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 88
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Judge William Paterson gave the jury binding instructions, and made short work of the Connecticut title, in brief, as follows:
I. "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."
2. The "Indian deed" was summarily dismissed as one "under which the Connecticut settlers derive no title."
"It has been observed," said the Court, "that this deed is radically defective and faulty ; that fraud is apparent on the face of it, and particularly that the specification or description of the land is written on a razure. * *
* Besides, this deed appears to have been executed at different times, and not in that open, public, national manner in which the Indians sell and transfer their lands. But, if the deed was fairly obtained-if it has legal existence-then what is its legal ** operation? *
* The Penn family had exclusively the right of purchasing the land of the Indians; and indeed the Indians entered into a stipulation of that kind. Again, this deed is in- valid by the laws of Pennsylvania. The Legislature, by an Act passed Feb. 7, 1705, declare, 'That if any person presume to buy any land of the natives, within the limits, of this Province and Ter- ritories, without leave from the Proprietary thereof, every such bargain or purchase shall be void and of no effect.' * *
* The land in controversy being within the limits of Pennsylvania, the Connecticut settlers were in legal estimation, trespassers and intruders. They purchased the land without leave, and entered upon it without right. They purchased and entered upon the land without the consent of the Legislature of Connecticut. True it is that the Legislature of Connecticut gave a subsequent approbation, hut this was posterior to the deed executed by the Six Nations to Penn at Fort Stanwix, and the principle of relation does not retroact so as to affect three persons."
*The "notes of testimony" and "briefs" of some of the attorneys are in the hands of the heirs of Steuben Jenkins. +The original deed of 11 July. 1754, is now in the custody of the Pennsylvania Historical Society, Philadelphia (See photograph of the deed, page 276, Vol. 1.) To it is attached the ex parte deposition of Lydins, made in 1760. and some other depositions.
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3. As to the title under the Confirming Act of 1787, the Court declared:
"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.
* * and if this be the case, it cannot be "The existence of such power is necessary. *
lodged anywhere with so much safety as with the Legislature.
"Such a case of necessity, and judging too of the compensation, can never occur in any * * even upon full indemnification, unless that indemnification be ascertained in the
nation, *
*
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.'
"Bv 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 vacani 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. * * *
"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."
Judge Paterson closed briefly :*
"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 constitutional, 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."
It was said Vanhorne fled the country so that service could never be made upon him, and that Thomas, the attorney for Dorrance, soon after trial dis- appeared mysteriously, with all the papers of his clients.t
Other cases, too numerous and too technical in their details to mention here, were heard by various courts, interpretive of the Compromise Act and its amendments.#
In a few sentences, a Judge on the bench of Luzerne County seems to have interpreted the purposes and intent of the measure more profoundly, and certainly more satisfactorily, than will be disclosed by a painstaking study of all the other decisions involved.
In Barney vs. Sutton (2 Watts) David Scott,§ President Judge of the Court of Common Pleas of Luzerne County, sums the matter up concisely, thus:
"At last the Legislature adopted the expedient of acting as mediator between the Connecticut and the Pennsylvania claimants for the purpose of *The case was appealed to the Supreme Court of the United States. The docket entries there are as follows: .August Term, 1796.
"John Dorrance vs. Cornelius Vanhorne's lessees, error from the Circuit Court of Pennsylvania.
"1796. August, continued.
1797, February, continued.
1797, August 15, continued
"1798, February 14, continued
"1798, August 7.
"1799, February 14. Rule to assign errors within two days, or that the writ of error be non pros.
"1799, February 18 Ordered that the aforesaid rule be made absolute."
+The proceedings never were followed up, says Miner, page 452. "No attempt was made to put Dorrance out of possession. A movement was made to take the case up to the Supreme Court, but the Yankees alleged that Van- horne (an irresponsible person-a man of straw) could not be found to serve a writ upon."
Colonel Pickering, writing March 2, 1798, says "By this repeal (of the Confirming Act) the Courts of Law were opened to the Pennsylvania claimants, who were soon to get possession of the disputed lands, and rid the State of the burden of compensation! They brought many actions, and in eight years they have partly tried one cause."
#The constitutionality of the Act, however, was never questioned. In one case the Supreme Court says: "By the Act of 1799, for offering compensation to the Pennsylvania claimants in certificates, in case of lands settled before the Decree of Trenton, and to the Connecticut settlers of this description, patents from the Commonwealth on install- ments to be paid, the claim of the settlers became a right known to the law." Carkuff vs. Anderson, 3 Binn .. 12.
§DAVID SCOTT was horn at Suffield, Connecticut, April 3, 1781. About 1799, he came to Towanda town hip as a school teacher, and removed to Wilkes-Barre in 1807. Two years later, he was admitted to the bar of Luzerne County
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putting a final end to the controversy. The Act of the 4th April, 1799, was strictly an Act of mediation. It proposed terms of settlement and compromise to the parties: Most fortunately, the terms proposed were embraced by the parties, and THE CONTROVERSY FINALLY AND HAPPILY SETTLED."
"I believe he was, historically and legally, correct in his final summary," Governor Hoyt exclaimed at the close of his "Brief." And this same view --
--
HON. DAVID SCOTT.
that the Act was not a hard and fast rule of law, but was a constructive measure of mediation, has been generally accepted as its true intent ever since that view was judiciously and judicially promulgated.
The three Commissioners named by the Confirming Act were left to take hold of a complicated situation where the Legislature and the Courts left off. A most intricate task faced them. From a mass of documents, relating to this and was commissioned Clerk of Courts. Shortly after having been elected to Congress. in 1816, he resigned to accept an appointment as President Judge of the 12th Judicial District, with beadquarters at Harrisburg. Upon the resigna- tion of Judge Burnside, Judge Scott was brought back to Wilkes-Barre, by his appointment, in 1818, as President Judge of the 11th District, which embraced the counties of Luzerne, Wayne and Pike.
He was an organizer of the Luzerne Bible Society and served as a trustee of the Wilkes-Barre Academy for nine- teen years. In 1825, he was appointed to the State Board of Canal Commissioners, and is credited with the initiative which built the North Branch canal system. Judge Scott died, in Wilkes-Barre, in 1839, a year after having resigned from the bench on account of deafness. Among his contemporaries. Judge Scott was regarded most highly, not alone for legal attainments, but for bis worth as a citizen. His remains were interred in the burying ground of St. Stephens church, of which he was a founder, but were later reinterred in Hollenback cemetery.
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important link in the chain of welded titles, that are now recorded in Luzerne County, a few have been selected which will give an insight into the difficulties encountered, will disclose the feeling of distrust yet manifested on the part of claimants, and will reveal, as well, the patience and fidelity of those who event- ually executed the laws. The first letter of record on the subject follows:
"WILKES-BARRE, LUZERNE Co., 21st July, 1800.
"SIR: We find many difficulties in the execution of the act offering compensation to the Pennsylvania claimants of land in the county of Luzerne, particularly as we apprehend some of the enacting clauses are directly opposed to each other. We conceive it, therefore, to be necessary, indeed our duty, to apply to you, as Attorney General of the State, for your opinion and advice. "First section. 'That the said Commissioners shall not examine any lands but those which the Pennsylvania claimants shall have agreed, as aforesaid, to submit to their examination.'
"Fifth section. 'That it shall be the duty of the said Commissioners, also, to ascertain all the rights or lots within the Seventeen Townships, which were occupied or acquired by Connect- icut claimants who were actually settlers at or before the Decree of Trenton, and which lots or rights were particularly assigned to the said settlers prior to the said Decree at Trenton, agree- ably to the regulations then in force among them.'
"We ask, shall the prohibition in the first section prevent the Commissioners from ascer- taining and valuing the Connecticut rights or lots within the seventeen townships where the Pennsylvania claimants have not released to the State?
"The transfers and sub-divisions have been so numerous among the Connecticut claimants themselves, that it will be a work of years, if the Commissioners must attend to this minutiæ. "Question, then, Are the Commissioners to ascertain and value the original rights or lots (only) of the Connecticut claimants, or must they ascertain and value the numerous divisions and sub-divisions of those original rights or lots, as they are now held.
"In the progress, although there are other difficulties, we are unwilling to trouble you with more that what we consider indispensably necessary. In the meantime, we will proceed in such parts of the business as do not require decision on these points, and we take the liberty to mention to you that we judge it prudent to conceal our embarrassment, and to appear to act as if the law was clear to us in every particular.
"We request your answer as soon as convenient, by post, and are, respectfully, sir, "Your obedient servants, "THOS. BOUDE, "WM. IRVINE, "ANDREW PORTER."
"P. S. We will communicate to the Secretary of the Land office such other difficulties as occur, in detail.
"To JOSEFH B. MCKEAN, Esquire, Attorney General.
Another communication, more encouraging in tone, is next appended :
"Lancaster, November 10, 1800.
"SIR: Having officially learned from the Secretary of the Land Office that the necessary amount of releases by Pennsylvania claimants, and submissions by Connecticut claimants, of lands within the seventeen townships, (40,000 acres) in the county of Luzerne, had been received at that office in order to authorize us, agreeably to a provision of the act of Assembly, to proceed upon the duties of our commission, and also that the necessary papers were in readiness, we met in Lancaster, the beginning of June last, received the papers, appointed our clerk and surveyors, and made other necessary arrangements. In the latter end of the same month we met at Wilkes- Barre, and immediately entered on the business assigned to us.
"For some time after our arrival at Luzerne, the reserve of the inhabitants, and their re- missness in giving information respecting the boundary of Connecticut surveys, and other neces- sary points, was but too apparent. These unfavorable appearances, however, were gradually dispelled, and by a conduct of conciliatory and explanatory communication on our part, their confidence in the rectitude and benevolence of the Legislature, and in the disinterestedness and candor of the Commissioners, was increased, and, at length, generally acknowledged.
"In the prosecution of the business, and particularly in its commencement, many obstacles occurred. In many cases papers were wanting to complete our information. Many of the Penn- sylvania releases were incomplete and not to be acted upon; many of our drafts of survey were too loose and vague in description to enable us to ascertain the situation of the lands.
"The quantity of land completely released being, in proportion to the contents of the seven- teen townships, but inconsiderable on our first entrance on the business, and that indeed being dispersed in various parts, occasioned us not a little embarrassment and loss of time, more es- pecially as the difficulty of finding the tracts, owing to the want of connection, was thereby in- creased.
"The manors of the Penn family, amounting to upwards of thirty three thousand acres, if completely released would have furnished us full scope for immediate progress, while, in the meantime, Pennsylvania claimants generally would perhaps be completing former and executing additional releases. But we found that in the releases of the manors exception was made of such parts as had been sold and conveyed, or been contracted to be sold and conveyed, within their bounds, to individuals; and the lands thus excepted not being identified, we could not procced, respecting the manors.
.
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"We kept open a constant communication with the Land Office; advising the necessary exertions and cooperation to overcome existing and prevent future embarrassments and obstacles, and earnestly recommending the necessity of the attorney of the late Proprietaries ascertaining the issue of every contract with individuals within the manors, and furnishing us information thereof, and of the exact quantity and limits of the excepted tracts.
"We think it hut justice to the Secretary of the Land Office to state that the exertions in his department have been indefatigable to render as successful as possible the efforts of the Com- missioners. We were from time to time furnished from the Land Office with exemplifications of further releases. Some of our difficulties of course vanished as these became more general. In the meantime our surveyors were diligently engaged where the fewest embarrassments presented. "Finding the acts of Assembly in some parts not so fitly adapted to the state of facts arising before us, we experienced some necessary hesitation in its construction; and we are the more in- dehted to the Attorney General of the State for his readiness to oblige us with his opinion on several cases submitted to him, as we have since learned. That to afford us any opinion was not a part of his incumbent official duty.
"The whole history of this transaction, and the many instruments of submission received by the Commissioners, while at Luzerne, from Connecticut settlers, to be forwarded to the Land Office, afford manifest evidence that the magistrates and people at large within the seventeen townships are zealous to have the law carried into effect.
"We have the pleasure to assure your Excellency that much business has been pursued to such a length as to give us seasonable hopes that we, or our successors in office, will find a system established from which the Commissioners will in future progress with greater facility and more expedition.
"Investigating the principles and objects of the commission, and the tenor and tendency of the various provisions of the acts of Assembly, critically examining and analyzing the various subject matter contained in our official papers, attending our surveyors, searching for useful information, oral and written; ascertaining and running the boundary lines of a majority of the seventeen townships, and ascertaining the situation and surveying and valueing tracts within these townships released by Pennsylvania claimants, were matters which have occupied our assiduous attention.
"We think it proper to suggest that from the general knowledge we have been able to acquire of the subject in question, we conceive some eligible amendments might be advantageously made in the acts of Assembly. We feel it, however, becoming to forbear offering our opinion on these points until permission is given, or our opinion is required.
"We have the honor to be, sir, "Your Excellency's obedient servants,
"His Excellency, THOMAS MCKEAN, "Governor of Pennsylvania, Lancaster.
"WILLIAM IRVINE, "ANDREW PORTER, Commissioners." **
On June 27, 1801, Rosewell Welles addressed a letter of information to the Confirming Commissioners, in reply to an inquiry from them. He said among other things, referring to the Luzerne County Court, of which he had been a Judge, "The Court (in deciding questions of title resting solely upon the Con- neetient claim) embraced and took a very liberal ground. From their own knowledge, they were sensible that most of the public records, as well as private * documents of the people, necessary to their claims, were destroyed inl '78. * *
The best evidence of them, possible to be obtained, was always required and never dispensed with, by Counsel or Court. However this best evidence, in some cases, necessarily became remote, and indeed, when the variety of misfortunes which have attended this ill-fated County are really considered, it would be difficult to suppose it otherwise. From the descent of the enemy, in '78, one single engagement laid in the dust most of the males capable of bearing arms. To this, in the course of the next and the following days, succeeded a general destruction of houses, papers, and most of the PUBLIC RECORDS by fire."t
From Wilkes-Barré, July 21, 1801, a letter was addressed by the Commis- sioners, to the Board of Property, which throws additional light in the nature of claims being presented for consideration :
"The Connecticut claimants may be divided into four classes:
"(1) The principal Supporters of the speculators in the Connecticut title, such as Mr. Franklin and some others, by whom the spirit of actual opposition is perpetually kept up.
*GENERAL BOUNDE, the third member of the Commission, returned home seriously ill shortly after assuming his duties at Wilkes-Barre, and later, upon his resignation being accepted, Judge Thomas Cooper, of Lanca ter, was ap. pointed in his stead.
tSee "Pennsylvania Archives", 2nd Edition, XVIII : 362.
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"(2) Settlers without the townships, upon whole or half share rights, whose property and whose labor for many years have been invested in the purchase and improvement of land, under the Connecticut title, and whose all depends upon their present possessions so obtained.
"(3) Half share holders enticed into Luzerne County, chiefly of late years and since the Decree of Trenton, and who hold their possessions not from purchase in general, but chiefly under a kind of implied contract to defend them against the Pennsylvania claim.
"(4) Settlers within the seventeen townships, holding under Connecticut title, but of whom the most part have submitted under the Act of 1799. The first class will never be induced to submit but by force, or being directed by the other classes. The second class, persuaded (however im- properly) of the goodness of their title, will certainly endeavor to repel force by force, if they can muster strong enough; for they might as well die as be turned out with their families to starve.
"The third class will be more apt than any other to be guided by the first. The fourth class may certainly be detached from the others and secured to Pennsylvania by a liberal construction and effectual amendments of the present law."
On July 21, 1802, the then Commissioners (Cooper, Steele and Wilson) wrote to Governor Mckean, as follows:
*. "The resolutions (of the Susquehanna Company) subsequent to the Decree of Trenton contain manifest determinations of settling the Country in despite of Pennsylvania-of calling in a force for so doing, and paying them with the lands of Pennsylvania. * We think that * the apprehension of Franklin, Spaulding, and another or two, upon good ground, would go near to terminate the Dispute, if the Pennsylvania claimants would take some decisive measures to *
satisfy the settlers that the terms of the Compromise will be fair and liberal. * * Should it be necessary to have recourse to military operations, the settlers, after an ineffectual resistance might be driven off. If they return, a constant force must be kept up. But should they never come back again, that part of the state which is of more immediate value as a back country than any other, would become a desert, and a desert it would remain; for no Pennsylvanian will ever think of clearing land which none but a New England man can live upon. The half share people are for the most part deceived by the speculating principals of the Susquehanna Company, but
* they are a very orderly set of citizens and most industrious cultivators. * * It becomes of great importance to conciliate rather than to terrify a class of inhabitants who promise to be, in time, more peculiarly Pennsylvanians than many others who will become ere long but half so."*
It may well be inferred that many who held extensive tracts under Penn- sylvania, urged their claims vigorously before the Commissioners. But some there were of such title holders who immediately offered to release their titles after the terms of the Compromise Act were understood. Among these were the following, as disclosed by records preserved in the Pennsylvania Archives, and described as: "A list of applications and releases which have been given into the office of the Secretary of the Land Office, by Pennsylvania Claimants, dur- ing the summer and autumn of 1799, pursuant to the Act of April 4, 1799 -- for certain lands within the seventeen townships in the County of
Luzerne. * * * Charles Stewart, 5024 acres; Samuel Bowman, 625 acres; Wm. Bingham, 4015 acres; Wm. Tilghman, 1150; Jos. Wharton, 6854; Jno. and Richard Penn, 26 000 more or less; and includes the manors of Stoke, Dundee, Sunbury and all lands claimed by the Proprietaries in the 17 townships; Jos. Reed, 585; Saml. Sitgreaves, 3703; James Moore, 4213; James Gibson 1829; Edward Shippen, 6695."
A majority of Pennsylvania claimants, however, clung to the belief that further confusion of legislation or favorable Court decisions, might tend to recog- nize their rights to soil, rather than to compensation for its surrender, and refused to avail themselves of the terms of the Compromise Act. Indeed, not until an amendment was passed to the Act in 1802, which made it obligatory upon a jury to award Compensation in case the Pennsylvania claimant refused to exe- cute his release pursuant to the Act, did a well organized opposition to the Com- mission's power cease.
At a meeting of owners of land in the counties of Luzerne, Wayne, Lycoming, Northumberland, and Northampton, held at Dunwoody's, January 10, 1801, a memorial to the Legislature of Pennsylvania, on the subject of lawless intrusions on lands in those counties, was read and discussed.
See "Pennsylvania Archives" 2nd. Edition, XVIII : 461.
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At a subsequent meeting, April 9, 1801, it was "Resolved; That in order to obtain the beneficial effects, which may be expected to result from the Acts of Assembly, passed for the purpose of preventing and removing certain unlawful intrusions on lands in the counties of Wayne, Northampton, Luzerne, North- umberland, and Lycoming, it is necessary that the land-holders form themselves into an association. That the subscribers pay in proportion to the amount of land held in those parts of the counties aforesaid, subject to the former claim of the State of Connecticut, or certain companies or persons claiming under that State."
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