COM. OF PENNSYLVANIA v. FRANKLIN, 4 U.S. 255 (1802)

U.S. Supreme Court

COM. OF PENNSYLVANIA v. FRANKLIN, 4 U.S. 255 (1802)  4 U.S. 255 (Dall.)

The Commonwealth
v.
Franklin et al.

Supreme Court of Pennsylvania.

December Term, 1802

IN August Session 1801, of the Court of Quarter Sessions, the grand jury of Luzerne county presented the following indictment:

A certiorari issued at the instance of the defendants, to remove the indictment from the Quarter Sessions into the Circuit Court; directed, however, to the Judges of the Court of Common Pleas of the county; requiring the return of an indictment against the four persons named in the second count, for both offences; and actually returned by the associate Judges of the Common Pleas.

On the trial of the indictment, in the Circuit Court, as a session held at Wilkesbarre, Luzerne county, in Mau 1802, the Jury found a special verdict, in these terms:

It was agreed by the attorney-general, and the counsel for the defendants, that the leading question, whether the act of assembly was constitutional, or not, should be argued in the Supreme Court, before all the Judges. Notice was regularly given to the attorney of the defendants, that the case would be argued at the present term; but they did not appear, nor apply to counsel to appear for them, till the argument had actually commenced; and then, upon being refused a term's delay, their counsel ( Lewis) for want of preparation, declined entering into the discussion.

The case was opened, and argued, by Duncan, for the commonwealth. He traced the history of the Wyoming controversy, and referred to the decree of Trenton, (30th December 1782. 8 vol. Journ. Cong. 83, 4.) as finally terminating the question of boundary and jurisdiction, between the states of Pennsylvania and Connecticut, in favour of the former. From that period, every settler under a Connecticut title, must be regarded as a wilful trespasser. 2 Dall. Rep. 306. The ordinary process of the law, however, was not sufficient to restrain, or repel, the intrusions upon our territory; the legislative attention was imperiously drawn to the subject; and an act was passed, on the 11th of April 1795, to punish, as criminal offences, the taking possession of lands, or conspiring to convey, possess, or settle, them, in the counties of Northampton, Northumberland, or Luzerne, under any title not derived from Pennsylvania. 3 vol. State Laws, 703. Dall. edit. Upon the first and second sections of this act, the present indictment is founded; and a constitutional objection is raised, to quash the indictment, and defeat the beneficial operation of the act. This constitutional objection has, on other occasions, been branched into various points.

1st. The act has been said to be a violation of the first section of the ninth article of the state constitution, which declares, 'that all men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property and reputation, and of pursuing their own happiness.'-

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We answer: Property is a creature of society; and the right, in all its modifications, of acquisition, possession, and transfer, is regulated by positive law. 2 Bl. Com. 2. 3 Dall. Rep. 391. 394. From the very nature of the right of property, it is a perfect and exclusive right. The moment, that it was established, that the boundaries of Pennsylvania embraced the Wyoming district of country, the right of property became absolute and exclusive in the state; it would be absurd to suppose that Connecticut could, also, possess an exclusive right of property in the same land; and, yet, without such a supposition, by what principle of general law, what positive statute, what express, or implied, contract, can her grants confer a possessory, or usufructuary, interest in the land? No man could obtain from Connecticut a legitimate right to acquire, possess, and protect, property, which belonged to Pennsylvania; and the constitution could only intend to recognise and sanction a legitimate right, for those purposes.

2d. The act has been said to be a violation of the constitutions of the United States and of Pennsylvania, inasmuch as it creates a new offence; punishes, ex post facto, the exercise of a claim, legal in its origin; and impairs the obligation of contracts.

We answer: The intrusion, forcible or clandestine, upon the territory of a sovereign power, is an offence malum in se. It is an attack, not only upon the national property, but upon the national sovereignty. If done by individual citizens of another state, it is a high misdemeanor; and if done with the sanction of their government, it would be a just cause of war. But it is adding insult to outrage, when the citizens of the state itself, deny her right and authority, and parcel out her lands, under the authority of another government. The offence is flagrant, against every principle of political economy; and always has been held indictable. 2 Hawk. P. C. 210. 4 Bl. Com. 128. 32 H. 8. c. 9. Long, however, before the Connecticut claim began to operate, Pennsylvania (in 1729-30) had introduced a similar law, to prevent purchases of land from the Indians; to annual all contracts for that purpose; and to extend the English statutes of forcible entries and detainers, to the case of entry upon lands, not located, or surveyed, by some warrant, or order, from the proprietary. 1 State Laws, 248. Dall. edit. And even in the year 1700, ( which law was inforced by additional sanctions in 1769, Ibid. 503.) it had been declared, 'that if any person presume to buy any land of the natives, within the limits of this province and territories, without leave from the proprietary thereof, every such bargain, or purchase, shall be void, and of no effect.' Ibid. 5. Say, then, that the Connecticut title, originated in July 1754 (as it is alleged) in a purchase from the Indians: by a positive subsisting law, the purchase was void; it could afford no lawful ground for subsequent contracts; and, of course, no

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contract could, in this point of view, be impaired by the act against intrusions. Say, that the contract, is only to be regarded as between Connecticut and her grantees: the contract is neither annulled, nor impaired, if the subject of it belonged to Connecticut; but surely a contract with Connecticut could give no right to enter upon lands that belonged to Pennsylvania. The obligation of the contract lies exclusively upon Connecticut; and Pennsylvania does not, in any degree, impair it, when she merely says, that it shall not be forcibly transferred to her. If, therefore, Pennsylvania had a right to legislate for the protection of her property, for the vindication of her sovereignty, is there in the manner of legislating, any violation of a constitutional, or established, principle of jurisprudence? No: the offence is defined, and the punishment prescribed, not ex post facto, in reference to past intrusions and conspiracies; but expressly contemplating those which shall occur, after the enacting of the law.

3d. The act has been said to be a violation of the state constitution ( art. 9.s. 1.) by destroying an equality of rights; inasmuch as its provisions do not apply to the whole state, but to a particular district, composed of three counties.

We answer. The grievance is local, and the remedy ought, therefore, to be locally applied. The usurpation and intrusion prevailed only in the counties of Northampton, Northumberland, and Luzerne; and the proceeding against the intruders by eviction and restitution, is not a novelty in our law. In criminal cases, the award of restitution always follows a conviction; and in cases of forcible entry and detainer (when, too, the public dignity is not involved) restitution is the appropriate execution of the judgment, in favour of a prosecutor.

4th. The act has been said to be a violation of the constitution, because it destroys, or suspends, the right of entry.

We answer. It cannot be seriously supported, as a legal proposition, that it is unconstitutional to deny a right of entry on lands in one state, under an authority derived from the government of another state. Even as to estates derived from herself, or as to estates belonging to her citizens, the state may, and positively does, by an act of limitation, destroy the right of entry. 2 State Laws, 281, 2. Dall. edit. But the act of assembly, in discussion, if fairly construed, does not affect a right of entry, to prevent the bar of the act of limitation, or to seal a lease, for the purposes of an ejectment: but only an entry for the purpose of intruding and settling upon the lands, in pursuance of the spurious title of Connecticut.

5th. The act has been said to be a violation of the state constitution, because it exercises a power, in its nature judicial, and not legislative.

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We answer. The act neither undertakes to investigate facts, nor to pronounce a judgment. It prohibits the doing of certain acts; and if the acts are done, it leaves to the Courts of justice, the exclusive province of trying and deciding upon the case.

6th. The act is said to be a violation of the second section of the third article of the constitution of the United States, so far as it provides, that the judicial power shall extend to controversies between citizens of the same state claiming lands under grants of different states.

We answer. The Federal Courts have no criminal jurisdiction, except in the cases expressly authorised by the constitution and laws of the United States; and the present case, considered as a criminal one, is clearly not included in the delegated authority of the constitution or laws. Considered as a civil case, it is necessary, for the claim of federal cognizance, to show that Connecticut had actually issued grants, for the lands granted by Pennsylvania, which has never yet been pretended. For, the 9th article of the confederation had taken cognizance of 'all controversies, concerning the private right of soil, claimed under different grants of two, or more states, whose jurisdiction, as they may respect such lands and the states, which passed such grants, are adjusted, the said grants, or either of them, being at the same time claimed to have originated antecedent to such settlement of jurisdiction.' And the existing federal constitution, also, calls, expressly, for a claim of lands, under grants of different states, before the case of federal cognizance can arise. That the word grant is thus used in its legal, technical, sense; 2 Bl. Com. 317. and that no such grant was ever made by Connecticut prior to the decree of Trenton, will satisfactorily appear from the journals of congress: 8 vol. 74. 9 vol. 156. 10 vol. 294. to 299. After all, the constitution of the United States only secures the right of action, which may subsist without the right of entry, and is not destroyed, or impaired, by the act of assembly; an act of public police, for the purposes of internal, self government.

Dallas, in concluding for the commonwealth, divided the consideration of the general question (whether the act was constitutional?) into an inquiry, 1st. Whether the subject of the law, was constitutionally proper? And, 2d. Whether there was any departure from constitutional principles, in the regulations, for carrying the law into effect?

1st. It is the duty of every government to protect the rights of property, and to preserve the public peace. An evil subversive of those rights, fatal to that peace, existed in Pennsylvania at the period of passing the act. The state laws, then in force, were incompetent to a cure of the evil. The federal government could not interpose, either with its legislative, or judicial, power. And

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unless the state could administer to her own relief, the case was desperate and dreadful.

What was the evil that existed? By the decree of Trenton, it was settled, that Pennsylvania had the exclusive right of soverignty, soil, and pre-emption, as to the lands in question; by a retrospective recognition of the boundaries, described in the charter from Charles the second to William Penn. The laws of Pennsylvania must, therefore, be applied to every transaction respecting those lands; and in the years 1700 and 1729, it had been made unlawful to purchase any part of them from the Indians. 1 State Laws, 5. 248. Yet, in July 1754, the Susquehanna and Delaware companies, in defiance of the laws, made a purchase from the Indians; and without a grant from Connecticut, or a grant from Pennsylvania, but merely under colour of a grant from the Indians (which the acts of assembly declared to be null and void) they, and persons succeeding to their pretensions, have continued, from that time to the present, to annoy the peace, and to insult the government of Pennsylvania, by the most flagrant acts of outrage, usurpation, and contumacy; insomuch that even an attempt was made to erect an independent state within her territory. 2 vol. State Laws, 82. Reviewing, however, the transactions only subsequent to the final decree of Trenton (30th December 1782) we find, that the district of country, called the Seventeen Townships, was all that the Connecticut claimants then occupied. But, still, as Pennsylvania had previously issued grants for the same land, she was bound to sustain the rights of her grantees. Every pacific and conciliatory instrument was employed, for that purpose, before the state resorted to force, or to denunciation. Commissioners were appointed to negotiate a compromise between the adverse claimants; and an act was passed on the 13th of March 1783, to suspend all process against the Wyoming settlers during the negotiation: 2 vol. State Laws, 146. Hall & Sellers's edit. but the commissioners were spurned, baffled, and defeated; and the suspending law was repealed, on the 9th of September 1783, because it was evident, that the clemency and moderation of the legislature 'had been mistaken and treated with neglect.' Ibid. 197. The spirit of conciliation was, nevertheless, indulged much longer. An act was passed on the 15th of September 1784, 'for the more speedy restoring the possession of certain messuages, lands, and tenements, in Northumberland county, to the persons who lately held the same,' and had been violently evicted. Ibid. 391. An act of oblivion and pardon was, also, passed, on the 24th of December 1785, as to all crimes and offences committed on or before the 1st of November preceding, under colour of the Wyoming controversy; but the supreme executive council was, at the same time, authorised, to employ a competent body of the militia, in support of the magistrates. To gratify the inhabitants, a part of Northumberland

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was erected into a new county, and called Luzerne, on the 25th of September 1786. 2 vol. 465. 486. Dall. edit. But the great effort for the restoration of harmony and order, was the act, usually styled 'the confirming law,' passed on the 28th of March 1787. This act recites, that 'the interfering claims have occasioned much contention, expense, and bloodshed; and the assembly being desirous of putting an end to those evils, by confirming such of the Connecticut claims, as were acquired by actual settlers prior to the termination of the dispute [by the decree of Trenton] agreeably to the petition of a number of the said settlers, and by granting a just compensation to the Pennsylvania claimants.' Commissioners were again appointed, for carrying the confirming law into effect; but 'when they met, in pursuance of the law, they were interrupted in their proceedings by the combinations, threatenings, and outrageous violence, of certain lawless people in the county of Luzerne, and obliged to fly for the preservation of their lives;' aided by persons who were severely wounded on the occasion. The confirming law was thereupon suspended (29th March 1788) 3 vol. 450. 530. Hall & Seller's edit. and, afterwards, on the 1st of April 1790, it was condemned and repealed, as unjust and unconstitutional. 2 vol. 786. Dall. edit. During this period of legislative patience and conciliation, it is matter of public notoriety, that every pacific overture was condemned; every coercive measure was resisted, or evaded; the powers of government were taken into the hands of voluntary associations of individuals; the sheriffs, and other public officers, were menaced and defied; the commissioners of the government were insulted, assaulted, and imprisoned; the Pennsylvania claimants were waylaid and murdered; the number of intruders was daily augmented; and the extent of their encroachments was indefinitely enlarged.

For the magnitude of this evil, did the laws in force, furnish an adequate remedy? The Connecticut claim was now spread over the whole county, extending beyond the original seventeen townships, throughout the north-western boundary of the state. Where the land was actually occupied by a Connecticut claimant, no Pennsylvania patentee could safely enter; and the danger increased, if the possession was vacant. The process of ejectment, or forcible entry and detainer, or any other civil process, was not effectual to give to the right of property, protection and enjoyment; and even the force of the militia had failed. The evil was an intrusion upon lands (not to try a title, not to submit to the dispensations of the judicial power, but) to seize, possess, and hold, by force, violence, and terror. There was no law, in existence, that could afford a remedy; and, yet, there is no man, who will contend, that a remedy ought not to be provided.

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Could the federal government afford an adequate remedy? The case was not within their legislative, or executive, owers, either expressly, or as an incident to an express power. It is a case of domestic violence; as to which the federal government can only interfere, 'on application of the state legislature, or of the executive, when the legislature cannot be convened.' Const. U. S. art. 4. s. 4. Nor could the judicial power of the United States afford relief. It provides, indeed, for a suit between citizens, claiming grants under different states; but it no where provides, for prosecutions by a state, against its own citizens, committing offences against her municipal laws. Ibid. art. 3. s. 2. Amendments. Acts Congress, 3 vol. 131. 1 vol. 53. s. 9. Ibid. 55. s. 11. Ibid. 57. s. 12. Ibid. 58. s. 13. In the Commonwealth v. Cobbett. 3 Dall. Rep. 467. The principle was discussed and settled; and in Rush v. Cobbett, the jurisdiction of the federal Courts, was adjudged to apply only to cases of contract; and not to a case of damages, for a libel.

The competency of the state government to redress the evil, is a necessary inference from the incompetency of any other power, known to our constitutions and laws, unless it is expressly prohibited. Now, it is not expressly prohibited; and it cannot, by any act of perversion, be assimilated to an attainder law; to an ex post facto law; or to a law impairing the obligation of contracts. Nor is it a legislative encroachment upon the judicial department. It decides no question of personal guilt; it inflicts no punishment; it merely declares in this, as in every instance of the penal code, what shall constitute an offence, and how the offender shall be punished.

2d. Having thus vindicated the subject of the law, from the imputation of being unconstitutional; it is next to be examined, whether there is any departure, from constitutional principles, in the regulations for carrying it into effect?

In the construction of a remedial statute, the previous mischief is to be considered. Here, the act of assembly describes the offence, in the very terms of the mischief: 1st. 'Taking possession of, entering, intruding, or settling on lands, &c. by virtue, or under colour of any conveyance of half share right, or other pretended title, not derived from the authority of this commonwealth, &c.' And, 2d. 'Conspiring for the purpose of conveying, possessing, or settling on any lands within the limits aforesaid, under any half share right or pretended title as aforesaid; or for the purpose of laying out townships by persons not entitled or acknowledged, by the laws of this commonwealth.' If the description of the offense contains nothing unconstitutional, does the nature of the punishment? No: it is fine and imprisonment; and the offender is to be removed from the premises, of which he was tortiously, and unlawfully possessed, after full notice of the law, by proclamation, and publishing

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in Court. 3 vol. State Laws, 703. s. 1, 2, 3. 6. This proceeding by indictment, and the expulsion upon conviction, are said, however, to destroy the right of entry, upon which alone the civil remedy of ejectment can be pursued. But the law contemplates no such entry, in the description of the offence; for, let it be repeated, it is a tortious entry, to hold by force; and not a lawful entry to try a right, that the legislature condemns and punishes.

After advisement and deliberation, the Judges delivered their opinions, seriatim.

SHIPPEN, Chief Justice, YEATES and SMITH, Justices, concurred in declaring, that the act of assembly, on which the indictment is founded, was constitutional, in all its relations.

BRACKENRIDGE, Justice.

The second count in the indictment, is founded upon the second section of the act of assembly; and the special verdict finds expressly, that the defendants did conspire for the purpose mentioned in that section. The purpose was, 'to lay out townships in the county of Luzerne, by persons not appointed, or acknowledged, by the laws of this commonwealth.' Now, the term township, indicates a local jurisdiction, for objects of local police, with powers and officers to effectuate the jurisdiction; and a conspiracy by individuals to erect such townships, is an encroachment upon the rights and authority of the state. It is an offence indictable at common law, and the legislature, with a view more effectually to prevent its commission, had an unquestionable power to increase the punishment.

As to the first section of the act of assembly, I am not prepared to pronounce, that it is unconstitutional; and, consequently, I could not, even on that ground, decide, at present, to arrest the judgment. But it is enough to observe, that on the finding of the jury, I shall be ready to give judgment, for the commonwealth, on the second count of the indictment, when the subject is brought before us in the Circuit Court.(a)

(a) The cause was argued, upon the other objections, in arrest of judgment, before the Supreme Court, in December Term 1804. See post.