Toward 1987: A "Pre-Constitutional" Law Case

William F. Swindler


The year 1783 was marked by two major events in the slowly coalescing constitutional shape of the United States. One was the final signing at Paris of the definitive treaty of peace, after more than a year of desultory negotiations which were finally approved by both Britain and the United States—and, somewhat reluctantly, by America's quondam ally, France. Now, finally, the thirteen independent states under the Articles of Confederation had an official status among "the powers of the earth"—such as it was—and could undertake to resume, in the states at least, the normal functions of government and law which had been suspended from July of 1776 or earlier.

For different states the period of suspension of normal operations had been one of various lengths. Virginia, for example, eventually declared a moratorium on certain proceedings, such as statutes of limitations affecting a number of types of legal actions, for a period beginning April 12, 1774 to September 3, 1783. The earlier date marked the closing of the last colonial legislative session by the last royal governor. The latter date was the date of the signing of the Treaty of Paris. For the national government, on the other hand, the treaty ratified the status of the United States as a government at least theoretically able to incur international treaty obligations, open formal diplomatic relations with other countries of the world, and generally to claim sovereign status in the family of nations. While its standing abroad might be questionable for another generation, its domestic or "municipal" authority, as the final arbiter of relations between states, now was settled. The Articles had set up a national government of sorts, and the treaty made it a recognized national entity with the final word on internal affairs.

This led to the other important event of 1783— actually the formal filing of a report on litigation which had taken place the previous fall—which was the final settlement of the "Wyoming Valley" dispute between the states of Connecticut and Pennsylvania. This, as it turned out, was to be the only "Constitutional" case pursued to final judgment under the Articles of Confederation, and before creation of a national court system under Article III of the 1787 Constitution. By authority of Article IX under the Confederation, the Continental Congress was empowered to create two judicial bodies—a Special Court of Appeals which heard admiralty cases from the various state' courts, and ad hoc "legislative courts" to settle land and border disputes between states.

The judges who met at Trenton, New Jersey in the fall of 1782 to hear the "Wyoming Valley" dispute more nearly resembled a border settlement commission. Of the five members of the tribunal, only two had substantial professional credentials—David Brearly, chief justice of New Jersey, and Cyrus Griffin of Virginia, a member of the appeals court and the first judge-to-be of the United States District Court for Virginia six years later. William Whipple, of New Hampshire, although just appointed to his state's high court, seems to have been a non-lawyer; and Welcome Arnold, of Rhode Island, certainly was. The fifth member of the tribunal was William C. Houston of New Jersey, who had been admitted to the bar in 1781 after a decade as professor of mathematics at the College of New Jersey (now Princeton).

Yet this disparate group had a fundamental constitutional question before it. The Wyoming Valley was a region in northeastern Pennsylvania, just under the New York border (see map), between the Susquehannah and Lackawanna Rivers, claimed by both Connecticut and Pennsylvania under their respective colonial charters. Such conflicting grants were not unusual in a time of imperfect knowledge in England of the areas they were dealing with in the New World. In any event, Connecticut's 1661 charter was obviously senior, and when the lavish grants to the Duke of York cut through the 1662 territory, it left the main government of Connecticut cut off from two important tracts which were to figure in its later history.

One of these was in western New York and northernmost Pennsylvania—the area which historically became the "Western Reserve," a "resettlement" area which the colony, in the course of its cession of its western lands, had kept for the victims of the "firelands," burnt-out coastal regions attacked by British warships in the course of the Revolution. The other was the Wyoming Valley which was claimed by Connecticut not only by right of charter but early settlement. The colony even went so far as to organize this as a county which was entitled to representation in the assembly in Hartford.

Pennsylvania's counterclaims had not been pursued with particular vigor up to the time of independence, and it was actually the events of the war which brought matters to a head. In 1778 a combined force of Indians and Tories had launched a campaign against the settlements in the Wyoming Valley, coming down from the major areas held by the Six Nations in the central part of New York, the result being a combined massacre and expulsion of the settlers from virtually the entire region. The Continental Congress perceived that the threat could only be removed by counter-attacks on the Six Nations themselves, and in due course these areas were destroyed and the Indian power broken.

As survivors undertook to return to the area from which they had been driven, Pennsylvania authorities decided that the question of territoriality had to be settled at last, and accordingly brought a formal petition to Congress to establish a special agency to adjudicate the matter. Congress issued a commission in August 1782 empowering the special agency to convene, hear and determine the matter, and on November 12 Justice Isaac Smith of New Jersey administered the oath to Brearly and Houston, the first two commissioners to appear. A week later, all the commissioners had made their way to Trenton and been sworn, while the phalanx of lawyers for the two states also assembled with their credentials.

For Connecticut, the three attorneys were Eliphalet Dyer, William Samuel Johnson and Jesse Root. Pennsylvania was represented by four lawyers — William Bradford, Jr., Joseph Reed, Jonathon D. Sergeant and James Wilson, the state solicitor, Henry Osborne, was also present. Among these several well-known attorneys, the future Supreme Court Justice James Wilson was probably the most eminent.

The case began with the usual procedural maneuvers, Connecticut's counsel challenging the jurisdiction of the Trenton tribunal and Pennsylvania filing a rebuttal. Connecticut then submitted a statement that its best evidence, an "original deed from the Indians... obtained from their chiefs and sachems at their council fire in Onandaga" in 1763, was "now in England, left there before the commencement of the present unhappy war." Insofar as this statement laid the ground for a motion to postpone the trial of the issue, Pennsylvania asked the court for a rule to continue the trial forthwith.

The case in chief, of course, consisted of the original charters and subsequent documentary evidence establishing the sovereignty of the particular colony over the area. Connecticut began with the original 1620 charter of Massachusetts Bay, from which emanated subsequent grants in 1629 and 1631 creating the settlements of New Haven and Hartford, leading eventually to the separate charter of April 23, 1662 to "the company and society of the colony of Connecticut." Trouble began two years later, however, when Charles II granted to his brother, the Duke of York and future James II, an area (which Charles intended to wrest from the Dutch) extending in a corridor between the Connecticut and Hudson Rivers (including Long Island and its Connecticut settlements) to the upper reaches of Chesapeake Bay.

Following a decade in which the area changed hands several times, it finally went to England by treaty in 1674, with postwar amendments to the charter of New York and "the Jerseys" which extended Connecticut's western border with New York but remained silent on the lands beyond the upper Delaware river, which Connecticut regarded as part of its original grant. Typical charter language of the time began most of these grants at "the western shores of the Atlantic" (i.e., west from England) and continued them to "the South seas," a vague reference to some large body of water which eventually came to be treated as the Mississippi.

In 1681 Charles granted to William Penn a territory extending from the Delaware river "westward five degrees in longitude," the northern border of which was to be the forty-third degree of latitude and the southern beginning at the "twelve-mile arc" around Newcastle, Delaware, and proceeding along the northern border of Maryland. This language had already created one problem, which was solved by the famous Mason-Dixon survey authorized by Lords Penn and Calvert in 1765. As for the northern area, counsel for Pennsylvania now offered documents of grants to the "right of soil" made between the proprietors and various Indian tribes in 1736, added to the fact that its 1681 charter contained a map indicating clearly that the grant to Penn extended northward "to the end of the forty—second degree.

Connecticut's rejoinder declared that in 1753, "having located and settled all their lands within their patent east of New York, and being in a condition to extend their settlements on the other part of their patent aforesaid, to the westward of the Delaware river," the Susquehannah Company was chartered as a land development agency—typical of a number of such projects of the time—and the following year purchased the "right of soil" from the Indians claiming title to the region. Connecticut's counsel apparently were unable to produce original documents for 1754 and had already admitted that those of 1763 were not obtainable, and offered instead to submit corroborating depositions.

The Trenton tribunal thereupon put the two states to their proofs, and heard testimony for the rest of the year. On December 30, 1782 the five commissioners gave a unanimous judgment for Pennsylvania. While they gave no reasons for their finding, it is pretty clear, first, that the 1664 New York charter and the 1681 Pennsylvania charter, by failing to reserve any Connecticut interests, extinguished the latter sub silentio. The additional fact that the Indian agreement of 1736, apparently touching the territory in question, antedated the 1754 and 1763 purchases of Connecticut and its land company, settled the matter.

The jockeying for strategic advantage—including the creating of a county of Westmoreland representing the Wyoming Valley area in the Connecticut legislature, in 1776—was finally ended with this judgment. But more than five thousand persons held titles to lands issued by the Susquehannah Company, and it was not until 1799 that Pennsylvania enacted an "act of compromise" confirming titles in seventeen erstwhile Connecticut townships. Upon payment of norminal fees to Pennsylvania, the problem was finally extinguished, and the only complete "constitutional" case before the Constitution itself was finally closed.