USA > Pennsylvania > Bradford County > Athens > A history of old Tioga Point and early Athens, Pennsylvania > Part 84
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Now wherein has Henry Welles been guilty of any wrong in this? In what part of this transaction has he traversed in the slightest degree the boundaries of propriety ? How else should he have done? In what other manner would any member of this present committee have acted in such circumstances? Is there any member here who in like case would have refused to advocate the Bedford and Ulster bill in behalf of his constituents in possession-more especially when, so far as this interest extended, he was elected for that purpose, and because he was a Pennsylvania owner-and still more especially when all the Pennsylvania claimants not in possession, were willing that the act should pass? On the other hand, is there any member here, who having all right and title, in law, equity and conscience, would in like case, with more than Quixotic chivalry, have given up the sixty five acres of the very core of his farm, and thus voluntarily have de- stroyed the value of his estate ?
That Henry Welles held lands under recovery in ejectment, which, if not so recovered, would have been subject to the operation of this Act, was no secret in the House. Dorrance and Graham of Luzerne were well acquainted with the fact. Mr. Palmer of the Senate had been expressly notified of it. True, it was not set forth in the preamble, neither was it spread upon the journals-until last session ! neither is there a crowd of witnesses here to prove the notorieties of six- teen years ago. But what have notorieties, or what have concealments, to do with vested and inalienable rights?
The plea of state necessity, under which the Law of 1799, or rather of its supplement of 1802, was held to be constitutional, is a plea of expediency; binding upon the discretion of government, and not upon the consciences of individuals. The benefit obtained enures to the government, and not to the individuals in- juriously affected; therefore all such acts, though borne out by a sufficient con- stitutional necessity, are as respects the owners who are thus divested, violences which they may rightfully resist, so far as the laws enable. But when an act of this character passes the legislative body, unsanctioned by the plea of state neces- sity, and without the assent of the parties, it is an unconstitutional usurpation ; and not only may be, but ought to be resisted by every member of community. At the date of 1799, it is admitted that an adequate public necessity did exist; but
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at the date of 1810, no pretence of such necessity existed. At neither time, at no time, has it ever been pretended, that there did or could exist any public necessity for turning out Pennsylvania owners, and putting Connecticut claimants in.
So that at neither of these periods could these acts be brought to bear against Pennsylvania owners in possession ; and at the latter period of 1810, no such con- stitutional reason existed to justify the divesture of Pennsylvania title, even when not in possession.
The Bedford and Ulster Act could not, then, have been constitutionally passed ; without [providing for] the assent of all the Pennsylvania owners. Those - not in possession did assent, and received their compensation. Those in posses- sion did not assent; but remonstrated through the letter of Henry Welles to Mr. Palmer, in behalf of Mr. Carroll. Mr. Hopkinson and himself. Was there any impropriety in that remonstrance? Was there any wrong in their claiming of this House the protection of their rights under the patent and laws of Pennsyl- vania? Surely not ! but on the contrary, if any bill had been in passage purport- ing to so invade the tenure of Henry Welles, or any other citizen in like circum- stances, it would have been his duty, as a member not only to remonstrate against such invasion, but also to enter his protest against it on the journals of the House.
All this is undeniable. It follows then, that the proviso of 1810, instead of being an unjust and designing innovation, "in direct hostility to all the previous acts passed on the subject," was a natural branch of the Compromising system ; and its express introduction in that bill so unquestionably proper, as to have needed for its justification but one moment's impartial thought ; and therefore that the agency of Henry Welles in passing that act, and that proviso, however it may have been impeached, aspersed and vilified on the floor below, was as perfectly correct as the conduct of any member of this House ever was, on any occasion, or ever can be.
THE RIGHT OF CERTIFICATE UNDER THE ACT OF 1810.
When the Commissioners under the Bedford and Ulster act met at Tioga Point in 1810. Mrs. Mathewson, notwithstanding Mr. Carroll's recovery, and not- withstanding her own deed, applied to the Board for a certificate. Henry Welles, for Mr. Carroll and himself, producing title under Pennsylvania, and proving the marshal's delivery, her application was precluded.
The deed of Mr. Carroll for the house and lot had been previously offered her, in June or July 1809; but she declined it, saying (so asserts Henry Welles) that if she took certificate under the expected act, perhaps Mr. Carroll would con- sider her, and give her some money compensation instead of the deed. That this deed was executed by Mr. Carroll, proved by a Mr. Davis in Philadelphia, re- ceived by Henry Welles in an envelope still producible, and subsequently returned to Mr. Carroll, or Mr. Caton, his son-in-law and transactor, could be made out if necessary, by letters, envelopes, postmarks, and other moral evidence; but no legal proof of its actual tendry to Mrs. Mathewson. As to the delay mentioned in the Report, which appears to have been about one year, it is nothing very extraordi- nary with men of such concerns as Charles Carroll, Richard Caton and Robert Goodloe Harper.
But the committee who drew that Report could not but have been aware, that it was entirely immaterial whether any such deed had ever been made and tendered or not; for it was in evidence that the house and lot were expressly left to her, when the writ of possession was executed; and this was in itself a release of title, in consequence of which she and the heirs, being left in occupancy, thereby became entitled to certificate under the Act of 1810, and still possess it ; so that the consideration of her deed, executed 8th October, 1807, has been strictly maintained; and that therefore by her deed and possession delivered, Henry Welles became owner of all that kind of right called the Connecticut title, to the lands in question ; if any certificate were issuable thereon.
Owner of the Connecticut title exclusive of the heirs of Mathewson, for the following clear legal reasons. It is settled in Pennsylvania, as has been heretofore recited, that the Connecticut title, unconfirmed, is of No validity either in law or equity. Consequently. it is no such title as can sustain a descent; and the trans- fer to Henry Welles, by her deed and delivery of possession, fully entitled him to
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the certificate, after the right thereto became "confirmed" by Act of 1810; if his condition therein made that issue desirable.
Furthermore : even if the title of Elisha Mathewson in these lands had been such as could sustain a descent under our laws of inheritance, there is still another ground on which the heirs would have been excluded by their mother's and executor's sale, which is this : the title under which they claim being precarious at best, and in immediate danger from the ejectment of Charles Carroll, therefore a sale made by their natural guardian and father's executors, having for its object the security of a part by release of the remainder, yielded a sufficient and valuable consideration directly to their benefit ; and of course was good against them. This has long since been decided in cases of settlement rights, where the title could scarcely have been considered insecure, and where it was not immediately en- dangered. See Mobley vs. Oeker, 3 Yeates, 200, and Clark vs. Hackethorn, 269. So that on this just and legal principle, the rights of the heirs, if they had been en- titled in any degree, would have passed to Henry Welles by the deed of their mother, as completely as they could themselves have passed it had they been of age.
Waiving then the Constitution, the intention and construction of the Com- promising Laws: waiving all the vested rights of a grantee under Pennsylvania, in quiet possession : still it follows, that the Mathewsons must have been excluded from the benefit of the Act of 1810. by the fair and perfected sale of the premises, and delivery done, by Elizabeth Mathewson herself, having all legal authority : and that Henry Welles by that sale became exclusive owner under Connecticut. and would have been entitled to the certificate, if any could have legally been granted.
CONSTITUTIONALITY OF BILL NO. 471, 1824-5.
Many members of the last session were led to believe, (and it is said that one gentleman present entertains the same idea) that the act prayed for in this case, as shaped in bill passed No. 471, would leave the parties on fair and equal ground to have their equitable rights determined at law. But such is not the truth! If this pass, it is both legislative and judicial : it is a taking by arbitrary power; and no question of merits, no plea of right and wrong, can ever be heard against it. Henry Welles could have no chance to prove the fairness of Charles Carroll's re- covery. Neither will he stand in the same situation as if under the Acts of 1799 and 1802 ; nor as he would have stood if that of 1810 had passed without the proviso. Bill No. 471 virtually declares that its intention is to deprive Henry Welles of his constitutional rights. Under the Act of 1799 and supplements, Pennsylvania owners in possession were protected by the rule of construction that no act in- tends the violation of those rights. An act like this, No. 471, enacts that those rights shall be violated in this case, and that such is the intention.
Of all the Compromising laws ever passed in Pennsylvania, no one has ever yet been held, or pretended to have a like meaning, or effect ; and surely before this Committee recommends, or the House proceeds upon, a step that cannot be re- tracted, they will deliberately consider its character; and look around and see, whether any such despotic act has ever been committed by any American legis- lature :- whether any such law has ever been passed by any deliberative body upon earth.
The only constitutional warrant, under which the legislature of Pennsylvania can assume to divest the rights of landed property, is that which has been cited from Article 1, Sec. 13: "Each House * * * shall have all the powers necessary "for a branch of the Legislature of a free state."
Now if it Is necessary to this free state of Pennsylvania, to turn Henry Welles out of his possessions, and put Mathewson in-if it is necessary for this free state so to do, then the act prayed for, if passed, may be constitutional :- otherwise not.
The only State necessity which, up to this day, has been recognized as ade- quate in Pennsylvania, is, the avoidance of civil war.
Language has rarely been delivered from the bench more decided than will be found in the following extracts from reports under the Confirming and Com- promising laws, in relation to this branch of legislative power :
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Says Judge Yeates, in Enslin vs. Bowman, "cases may undoubtedly occur, "wherein, however sacred the rights of property may be deemed. it would be "necessary for the common welfare that they should bend to the public interests "in matters of great national concern." 6 Binney, 472.
Judge Patterson of the United States Court, in Vanhorn vs. Dorrance, as follows: "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. That the Legislature, on certain emergencies, "had authority to exercise this high power, has been urged from the nature of the "social compact, and from the words of the constitution; which says, the House "of Representatives shall have all other powers necessary for the legislature of a "free state or commonwealth; but they shall have no power to add to, alter, abol- "ish, or infringe any part of this constitution. * * The despotic power, as it is "aptly called by some writers, of taking private property when STATE NECESSITY "REQUIRES, exists in every government ; the existence of such power is necessary : "-government could not subsist without it, and if this be the case, it cannot be "lodged any where with so much safety as with the Legislature. The presumption "is that they will not call it into exercise except in URGENT CASES, or cases of the "first necessity .- It is, however, difficult to form a case, in which the necessity of "a state CAN be of such a nature as to authorize, or excuse, the seizing of landed "property belonging to ONE CITIZEN, and giving it to ANOTHER CITIZEN. It is imma- "terial to the state, in which of its citizens the land is vested : but it is of primary "importance, that, when vested, it should be secured, and the proprietor protected "in the enjoyment of it. The Constitution encircles and renders it an holy thing. * * The Constitution expressly declares, that the right of acquiring, possess- "ing. and protecting property is natural, inherent and unalienable. It is a right, "not ex gratia from the legislature, but er debito from the constitution. It is "sacred :- for it is further declared, that the Legislature shall have no power to "add to, alter, abolish, or infringe any part of the Constitution. The Constitution "is the origin and measure of legislative authority. It says to legislators, thus "far shall ye go, and no further. * * Innovation is dangerous. One encroachment "leads to another ; precedent gives birth to precedent ; what has been done may "be done again; thus radical principles are generally broken in upon, and the "Constitution eventually destroyed. Where is the security, where the inviolability "of property, if the legislature, by a private act, affecting particular persons only, "can take land from one citizen, who acquired it legally, and vest it in another?" Vanhorne vs. Dorrance, 2 Dallas, 311.
This, then, is the judicial exposition of the powers committed by that Charter, under which the Legislature of Pennsylvania has for seven years been urged to invade the freehold of Henry Welles.
Is it the malice of a party leader? or the spur of county politics? or this an- nual. this perennial teasing, that is to constitute a State necessity ?
Where else is the deep concern of "Common Welfare" which now demands the exercise of this "extraordinary power ;" a power only once assumed in Penn- sylvania, and then only to avert civil war? Where else is the giant necessity that is to move the constitutional defences built up around "the first interests of the social compact"?
Where is the "great occasion." the "public exigence," the "state necessity," the "national concern"? Are all THESE to be substituted by impulses that avoid publicity, influences too revolting to be named ?
Without this state necessity, the Legislature has not the power. No man will deny this position. No man will aver this state necessity exists. Can then this committee sign a report, or return a bill, leading to a result which no member of this House can vote for, on any stage, without arraying his vote and oath in direct opposition to each other ?
But it is under no pretence of state necessity that the exercise of this power, that exists only in cases of state necessity, is required. It has been attempted to apply it arbitrarily. to the satisfaction of a pretended claim of equity disputed be- tween two individuals; and that too in constitutional violation of the contract executed, through which Henry Welles holds this land under patent from the Commonwealth.
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All claims of right and equity which one citizen may pretend to have against another, belong to the examination and decision of the judicial department : where the parties can be heard by themselves or counsel, cross examine witnesses, be tried by jury, under rules of evidence, and have justice meted to them, ac- cording to general laws. Can the legislative branch cut short this whole system of rights and remedies? Are there not high walls HERE which the Legislature of Pennsylvania is required to trample down?
The Constitution of the United States !- both the monument and the fortress of human rights, toward which the whole civilized world looks up with reverence ! Art. I, Sec. IO: "No state shall pass any law impairing the obligation of "Contracts.'
The Constitution of Pennsylvania! the charter which creates the Legislature ; creates it for the protection, and not for the violation of individual rights :
Art. 5, Sec. I: "The judicial power of this Commonwealth shall be vested "in the courts."
Art. 5, Sec. 6: "The Legislature shall vest in the said courts such other "powers to grant relief in equity as shall be found necessary."
And by Article 9, the Declaration of Rights, expressly framed for the pro- tection of the general, great, and essential principles of individual liberty, against the abuse of government powers, it is declared-
By Sec. I, That "all men have certain inherent and indefeasible rights, "among which are those of * * * acquiring, possessing and protecting property and "reputation." ;-
Section 6. That "trial by jury shall be as heretofore, and the right thereof "remain inviolate" ;-
Section 9. Even the criminal "hath a right to be heard by himself and "counsel ; to have a speedy public trial, by an impartial jury; and cannot be de- "prived of life, liberty, or property, unless by the judgment of his peers, or the "law of the land":
Section II. "All courts shall be open, and every man, for an injury done "him in his lands, goods, person or reputation, shall have remedy by the due "course of law, and right and justice administered, without sale, denial, or delay."
Section 17. "No law impairing contracts shall be made."
And finally, by Section 26; "To guard against transgressions of the high "powers which we have delegated, WE DECLARE, That every thing in this article is "excepted out of the general powers of government, and shall forever remain "inviolate."
What relation is there between all these constitutional provisions and the case before you?
Why, here is a pretended claim of right on trial for lands, not before a judicial tribunal of law or equity, but before a committee of seven members of the Legislature, which by rule must be selected from those friendly to the objects of petition ; and it is before this tribunal alone that the remonstrant can be heard by himself or counsel! No rules of evidence regulate the testimony; no judge presides to fix the Law ; no jury passes upon the facts ; no rights of challenge-no new trial-no arrest of judgment-no privilege of triple verdict-no writ of error, and no appeal, protects the party : but this one reluctant hearing before a commit- tee of seven, deemed almost impertinent and intrusive; this hearing of an armed car, is all he receives in substitution of his long train of constitutional rights,- rights that have been so solemnly declared "inviolate forever."
No longer ago than at the last session, a bill traversing all these paramount authorities passed the House of Representatives; and as has been said by the pe- titioner, would have passed the Senate also, if time had permitted. This proves both strength and determination; but if it had so passed, before what court, before what bench, from Chief Justice, to justice of the peace, would it have found respect throughout the whole judiciary?
Under such warning, it is not for Henry Welles to surrender his defences. He protests, as Joseph Hopkinson, and as Richard Caton for Charles Carroll have
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already done, against the jurisdiction of this House ; and against any such usurpa- tion of authority, he will carry his cause to the highest tribunals.
On the other hand he does not, by any constitutional plea, seek to smother or evade this extraordinary enquiry into his dealing in the case; but challenges the scrutiny. The testimony is before you. What foundation is there for the in- flamed descriptions that have been propagated here, as, to the oppression, injustice and hardship suffered? The Mathewsons were not poor; for as seen by the will, they inherited, and still own, seven hundred and twenty acres of first rate land in Palmyra. through which the great canal now runs, in the very garden of New York. They were a widow and children, to be sure; but should Henry Welles, therefore, have left them to enjoy his property for sixteen years more, in addi- tion to the twenty of his father's preceding, and then ask them what should be done about it? They were not defenceless; but surrounded by the leaders of the Susquehanna Company, and a population ripe for violence.
They were on lands excluded from the Confirming and Compromising laws; a possession tortious, as to the real owners and rebellious as to the Common- wealth ; harvesting the Indian clearings for twenty years without right, on lots interspersed through an extensive flooded interval, opening to all the mischiefs of an interior and inimical possession. All the other [Connecticut] holders below the village were bought out by the owners with the view of having one useful farm for their twenty five thousand dollars; but these rejected all offers of pur- chase with defiance. The owner was entitled to recover; the possessors deserved an ejectment.
At a period when this Commonwealth herself was almost at actual war with this same population, with what face can she now reproach Charles Carroll, or Henry Welles, for having recovered at that very period, under her own title, and her own laws, this dearly bought land from such "intruders"; and that too with circumstances of liberality scarce ever known in cases of ejectment?
What would the Legislature of Pennsylvania of that day have done in like case? The supplementary Intrusion Law, passed February 16, 1801 (Section 6) provides that in all cases of ejectment against defendants holding under Con- necticut title, the plaintiff shall RECOVER DAMAGES for the MESNE PROFITS of the land, down to the time of entering judgment! 3 Smith's Laws, 459.
The Legislature of Pennsylvania, then, instead of trying to purchase out, instead of giving house and lot, and further use of lands, release of crops, and exemption from costs, and a final donation,-the Legislature of Pennsylvania, then, would have taken house and lot, and crops and costs; and instead of dona- tion, would have taken verdict of damages for TWENTY YEARS MESNE PROFITS, which no jury could have laid at less than one thousand dollars !
This, then, was the judgment of Pennsylvania herself, by the lips of her Legislature of that day. This was the case they wanted to defend! This was the case the re-opening of which Henry Welles was so "anxious to prevent"; and this the "chance of defence," on the pretended value of which is predicated a Re- port that blackens the journals of Pennsylvania.
It is not within these walls that anything should be spoken against this eject- ment ; seeing that the treatment which the defendant received from the hand of Henry Welles was so far different from the award of this House itself !
But where is the precedent of an act arbitrarily wresting from any owner lands once legally and rightfully recovered, even where the circumstances have been most severe? Hundreds of ejectments have been carried into strict effect in Pennsylvania. All ages and sexes have been turned out, and costs collected of their personal property ; but not one instance is there upon record in which this Legislature has enacted restitution. Many ejectments have prevailed against conscientious equity ; but what loser has ever been reinstated? Many have been the instances in which both parties have innocently paid the Commonwealth for the same lands, and upon eviction of the later title from home and improvements, does the Commonwealth redress this real grievance? No: she does not even restore the moneys to the losing purchaser.
So far as this gratuity of the state, for peace, was a matter of expediency, the non-recipients have no right to murmur : so far as it was a matter of grace, it was surely to be regretted that this family, being as proper objects as others,
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could not have received a parity of benefits. But out of this grows no manner of claim on the property of Henry Welles.
If the heirs of Mathewson had on this ground applied for a donation from the state, to equal the sum the Pennsylvania owner would have recovered, had the land been certified, such application would have met with no remonstrance from Henry Welles : but appearing here with false pretences, that are an imposition on the House, it remains to be considered whether there is any more worthiness in these, than in the settlers occupying the residue of Athens township, or those of present Ulster, or those on Sugar Creek, Towanda, Wysox, Wyalusing, Tunk- hannock and Lackawanna creeks, and many other settlements of date as early as those within the lines called Old Ulster.
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