USA > Pennsylvania > Bradford County > Athens > A history of old Tioga Point and early Athens, Pennsylvania > Part 83
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TRESPASS SUIT AND WRIT OF POSSESSION.
Near the first of April, 1808, Mrs. Mathewson went on to plough the lands. Her teams were warned off by Henry Welles; who finally brought action in trespass, quare clausum fregit, before Justice Saltmarsh ; which was referred to Gore, Shepard and Kingsbery, all holders under the Connecticut title; before whom the defendant offered to swear that the title to lands would come in ques- tion. The plaintiff's counsel exhibited her deed for the lands, to show that she should be precluded from that oath ; but the deed being rejected as a nullity and a penal thing, according to the Territorial Law, her oath was admitted, and the suit thrown out of the justice's jurisdiction. Upon this, Henry Welles made no further effort against Mrs. Mathewson's resumption; but on the 5th day of July, 1808, a writ of habere facias in favor of Charles Carroll, upon his judgment by default in the Circuit Court was executed by Jacob Hart, Sheriff of Luzerne County, as Deputy Marshal; and all the lands covered by the ejectment (except the house and lot), delivered to Henry Welles as agent for Charles Carroll of Maryland.
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The house and lot were not only left to Mrs. Mathewson, but Henry Welles permitted her to take off all the growing crops (5th July before harvest) ; gave her a lease of four lots for the next year, exempted her from cost, and promised to get her the Pennsylvania title for the house and lot; thus, notwithstanding her con- duct, still sustaining the equitable consideration of her deed. Certainly this was liberal treatment, and such as could not have arisen from unmanly motives; but let us see what this report says about it :
"Efforts were made by the marshal." says the report, "to get possession of "the house and lot occupied by Mrs. Mathewson; but he was unable to get in, in "consequence of the house being fastened."
It is obvious from the beginning to the termination of the ejectment, that no intention of taking the house and lot ever evisted. If directed otherwise, it would have been the marshal's duty to take possession, fastened or unfastened; and of course he would have done so. What is the testimony ?
Nathaniel Satterlee, since deceased, deposes that Mrs. Mathewson "locked "herself up in the house and prevented the marshal from taking possession of it; "and that he believes, but does not state positively, that Mr. Welles was within a "few rods when Mr. Hart was trying to enter the house."
Snell, deposes substantially to the same, as to fastening of the house. Job Irish deposes, that he "was sent for by Mrs. Mathewson to attend as her "counsel when the deputy marshal was up with the habere facias; and understood "from the said Elizabeth, that she had shut her house with intention of resisting "the marshal, but on the assurance of Henry Welles that she should not be dis- "turbed in the possession of her house and lot, but that the same should be re- "leased to her, she had opened her doors."
These witnesses fully corroborate each other, and show that Mr. Hart in knocking at the door, called to inform her of his execution of the writ; and that he was directed not to take the house and lot.
Again, the report asserts "It appears that Mr. Hart, the deputy marshal, ad- "vised Mrs. Mathewson to apply to the court and have the judgment opened ; this "was in the presence of a man of the name of Job Irish, who had been acting for "or was employed by Mrs. Mathewson. Irish communicated this to Welles; who "proposed to give her the crops on the ground, and the use of four lots next year, "and get her the Pennsylvania title for the house and lot. Irish advised her to "agree, which she did." The report says, (on oath, ) that this "appeared ;" meaning to convey that it appeared by testimony before them :- but WHERE is the testimony
that shews it? Nathaniel Satterlee, - Snell and Job Irish, are the only witnesses of this period ; and neither of them says, that Hart gave any such advice ; neither of them says that Mrs. Mathewson ever spoke of opening the judgment. The voluntary liberality of Henry Welles on taking possession is called the "agree- ment," the "arrangement of July 7, 1808;" and the report asseverates that this arrangement, "it appears," was induced by the advice of Hart to apply to the court and have the judgment opened, "WHICH WELLES WAS ANXIOUS TO PREVENT."
Not one word of all this was supported by the evidence before the committee!
If these were Mrs. Mathewson's assertions, why were they not given as such? If they were Mrs. Mathewson's assertions, and corroborated by the legal position of the parties, they might have been moral evidence, entitled to repeti- tion as hers, in the report.
If, on the other hand, they were Mrs. Mathewson's assertions, unsupported by testimony and CONFUTED, IMPOSSIBLE within the legal position of the parties, why were they introduced as "appeared in evidence"? What was the legal situation ? What title could she have sworn to in her affidavit, on motion to open the executed judgment in ejectment? Which could she plead, the Intrusion law or the Terri- torial law? On the other hand, had Charles Carroll, or Henry Welles, anything to fear from any court of justice? Had they anything to fear from the Circuit Court of the United States? Had they anything to fear from the Pennsylvania Legislature of those years? Certainly not. Did Jacob Hart, then,-did a man of his known sense and information "advise" Mrs. Mathewson to apply to the United States Court and have the judgment opened ? Did he, a man so well acquainted with the outlawed condition of Connecticut claims, "advise" her to incur such
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hopeless expenses? Surely he never could have so advised; neither could she ever have entertained a moment's thought of such a measure. Neither could Henry Welles have been ANXIOUS TO PREVENT a step so harmless. Why then is it, that this report, without evidence, and in defiance of known laws, adopts the pal- pable falsehoods of the party interested, returns them to the House as "appeared" in testimony, perverting the liberality of Henry Welles into the deep bribery of an oppressor, trembling lest his sinuosities should be detected ?
BEDFORD AND ULSTER ACT OF 1810.
Petitions from the townships of Bedford, present Ulster, and Athens, pray- ing for an extension of the Compromising law of 1799 and supplements, were presented to the House of Representatives by Mr. Satterlee, in February, 1809; and after a favorable report, the subject was recommended to the attention of the next Legislature. Before this period, Henry Welles, being then young and unac- quainted, had taken some pains to ascertain what bearing the Act proposed would have on Pennsylvania owners in possession. He was informed by the Commis- sioners under the Act of 1799, that no such person ever had been, or ever could be, disturbed by that act ; that the policy and intention of the system, as well as consti- tutional rights, clearly protected those in occupancy under the State; but that nevertheless it might be well to procure the introduction of a provision into the bill which should expressly declare that construction. Accordingly he wrote to Mr. Palmer of the Senate, 1808-9, to remonstrate on behalf of Pennsylvania owners in possession ; or in case the bill should pass to see that it should be so shaped as to do them no injustice or disquietude. Mr. Palmer replied that all concerned might be sure that he would attend to that point. The proposed measure was also a subject of correspondence between Mr. Caton and Henry Welles; the former expressing his willingness that the Act should pass and take effect, as to the lands of himself or Mr. Carroll, still possessed by Connecticut settlers, and leave him to his remedy upon the Commonwealth. All the Pennsylvania owners not in possession, were willing that the Act should pass, and they take their remedy; the sentiments of the House, however, were decidedly and almost unanimously unfavorable.
Henry Welles was elected to succeed Mr. Satterlee in the House of Rep- resentatives for the next session, 1809-10, and took his seat a new member and a young man, conscious that the success of this petition was the first wish and chief interest of the immediate country which he represented. It was the only important object to be effected for his near constituents ; many of whom had preferred him especially on this account, imagining that a Pennsylvania claimant would be heard most favorably. Upon the quieting of those old settlements upon the river, furth- ermore, depended in a main degree the submission of the settlers who occupied the new townships, a large proportion of Bradford County.
The bill met with very strong opposition. Athens was decisively stricken out on motion of Mr. Frailey in the House of Representatives; and its operation re- stricted to the imaginary line of Old Ulster; that having been designated as one of the seventeen townships. Without this amendment the bill would inevitably have failed ; and even then, notwithstanding his best exertions, it was so narrowed down as to benefit none other than those who had been settlers actually resident in said township, or in some one of the seventeen townships, on the 28th March, 1787; and after all met with strenuous resistance, and passed with difficulty.
THE PROVISO.
The last charge set forth in the report against Henry Welles, is, that in drafting the bill thus passed into an act of this Assembly, he inserted, or caused to be inserted, (for it is believed that it was drafted by Mr. Ellmaker, Attorney General,) a Proviso that did not exist in the Act of 1799, as follows: Sec. 7. "That nothing in this Act shall be construed or understood to authorize or em- "power the said Commissioners to certify to any person or persons any land "within the said townships held or claimed under a Pennsylvania title, under a "patent, location, warrant, or settlement, where the Pennsylvania claimant is in "actual possession or occupancy of the land, either by himself or tenant, at the "time of the passing of this Act" :- and that this proviso alone was the impedi- ment whereby Mrs. Mathewson was excluded from the benefit of the law.
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In reply it will appear that she was not excluded by this proviso alone; but that, even if this provision had been omitted, Mrs. Mathewson, waiving her deed to Henry Welles, could not have obtained a certificate for the lands in possession of Welles and Carroll; the expulsion of Pennsylvania settlers being contrary to the policy and intention of the Act, and of all such; as is established by the de- cisions of the Commissioners, and the opinions of the Supreme Court upon a like act, that of 1799; and that therefore the proviso of 1810 was merely declarative of pre-existing law, and of constitutional rights as recognized by decisions there- tofore settled.
It is obvious that action under the Compromising system of 1799 in relation to Pennsylvania owners in possession, must have been limited in the hands of the Commissioners by two distinct considerations :-
1. by the boundaries of legislative power ;
2. by the policy and intention of the Act itself.
As to the first consideration : the act termed Compensation Law stretched legislative power to its very widest extent. The Constitution of Pennsylvania, Article I, Sec. 13, declares that each House "shall have all the powers necessary "for a branch of the Legislature of a free state."
A large portion of the Commonwealth's territory was held by an hostile possession, under the adverse claim of Connecticut; rebelliously continued after decision had between the two states at Trenton, and rapidly increasing.
The Commonwealth, subsequently to the Trenton Decree in her favor, had sold the whole of this territory to numerous individuals of her own citizens, and received full payment ; investing them with rights declared "forever inalienable" by the Constitution. She then was bound to put her purchasers into possession ; and that impossible without recurrence to military force. Under these grave cir- cumstances, she paltered and delayed. During every moment of delay the intrud- ing power was gathering strength. The brief alternative was this :- to yield and be despoiled, or plunge at once into civil war.
Finally, the Legislature of Pennsylvania decided that it had become "neces- cary for the Legislature of a Free State," even at the expense of a violation of vested rights, to break the strength of this growing combination, by quieting certain possessions.
The seventeen townships granted prior to the decision at Trenton, Decem- ber 30, 1782, distinguished their preference for favor ; jury compensation provided for the Pennsylvania owners; and the Legislature thus evaded the emergency, by divesting actual owners and quieting actual possessors, as a State necessity, in avoidance of civil war.
On this ground, then, the Acts of 1799 and supplements were held to be constitutional in relation to Connecticut settlers in actual possession. But in relation to PENNSYLVANIA OWNERS in actual possession, the State of Pennsylvania could be under no necessity of waging civil war to put or protect them in posses- sion, so long as the fact of possession proved that no such necessity existed. Therefore, it could not be "necessary" for the Legislature to turn out a Penn- sylvania owner in possession, and put a Connecticut claimant in :-
Therefore, the Act of 1799 and supplements, could have no constitutional force against Pennsylvania owners in possession.
POLICY AND INTENTION.
The plan adopted by the Legislature at that period was, to draw an equitable line of discrimination, which should divide the force of this formidable combina- tion. To concede the whole, would have been an imbecile abandonment of rights ; to compensate all the Pennsylvania owners, would have swept the treasury. An obvious distinction was adopted.
By the act passed April 4, 1799, and its supplements, called the Compensat- ing or Confirming Laws, provision was made to quiet the possessors of such lots, within the seventeen townships, as had been acquired under the rules of Con- necticut, at a period when such entrance and acquisition had not been judicially marked as a violation. Those lands granted, entered, and acquired, before deci- sion had between the two states, were held to have been entered and acquired excusably; and therefore, as a matter of grace and expediency, and not as a mat-
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ter of right, the Legislature enacted to quiet such possessions. It is evident that the policy of this measure was to divide and weaken an existing opposition, by quieting such certain possessors. The eviction of the Commonwealth's own cit- izens would have been a step retrograde from this policy; therefore, it follows that such could not have been the object and intention of the acts. The aim of the whole system was to quiet settlers in possession ; therefore it could not enure to the benefit of those who had no possessions wherein to be quieted.
Waiving the Constitution then, it is evident that in these acts no principle was recognized which could be stretched to the eviction of Pennsylvania owners in possession. These did not enter on grounds merely excusable; they entered of right, under the invitation and contract of the Legislature; paying the Common- wealth and supporting her laws. This was not a class which the Legislature would have desired to extinguish ; such citizens were greatly needed then in every section of that country.
"The object of the lawgivers," says Justice Yeates, in Enslin vs. Bowman (6 Binney, 472), "was not to recognize the validity of the titles held under the Sus- "quehanna Company, but to quiet the possessions of those who were the real oc- "cupants of lands under that claim" ;- for, says Chief Justice Tilghman, in the same case, "it will be difficult to assign any motive, either of justice or policy, "which should have induced the Legislature to take away the rights of their own "citizens in order to make way for persons who had rendered the State no service. "but had on the contrary been the authors of much disturbance, expense and "vexation."
Under the Compromising system of 1799, then, no validity was given to the title of a Connecticut claimant, out of possession, whereby he could have obtained certificate, patent, and recovery against a Pennsylvania owner in possession; and no such monstrous principle would have received a moment's toleration in the Legislatures either of 1799, 1802, or 1810; even if a principle of that extent could constitutionally have been put in force.
That the Commissioners under the Act of 1799 and supplements, did so con- strue those acts, and regulate their practice under them accordingly, will appear on examination of Judge Cooper's correspondence with the Secretary of the Land Office, now remaining in that department; and which was examined by the Committee of last session, at least by the active and reporting member of that Committee.
As further evidence, unnecessary however, the deposition of Nathan Beach, Esquire, not obtained in time to lay before the committee of last session, but which was before the House and quoted in debate. He testifies as follows : that when the Commissioners proceeded, as directed by the supplement of 1802, "in survey- "ing the town of Salem, they found persons in actual possession of land, who "held the same by virtue of a Pennsylvania title. Mr. Cooper wrote to me, as one "of the township committee, to call at his office, which I did; he informed me "that those persons holding titles derived from the Commonwealth and in pos- "session of their land at and before the passing of the law, could not be disturbed ; "and said, if he had been informed of their situation he would have had a provi- "sion in the act in their favor. He also said the law was intended to quiet the "actual settlers in those townships. Accordingly the Commissioners did direct "their surveyors to survey to those settlers that had Pennsylvania titles and were "in possession of their lands, agreeably to their patents; towit, to George Smithers "and Christian Hans; and a part of the town of Berwick, which was taken out of "the Connecticut certificates ; as will appear on the drafts of said townships." He adds, "that eighty one acres and some perches was surveyed to Christian Hans "and taken out of my certificate; and gave me a certificate for the remainder, "which contains about sixty-three acres."
ENSLIN VS. BOWMAN CASE.
Judge Fell of Luzerne County, clerk to the Commissioners of 1799, deposes that it "was his understanding of the opinions of the Board, that where there was "a settler on an improvement under a Pennsylvania claim, on which a survey was "made prior to the Confirming Act, the commissioners would not grant a certificate "to a Connecticut claimant; but where a settler was on under a Pennsylvania
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"claim, originating since the Confirming Act, and the Connecticut claimant made "out his claim to their satisfaction, they would give him a certificate."
The only certificate ever issued for lands in possession of a Pennsylvania owner, was granted under this distinction mentioned by Judge Fell; and is the same that was contested in the case of Enslin vs. Bowman; 6 Binney. The lot claimed by Bowman, plaintiff below, had been applied for under the Confirming law, the tract being then vacant land of the Commonwealth; and was therefore held by the Commissioners to have been under a degree of promise to the Con- necticut claimant. The latter not, however, being in actual possession, the title of Enslin was attached to the same land at a subsequent date, under the Act of 1792, by actual settlement, warrant and patent. The Commissioners held that under these circumstances the Connecticut claimant had priority ; but the Supreme Court decided, that as the Confirming Law of that date, 1808, was suspended as unconstitutional, and repealed before any titles were perfected under it, therefore the land being still unappropriated, was fairly open to the application of any citi- zen ; and the patentee in possession held against the certificate, in contravention of the rule adopted by the Commissioners, as stated by Judge Fell.
It has been shown that the warrant to Josiah Lockhart was issued May 17, 1785 ; patented April 3, 1786 ; and of course surveyed between those periods, prior to the Confirming Law, March 28, 1787, a date adopted for a discrimination ; and therefore, although the decisions of the Commissioners of 1799 and the Supreme Court conflict, as in above case, as to later titles, it is clear that Lottery Warrant No. 1, even if it had been included within the provisions of the Act of 1799 and supplements, would, so far as in possession of its Pennsylvania owners at the passage of that law, have been protected under the opinions of both these au- thorities.
As to the date of that possession : the township of Old Ulster having been excluded by the provisions of 1787 and 1799, of course the Connecticut posses- sions therein took no sanction from those laws; but were without validity either in law or equity until the Act of March, 1810.7 Consequently, the possession of Welles and Carroll, obtained at law two years before the passage of the act last mentioned, is, in every legal and equitable respect, as valid as if it had been the actual and resident possession of Josiah Lockhart and assigns from the date of his warrant. See Daily vs. Avery ; 4 Sargeant and Rawle, 289.
Having shewn that in adjudicating between Connecticut claimants and Penn- sylvania owners in possession, the Commissioners under the law of 1799 and supplements, were bound to construe those laws in due respect to the vested rights of property, to the constitutional powers over those rights in cases of State necessity, and to the policy and intention of the Legislature in the exercise of that high power, it follows that they necessarily decided that the Legislature had neither the power nor the intention to remove Pennsylvania owners from pos- session. Thence it ensues that a similar construction must have attached to a similar act ; that the proviso of 1810 was merely declarative of pre-existing law, belonging constructively to the pre-existing system; and thence, that had the proviso been omitted, the construction of the act must have been the same.
But the meaning and intention of the Compromising Laws can be brought still closer home by recurrence to the wording, seriatim, of the acts themselves. For brevity, it is common to indicate the system by its leading act, that of 1799; but that leading act gives the Commissioners no power over any other lands than those released by the Pennsylvania owners. Section 5 provides, "that no patents "shall issue to affect any lands, the title whereof shall be in any person or per- "sons claiming under Pennsylvania, until such person or persons have conveyed "their title to the commonwealth." 3 Smith's Laws, 364. This leading act, re- quiring the consent and release of the Pennsylvania claimants, assists in defining the intention of subsequent acts. The supplement passed 6 April 1802, is the act which authorized the Commissioners to certify lands without the consent and release of Pennsylvania claimants; and directs that if any Pennsylvania claimant of such land, shall refuse or neglect to release the same, "such Pennsylvania "claimant shall not hereafter be entitled to recover the same by any action, in any "court whatever in this commonwealth, against the Connecticut claimant in whose
7 The Bedford and Ulster Act.
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"favor a certificate shall be granted;" but shall have liberty to sue the state for compensation. 3 Smith's Laws, 526.
There was no need of additional evidence as to the intention of these laws ; it is a truism that none ever questioned. By what authority, then, does this Report assert that the proviso of 1810 "is in direct hostility with all the previous acts passed on the subject"? The acts of 1799 and 1802 are the only "previous acts" that touch the subject in this feature. Where is the "direct hostility"?
It is impossible to attempt a parallel between the truth and that Report, without betraying that the latter is a line of continued deviation. Committees, we are told, are indivisible ; but it may not be a sin against parliamentary law, to re- member that in matters of outer life, one designing man may lead many confiding men through many variations.
HENRY WELLES' ACTION AS TO THE PROVISO.
Having proved a point that surely requires no demonstration, that the pro- viso was right in itself, it remains next to consider the agency of Henry Welles, as a member of the House, in the passage of that proviso.
It has been shewn that Henry Welles holds under the Pennsylvania title, on which possession was recovered upon judgment in ejectment, October, 1807, sev- eral months before the idea of an extension of the Compromising Law was started in the country, and two years before he was elected to the House. That the sub- ject and the petition was that of others, and introduced to the House by a preced- ing member ; that he remonstrated to Mr. Palmer, of the Senate, against its pas- sage in any such form as might disquiet Pennsylvania owners in possession ; that he was afterwards elected to the assembly, and charged with the duty to advocate the measure, selected in some degree for that purpose ; that he finally effected the passage of the bill, in accordance with previous acts belonging to the pre-existent system, except that the one declares in words that which previous acts tacitly, but not less clearly, imply, by their known object and intention.
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