History of Luzerne County, Pennsylvania, with biographical selections, Part 19

Author: Bradsby, H. C. (Henry C.)
Publication date: 1893
Publisher: Chicago : S. B. Nelson
Number of Pages: 1532

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* They or any five of said commissioners " shall be a court with power, etc., * * this power to determine whenever a form of internal government shall be established in that country."

Gen. Ethan Allen was in the scheme, and actually appeared at Wyoming, in regimentals and cocked hat, with the Green Mountain boys, fresh from their victory over New York, in reserve, and in his honor was laid off Allensburg township, along the upper Wyalusing creek. This was a large grant to Ethan Allen. The purpose was to erect the Connecticut claim in Pennsylvania into a new State, and the action was as public and as bold as that of the Declaration of Independence, by brave and desperate men who stood at bay.

They issued "half-share " rights in great numbers, and new faces, strangers to the "old settlers," began swarming into the valley. The old-time residents had no sympathy with all this. They knew it prolonged the unhappy situation, and depre- cated its effects. As a witness in Vanhorne vs Dorrance expressed it: "The half- share men and the old settlers were a distinct people, and as much opposed to each other as to Pennsylvanians." On December 27, 1786, an act was passed providing for the election of representatives, justices of the peace; etc., in Luzerne county. Timothy Pickering, Zebulon Butler and John Franklin were appointed in the act to notify the electors, take oaths of allegiance, etc. Franklin, as we have seen, had other views, and refused to act. Pickering had come as the special representative of the government of Pennsylvania. He was politic, and held to his definite pur- pose wisely. Col. Butler wished repose for his neighbors and himself. Col. Pick- ering, as the result of a previous visit (unofficial) to this region, had reported to the State authorities "that the inhabitants expressed a willingness to submit to the

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government of Pennsylvania provided they could have their lands confirmed to them."

He then consulted eminent legal authority as to the right of the State to cede the lande to the Connecticut people, and, thereupon, "he undertook the laborious, the difficult, and, in the minds of many, the hopeless task of conciliating the minde of the Wyoming people. With his utmost efforts, during a whole month's diligent application, he barely succeeded, and solely by the expectations he persuaded them to entertain that they be confirmed in their possessions."

With these assurances, the great majority of the people were for submission. Three classes were opposed. A few, thoroughly imbued with the absolute rights of their case, filled with the glowing traditions of their struggles, wanted their posses- sions confirmed first, and submission afterward. Pennsylvania claimants of course resisted; euch of the Susquehanna company's grantees as were outside the lines of "the seventeen townships," and the new influx of "half-share men."

Says Miner: "And now, for the first time, was presented the spectacle, equally gratifying to foes and painful to friends, of open and decided hostility among the Wyoming people. Whatever difference of opinion may exist in respect to the justice of their claims, no liberal mind could have traced their arduous course through toil and privation, through suffering and oppression, through civil and foreign war, and observed the fortitude, fellowship and harmony among themselves that had pre- vailed, without a feeling of admiration for rare and generous virtues so signally dis- played. In an equal degree was the mortification at the spectacle now presented. It was no longer 'Pennymite and Yankee,' but the 'old settlers' against 'the wild Yankees' or 'half-share men.' "

The election went forward. John Franklin was chosen the member of assem- bly; Nathan Denison, member of the supreme executive council, and Lord Butler, high sheriff. Thus the county of Luzerne was fully organized.

Forthwith, a long petition was sent to the legislature then in session, setting forth that "seventeen townships, five miles square, had been located by the Connecticut settlers before the decree of Trenton," etc., and praying that " they might be con- firmed in them."

On March 27, 1787, " an act for ascertaining and confirming to certain persons, called Connecticut claimants, the lands by them claimed within the county of Luzerne, and for other purposes therein mentioned," was passed.

The preamble is in the words: "Whereas, before the determination of the claim of Connecticut, a number of its inhabitants, with their associates, settled upon and improved divers tracts of land, lying on and near the northeast branch of the river Susquehanna, and the waters thereof, and now within the county of Luzerne; and whereas, parte of the same lands have been claimed under titles derived from the late proprietaries of Pennsylvania, and those interfering claims have occasioned much contention, expense and bloodshed, and this assembly being desirous of put- ting an end to those evils by confirming such of the Connecticut claims as were acquired by actual settlers prior to the determination of said dispute, agreeably to a petition of a number of the said settlers, and by granting a just compensation to the Pennsylvania claimante," etc. It enacted:

That all the said rights or lots now lying within the county of Luzerne which were occu- pied or acquired by Connecticut claimants who were actually settlers there, at or before the determination of the claims of the State of Connecticut by the decree aforesaid (" the decree of Trenton"), and which rights or lots were particularly assigned to the said settlers prior to the said decree, agreeably to the regulations then in force among them, be and they are hereby confirmed to them and their heirs and assigns.

A great town meeting of the settlers was at once called to accept or reject this act. John Franklin prepared for a final rally against it. He literally preached against it from settlement to settlement, and from house to house. The assembly

Benja F. Slowly

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HISTORY OF LUZERNE COUNTY.

was held at Forty fort -- the first place the organized Connecticut settlers touched on their arrival, and, as it proved, the place where the last word was said. As might be supposed, the meeting was an excited one, and friend fell into wretched antagonism to friend. The act was accepted. Col. Jenkins asked, " What security have we, that if we comply, and put ourselves in your power, the State wouldn't repeal the law, and deal as treacherously as in the case of Armstrong?" His question proved to be a bitter prophecy.

It was at this juncture that Gen. Ethan Allen appeared on the scene. Pickering well knew his object. Pickering and Franklin each permitted no movement of the other to escape notice. The time for decisive action had come. Regarded as the head of the conspiracy, John Franklin was, on October 2, 1787, arrested for high treason, under a warrant issued by Chief Justice Mckean.

As Col. Pickering had personally assisted in the arrest of Col. Franklin, he deemed it prudent to flee to Philadelphia. While there, the people chose him as a delegate of Luzerne county to the convention called to ratify the constitution of the United States. This was a cordial testimony to their belief in ultimate justice at the hands of the State. Having discharged that duty, he returned to Luzerne county, of which he was prothonotary, clerk of the peace, clerk of the orphans' court, register of wills and recorder of deeds.

Franklin was cruelly treated, being ironed down in a cold, miserable dungeon, with insufficient food, no clothing except the light suit he had on when arrested, prohibited all communication with friends and all use of pen, ink and paper. Here he was kept nearly two years. His friends were desperately willing to do anything in their power to secure his release. June 26, 1788, they kidnapped Pickering, and proposed holding him as a hostage, or secure his influence for the release of Franklin. The kidnappers were pursued by Pickering's adherents, and were fired upon and serious wounds inflicted, when the pursuit was given over. This was the last time that blood was shed in the long and cruel contention. Pickering resolutely refused to yield to the demands of his captors, and was, after three weeks, released.

The arrest of Franklin and the acceptance by the people of the "confirming law," no doubt arrested the movement for the new State, which had already gone to the extent of completing its frame of government, and Oliver Wolcott had drafted its constitution and arranged that Maj. William Judd, of Farmington, Conn., should be governor and Col. Franklin lieutenant-governor.

The following brief sketch of the greatest leader of his time in the settlement of northern Pennsylvania, was written by Edward Herrick, of Athens:

"Col. John Franklin was born at Canaan, Litchfield county, Conn., September 26, 1749; removed to Wyoming in the spring of 1774; was many years an acting magistrate under Connecticut; captain of an independent company during the Revo- lutionary war, and, while attached to Sullivan's expedition against the Indians, was wounded in the attack on Chemung; member of the assembly of Connecticut in 1781; in October, 1787, he was arrested on a charge of treason against the State of Penn- sylvania for 'endeavoring to subvert the government, and to erect a new and inde- pendent State in the room and stead thereof;' was confined in Philadelphia nearly two years, a great part of the time heavily ironed, released on bail, and never brought to trial; in 1792 he was elected high sheriff of Luzerne county, while an indictment for treason was still hanging over him, was commissioned and served; in 1795, 1796, 1799, 1800, 1801, 1803, he was a member of assembly from Luzerne county; by the act of April 2, 1804, a small portion of Luzerne county, including his farm, was set off to Lycoming county; this act was avowedly for the purpose of keeping him out of the legislature, but in 1805 he again appeared in that body as a member from Lycoming; in 1789 he removed to his farm in Athens (then Luzerne, now Bedford county), which was laid out to him under Connecticut title, and there resided until his death, March 1, 1831. He never accepted nor recognized a Pennsylvania title, but after his death his heirs were required to purchase that title to his farm.

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HISTORY OF LUZERNE COUNTY.

In the settlement of northern Pennsylvania he was the recognized leader, making annual pilgrimages to New England, and bringing back hosts of industrious settlers whose descendants to this day preserve the virtuous character of their puritan ancestry; the people whom he brought thither, he never forsook. Their battles he fought in the courts, the assembly, in newspapers and pamphlets, and, if necessary, with his strong right arm, with a zeal, persistency and fidelity which deserved for the cause he thought to be right, a better fate.

The " confirming act " failed of execution. The reasons therefor are best given in Col. Pickering's own words: "The conditions expressed in the contract (he refers to the act) were complied with on the part of the Connecticut claimants, as far as it was practicable, and they were not bound to perform impossibilities; that eight months from the time of passing the act were allowed them to get information of it, and to present their claims; that the commissioners appointed to receive and exam- ine those claims were required to meet, for that purpose, in Luzerne county, in two months next after the passing of the act; that owing to successive resignations of Gen. Muhlenberg, Gen. Heister and Joseph Montgomery, Esq., those examinations did not commence till some time in August; that the seizure of John Franklin, on October 2, for his treasonable practices and designs, occasioned a sudden insurrec- tion of his adherents, of whom a very small number had any pretensions to land under the confirming law; that a few days before this arrest, Col. Balliot, one of the commissioners, had gone home to his family; that the subscriber, another of the commissioners, having personally, in the sight of the people, and with arms in his hands, assisted in securing Franklin and preventing any attempt to rescue him, and thus rendered himself obnoxious to the resentment and sudden vengeance of his partisans, was advised to retire to some secure place until their heat should subside; * * * that Col. William Montgomery, the other commissioner, seeing the storm gathering, immediately after Franklin was taken, had left the country to go

home; * * * that, the commissioners having thus separated, never again assembled, the time limited for the presentation of the Connecticut claims expiring 80 soon after as November 28 following; * * that, since this event (refer- *

ring to his own abduction), the county has remained in perfect quiet, the laws hav- ing as free and complete operation as in any other county." Then, arguing against the repeal of the act (this paper is written February 27, 1790): "That the people rely on the magnanimity and good faith of the State for the execution of the grants made to them by the confirming law; that in this expectation their indus- try is manifestly increased, they have begun to build more comfortable houses, to erect barns, and to extend the improvements on their lands; that a repeal of the law would check this rising industry, stop further improvements, revive ancient jealousies and animosities, and, perhaps, destroy the peace of the country. But, to say nothing of the attempt, as a breach of public faith, it may be worth while to inquire, 'whether such repeal be in its nature possible ?'" He goes on to treat the act as a " contract," or "treaty of peace."

The landholders, however, were not without power in the assembly. Using the conduct of the people as a cause or pretext, the act was suspended on March 29, 1788.

Act Repealed .- The seal to this final act was prepared by the suspension act, through no fault, be it remembered, on the part of the Connecticut claimants. The cross purposes that had arisen among the people themselves and the clamor of the landholders, brought the pressure that resulted in its repeal, April 1, 1790. This act of crowning bad faith was strongly resisted by many leading men of Pennsyl- vania, and among others some of the most noted lawyers of Philadelphia. Col. Jenkins' anxious, prophetic question had, indeed at last been answered. Still the people went on quietly and hopefully. Although the law was repealed, by it Penn- sylvania had distinctly recognized their rights in the case, and they settled in the

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conviction that somehow, at some time, their titles would be secured, and justice be done. The Susquehanna company proceeded actively with their operations. What is now Bradford county was at once laid out in townships, not continuous with any municipal subdivision of the State. By the year 1795, it is said that what is now the entire territory of the county was covered with the " claims " of these grantees, and at the same time by "warrants" from Pennsylvania on top of them.

Intrusion Law .-. April 17, 1795, a statute was passed enacting penalties and punishment against any person taking possession or intruding upon lands within the limits of Northampton, Northumberland or Luzerne counties, except by right obtained from the commonwealth.

Section 6 excepts any claims of persons claiming under "the confirming act" March 28, 1787, etc. The exception took "the seventeen townships" out of the effect of the act.

Under this act John Franklin and John Jenkins et al. were indicted at August sessions, 1801, in Luzerne county, and a special verdict found against them. It was removed by certiorari into the supreme court. There the act was held consti- tutional, but the defendants were discharged on other grounds. Commonwealth vs. Franklin et al., 4 Dallas, 255, 316. (The arguments of counsel as reported here are worthy of attention.)

It was held under this act "that the contract in this case (for the sale of lands) is illegal, being founded on a breach of the law, and, of consequence, a void con- tract," Mitchell vs. Smith, 1 Binney, 110. . This act is known as the "intrusion law," and has been subjected to much harsh criticism.

At length on April 21, 1795, the case of Vanhorn's lessee vs. Dorrance, 2 Dallas, 304, came on to be tried in the circuit court of Pennsylvania district. It was eject- ment for a little tract of about twelve acres. Selected as a test, the plaintiff natu- rally brought it on the best title which could be produced. Jared Ingersoll, Jona D. Sergeant and William Tilghman appeared for the plaintiffs, William Rawle, William Lewis and Joseph Thomas appeared for the defendants.

There was the fullest latitude in the testimony. All the charters and deeds hereinbefore referred to were put in evidence. The surveys and possessions of the tract in controversy were given. Col. Denison, for the defendant, detailed his entry upon the lot in 1770, and the incidents of the first Pennamite war. William Gallup gave in evidence an account of "the massacre." Col. Pickering narrated the events of the second Pennamite war, and of the reception of the confirming act. Robert Morris stated how, while a member of the assembly in 1786-7, he, at first, was in favor of calling out the militia, to expel the Yankees, but became an advocate for the act. The resolves of Connecticut-the records of the Susquehanna company -Smollett's history-acts of congress-the conduct of Patterson's and Armstrong's troops-Col. John Henry Lydius' deposition as to the execution of the famous Indian deed of July 11, 1754 (Mr. Tilghman hands this deed to court and jury, to show its suspicious face), were all put in evidence.

It was such a case as had never been tried in Europe or America.

It sufficiently appeared that the defendant had the earliest and a continued pos- session. The plaintiff claimed under a "warrant of survey," executed March 15, 1771.

Judge Patterson gave the jury binding instructions, and made short work of the Connecticut title.

1. "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 Con- necticut."

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HISTORY OF LUZERNE COUNTY.

The declaration that the land "does not lie within the charter bounds of Connecticut" is here, for the first time in the history of the controversy, judicially made. This was not decided by the court at Trenton-their decree was only that, at the date of it, the "jurisdiction " and "pre-emption" was in Pennsylvania as against Connecticut. This conclusion may have grown out of acts of "dereliction " or "estopel," since the date of charter, as well as out of a question of original "charter bounds."

Nor did it follow that " of course, no title could be derived from Connecticut." The judge does not advert to the facts from which the court at Trenton made the distinction between "jurisdiction " and " private right of soil "-that the defendant's title had been created under another soverign actually exercising jurisdiction-that the jurisdiction had been recognized by the United States in various ways, notably by accepting the troops from Wyoming, the Twenty- fourth Connecticut regiment, as part of the continental line-by accepting, absolutely, the cession of western territory from Connecticut under the same title the defendant held-that (by sufferance or otherwise) Pennsylvania had permitted the de facto government of Connecti- cut to be maintained at the situs of the land in dispute-and that in the origin and progress of the whole business there were such circumstanees as might give the defendant title, independ- ent of the will of Pennsylvania, previous to December 30, 1782.

2. The "Indian deed" was summarily dismissed as one "under which the Con- necticut settlers derive no title."

3. As to the title under the confirming act of 1787.

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. "The existence of such power is necessary; * * and if this be the case, it can not be 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 *

nation; *

the 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."

By the act, the Pennsylvania claimants are to present their claims to the "board of prop- erty," 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 vacant 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.

" It is contended that the legislature must judge of the necessity of interposing their des- potic authority. Be it so. Did there exist also a State necessity that the legislature or person solely appointed by them, must admeasure the compensation, or value of the lands seized and taken, and the validity of the title thereto? Did a third State necessity exist, that the proprie- tor must take land by way of equivalent for his land? And did a fourth State necessity exist, that the value of this land-equivalent must be adjusted by the board of property, without the consent of the party, or the interference of a jury? Alas! how necessity begets necessity. * * * 'Omnipotence in legislation is despotism.' 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."

In its application to the exact facts of the case of Vanhorne vs. Dorrance, this exposition is undoubtedly correct. The act applied to this state of facts was unconstitutional for the rea- son stated. But at the time the confirming law was passed, the State was proprietor of a large portion of the lands which the settlers held. The State had the power and the right to give away her vacant lands (vacant as to her titles), and it is the better opinion that this law was binding on the legislature in favor of an "actual settler, before the decree of Trenton," for whose land, at the date of the act, there has been issued no Pennsylvania title. In that respect the confirming law was " of no more avail than if it had never been made." Mr. Rawle, in his dissentient, goes further and says: " But in no instance can the power of repealing laws affect their obligations while in force, and, consequently, if the effect of the law while in force is permanent and perpetual upon the subjects to which it relates, a repeal, although it may destroy the law, can not diminish the effect it has already produced."

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HISTORY OF LUZERNE COUNTY.

Judge Patterson proceeds as to the mode of executing the law: "The estate of the Pennsylvania claimants was not divested on the passing of the act; it was not divested on presenting the claim on the part of the Connecticut settlers.

"The intention of the legislature was to vest in Connecticut claimants, of a particular description, a perfect estate to certain lands in the county of Luzerne; but then it was upon condition," which, of course, must be complied with.

If the legislature had authority to make the confirming act, they had also the authority to suspend it. * * Of course, there is an end of the business. The parties are placed on their original ground-they are restored to their pristine situa- tion.

This would not be accurate as to the class of Connecticut settlers just referred to. As to them, the grant by the act was a good one; for a sufficient consideration recited in the act, they had a right of title, which a subsequent legislature could not defeat. "The intention " the judge refers to had been executed, irrepealably as to them.

Judge Patterson did not regard the repeating act of April 1, 1790, bad, either as " an ex-post facto law," or as "a law impairing the obligation of a contract." Yet he says himself: "If the property to the lands in question had been vested in the State of Pennsylvania, then the legislature would have had the liberty and right of disposing of or granting them to whom they pleased, at any time and in any manner."

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History of Luzerne County, Pennsylvania, with biographical selections, Part 19

Author: Bradsby, H. C. (Henry C.) Publication date: 1893 Publisher: Chicago : S. B. Nelson Number of Pages: 1532

Author: Bradsby, H. C. (Henry C.)
Publication date: 1893
Publisher: Chicago : S. B. Nelson
Number of Pages: 1532