conceive that it would have some weight, as it would be apparent that our means of information had been better than those of any other persons who were disinterested."
The following brief but cogent statement of The Susquehanna Company's case, as developed at the Trenton trial, is from a letter* written at New York, March 6, 1790, to Col. Timothy Pickering, by Dr. William Samuel Johnson, previously mentioned.
'"I have just now received your favor of the 3d inst., and as I shall have no time season- ably to answer it, except a few minutes this evening, I instantly sit down to acquaint you that the Susquehanna settlers had no formal grant from Connecticut. The reason for which was that their original plan was to establish a new Government or Colony in that part of the country, under the Crown of Great Britain. They, therefore, with the approbation of the then Governor of Connecticut, first purchased of the Indians, and then obtained from the General Assembly of Connecticut an approbation of their proceedings and a recommendation of them to the Crown, for the purpose of their being created into a Government.
"Application was accordingly made to the Crown for that purpose. But, meeting with many delays at the Court of Great Britain, they again applied to the Assembly of Connecticut, who having, by that time, determined to vindicate their claim to the whole western part of their Patent, they, by several Acts of the Legislature, took the Susquehanna settlers under their pro- tection, extended the jurisdiction of the Colony over them, and established government amongst them.
"This was considered by the Colony and the settlers as so full a ratification of all their proceedings, and expecially of their Indian purchase, as rendered any formal grant (which at most could amount only to a right of pre-emption, or a liberty to purchase of the natives) al- together unnecessary, and therefore none was ever applied for-those Legislative approbations being considered as securing their titles under the Colony more effectually than any grant or deed could do. In fact, by the law of Connecticut the Susquehanna settlers were (previous to the Tren- tou trial), in holding those lands, regularly under the Colony of Connecticut; and had she been able, at that trial, to have established her title, no question would or could ever have been made but that the said settlers had as good a title to their lands as any settlers in North America."
Concerning the Decree of Trenton, Judge Cyrus Griffin (who had been a member of the Trenton Court) wrote under the date of September 15, 1796,t to Barnabas Bidwell, Esq., of Massachusetts, sometime counsel for The Susque- hanna Company, as follows:#
"Being upon a tour of duty in the line of my office, I had not the pleasure of reading your letter until yesterday.
"Before the Commissioners determined that important contest between Pennsylvania and Connecticut, it was agreed:
"1st. That the reasons for the determination should never be given.
"2d. That the minority should concede the determination as the unanimous opinion of the Court.
"No doubt sufficient reasons appeared to us to adopt these preliminary points. Whether strictly justifiable, or at present would be adopted, I will not undertake to say. Perhaps a different course might be pursued; but this I will undertake to say, that no Court ever met and decided a great question less subject to partiality or corruption, or in which more candor and freedom of debate were exercised.
"As you seem to suppose, I do not know in what manner the jurisdiction might be consider- ed if tried again; and especially since a number of important discoveries have been made, and a mass of evidence can now be produced which was not known at that time. But I can assure you, Sir, that the Commissioners were unanimously of opinion that the private right of soil should not be affected by the decision. The decision was not to reach the question of property in the soil.
"We recommended, very strongly-derived from' legal and political grounds-that the settlers should be quieted in all their claims by an Act of the Pennsylvania Assembly; and that the
*See the "Pickering Papers", LVIII: 221.
tAt this time Judge Griffin and Welcome Arnold were the only surviving members of the Court.
#See the "Pickering Papers", LVIII: 350, and Hoyt's "Brief", page 46.
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right of soil (if I recollect truly), as derived from Connecticut, should be held sacred. Such, how- ever, I am certain, was the opinion of the individuals who composed that Court."
The people of Wyoming, generally, viewed the proceedings of the Trenton Court with comparative indifference at first, assuming that the question at issue before the Court was as to political jurisdiction only. But, very quickly after the decree had been extensively promulgated and thoroughly discussed by the people, there came a change of opinion. Colonel Pickering recorded in his diary*, under the date of January 24, 1787, at Wilkes-Barré, that he had often heard, previous to that time, that the judges of the Trenton Court had been bribed; and that it was then charged "that Colonel Dyer (the most zealous agent on behalf of Connecticut, and one deeply interested in The Susquehanna Company) was also bribed by Pennsylvania to betray the cause of Connecticut and the Company."
Charles W. Upham, in his "Life of Timothy Pickering" (II: 232), says, referring to the Decree of Trenton:
"Thus ended the Wyoming controversy between the two States. It ought to have ended strife, and given peace at once and for ever to the unhappy valley; but it did not. The Govern- ment of Pennsylvania ought instantly to have quieted the Connecticut settlers in the possession of their farms with their improvements. The affections and allegiance of such a people would have been worth more than all their lands. But other counsels prevailed, and a new chapter of dis- orders and troubles was opened."
The following editorial, printed in the Wyoming Republican and Farmer's Herald (Kingston, Pennsylvania), August 23, 1837, sets forth briefly an opinion with reference to the Decree of Trenton which early found lodgment in the minds of the Connecticut settlers in Wyoming, and which continued to strengthen as time went on :-
"The fact is notorious. I need not argue it now. If called on I will, however, do it, and show conclusively that Wyoming and this western part of Connecticut was, by the Trenton Decree, transferred to Pennsylvania, not on legal principles, but on grounds of National and State policy, to which Connecticut made only a seeming, not a real, objection; that it was done to consolidate the union of the State-to promote harmony-to conciliate Pennsylvania."
Miner, in his "History of Wyoming," page 448, commenting upon the letter of Judge Griffin to Barnabas Bidwell (previously mentioned), declares:
"I assume again with the utmost confidence, that my proposition is well established, viz .: That the Decree of Trenton, adjudging the jurisdiction to Pennsylvania, was a decision of policy and not of right; that it could not, and did not, affect the right of soil."
The following paragraphs, relating to the Decree of Trenton, are from an addresst entitled "Wyoming; or Connecticut's East India Company," delivered before the Fairfield County Historical Society, Bridgeport, Connecticut, April 21, 1893, by Henry T. Blake, Esq., of New Haven, Connecticut :-
"There are grounds to believe that this decision was not entirely unexpected, or even dis- agreeable, to Connecticut, for reasons which do not appear on the surface. So many States had conflicting claims to western territory that there was every prospect of inextricable confusion and controversy, and possibly a disruption of the Confederacy, unless there could be mutual adjustment and compromise on this subject. That there was some secret understanding between Connecticut and Pennsylvania is indicated by the fact that, immediately after the Trenton Decree Connecticut ceded to Congress all her lands lying west of Pennsylvania-reserving, however, a certain tract in Ohio, since known as the Western Reserve.
"These Ohio lands were also claimed by Virginia, and if the title of Connecticut was bad to the Wyoming Valley, it was bad, for the same reasons, to all land west of it. Yet, on the ques- tion whether Congress would accept the cession and recognize the right of Connecticut to keep the Western Reserve (a question which gave rise to much debate), Pennsylvania always voted with Connecticut, and, in one instance, in opposition to all the other States."
The Hon. Henry M. Hoyt, in his scholarly and admirable "Brief of a Title in the Seventeen Townships in Luzerne County," makes some "personal *See the "Pickering Papers", LVII: 39.
¡See "Reports and Papers, Fairfield County Historical Society, 1896-'97," page 45.
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reflections" on the faets relating to the trial at Trenton, and the "Decree", in part as follows:
"The Connecticut Charter of 1662 fairly included the territory described in its limits, as contended for by its partizans.
"No action was ever taken by the Crown to vacate it or modify its bounds.
"No legal necessity existed to purchase the Indian title; and what is called 'the right of preemption' is unmeaning and insignificant as between Colonies. The Indian title and possession was a lien, or incumbrance, which was to be extinguished or not, at the option of grantees. The charters were not granted subject to Indian titles.
"One cannot well escape a sort of general intuitive conviction that the Court at Trenton worked out the correct result. There is, it is true, no defect in the technical legal title of the Col- ony of Connecticut. The difficulty is, therefore, to account for this instinctive conclusion against it. Throwing the settlers and their private rights out of the case, I think the weak link in the chain lies here: From the date of Penn's charter, in 1681, to the year 1773, Connectictit had not definitely 'asserted title,' either by legislative enactment or popular movement. Neither the Col- onial authorities nor the leading men had, evidently, set any great store by, or taken any action based on, their possessions west of New York. * * * "The movement of The Susquehanna Company was in accordance with the genius of the whole northern colonization scheme.
"In Carkuff vs. Anderson, 3 Binn., 10, Justice Brackenridge said: 'The appearance of right which The Susquehanna Company, a people of Connecticut, had to advance a claim to this district of country, is in my mind in considering the case before me. I do not view them in the light of trespassers, with a full knowledge of their want of title. At all events, the bulk of them do not appear to have been apprised of their want of title, and I make a great distinction between trespassers knowing, or having good reason to know, their defect of title, and such as may reason- ably he supposed to be ignorant of what they are about. Before the Decree of Trenton, the most intelligent and the best informed might have been led to believe that the part of the country in ques- tion was settled under a good title from the State of Connecticut. But, in favor of those who had settled under the idea of a good title, and with an expectation of enjoying the land which they were improving and defending, at a great risk and with much loss, from the common enemy dur- ing the Revolutionary War, there is a claim which ought not wholly to be disregarded. I do not call it a right, but a claim on the ground of moral obligation.'
"Connecticut, at Trenton, did not insist on her historical claim to all lands in Pennsylvania north of Latitude 41 North, nor even to all the lands comprised within the Indians' deed of 1754 to The Susquehanna Company. Her final stand was made on the settlements and improvements made in the county of Westmoreland. There would seem to be no doubt that proof was offered, and successfully, before the Court, of actual settlements under Pennsylvania, and under rights de- rived from the Proprietaries in 1730, 1732 and 1740-thus prior to any others. * * *
"At the time of the Decree of Trenton the Colonies, grown into States, had hardened and settled into definite and reasonable municipal limits, and that Decree was correct, both in right and policy; saving, as it did, 'the private right of soil.' The problem came now between them and the actual bona fide warrantees of a Pennsylvania title. It was a question of real difficulty and deli- cacy. The land speculators, not numerous, but influential, were reckless and clamorons. The people, the best publicists and the ablest lawyers gave long and anxious consideration over some device by which a sovereign State might protect its own grantees, and deal justly with the claimants under another sovereignty.
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