1802. "and against the peace and. dignity of the commonwealth of "Pennsylvania. "JOSEPH B. McKEAN, 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, at a session held at Wilkesbarre, Luzerne county, 'in Mau 1802, the Júry found a special verdict, in these terms: "And now a Jury of the county being called, came, to wit, "Thomas Duane, Lazarus Denison, Peter Grubb, John Cary, "Nathan Beach, Thomas Wright, Ebenezer Slocum, Nathan Wal"ler, Abel Pierce, Jacob Bedford, Timothy Beebe, and Abiel Fel"lows, who being duly impanelled, elected, sworn, and affirm"ec, to try these issues, on their oaths and affirmations, do find "that the defendants, John Franklin and John Jenkins, did, "after the 11th of April 1795, at the county of Luzerne, con"spire and combine for the purpose of conveying, possessing, " and settling, on lands within the said county, under a pretended "title not derived from the authority of this commonwealth, or "of the late proprietaries of Pennsylvania before the revolution, "contrary to the form of an act of general assembly of this com"monwealth, passed the 11th of April 1795, entitled an act to "prevent intrusions on lands within the counties of Northampton, "Northumberland, and Luzerne. And the Jurors aforesaid, on "their oaths and affirmations aforesaid, do further find that the "said John Franklin and John Jenkins, after the 11th of April 1795, at the county aforesaid, did conspire and combine for "the purpose of laying out townships in the said county of Lu"zerne, by persons not appointed or acknowledged by the laws "of this commonwealth, contrary to the form of the act of the 66 general assembly aforesaid; but whether the said defendants are guilty in manner and form as they stand indicted, they "know not, and pray, therefore, the opinion of the Court. And "if the Court here should be of opinion that the said act of gene"ral assembly is not contrary to the constitution of the United "States, or of the state of Pennsylvania, then they find the said "defendants guilty in manner and form as they stand indicted, "but if the Court should be of opinio. that the said act of gene"neral assembly is contrary to to the constitution of the United "States, or of the state of Pennsylvania, then they find the said "defendants 16 66 "defendants not guilty in manner and form as they stand indicted. "And the said Elisha Satterlee and Joseph Biles they find not "guiity in manner and form as they stand indicted." Upon this finding of the jury, the defendant filed the following reasons in arrest of judgment: 1st. The law on which this indictment is grounded, is unconstitutional. 2d. The offences charged are not described with convenient and legal certainty. 3d. No act is stated, in either count, to have been committed in pursuance of the combination and conspiracy. 4th. Two different crimes are charged in the first count of the indictment. 5th. It is not stated in the second count, that the combination and conspiracy was to lay out townships within Luzerne county, or elsewhere, nor are the townships in any wise described. 6th The cause was never pending in the Circuit Court. 7th. The certiorari is to remove an indictment against four persons, for two offences; and there is no such indictment. (1) The act of assembly, to which the indictment and proceedings refer, was passed on the 11th of April 1795; 3 State Laws, 703. Dall. edit. and the sections material, in the present case, were the following: Sec. 1. Be it enacted by the senate and house of representa"tives of the commonwealth of Pennsylvania, in general assembly "met, and it is hereby enacted by the authority of the same, That "if any person shall, after the passing of this act, take possession "of, enter, intrude, or settle on any lands, within the limits of "the counties of Northampton, Northumberland, or Luzerne, by "virtue or under colour of any conveyance of half hare right, or any other pretended title, not derived from the authority of "this commonwealth, or of the late proprietaries of Pennsylva"nia before the revolution, such person, upon being duly con"victed thereof, upon indictment in any Court of Oyer and Ter"miner, or Court of General Quarter Sessions, to be Held in "the proper county, shall forfeit and pay the sum of two hundred "dollars, one half to the use of the county, and the other half "to the use of the informer; and shall, also, be subject to such "imprisonment, not exceeding twelve months, as the Court, be"fore whom such conviction is had, may in their discretion di"rect. Sect. 2. "And be it further enacted by the authority aforesaid, "That every person who shall combine or conspire for the pur"pose of conveying, possessing, or settling on any lands within. (1) The 6th and 7th exceptions were filed, at a subsequent stage of the cause, after the 1st exception had been over-ruled. 2 L VOL. IV. "the A 1802. "the limits aforesaid, under any half share right or pretended " title as aforesaid, or for the purpose of laying out townships by "persons not appointed or acknowledged by the laws of this "commonwealth, and every person that shall be accessary "thereto, before or after the fact, shall, for every such offence, "forfeit and pay a sum not less than five hundred, nor more "than one thousand dollars, one half to the use of the county, "and the other half to the use of the informer; and shall, also, "be subject to such imprisonment at hard labour, not exceed"ing eighteen months, as the Court in their discretion may di"rect. "" 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. Fourn. 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 Laris, 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 occa sions, 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, pos"sessing, and protecting property and reputation, and of pursuing "their own happiness." We We answer: Property is a creature of society; and the right, 1802. 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 ana 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 coukl, 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 ac quire, possess, and protect, property, which belonged to Pennsyl vania; 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 annul 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 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 ef"fect." 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 year contract 1802. 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 legisiate for the protection of her property, for the vindication of her sovereignty, is there in the manner of legisiating, any violation of a constitutional, or established, principle of jurisprudence? No: the offence is defined, and the punishment pres ribed, 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 con stitution, because it exercises a power, in its nature judicial, a... not legislative. We |